Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002316

First-tier Tribunal No: EA/03390/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 March 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

ORGEST URUCI
(NO ANONYMITY ORDER MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Ms McKenzie – Senior Home Office Presenting Officer

Heard at Field House on 19 February 2025

DECISION AND REASONS
Introduction
1. The appellant sought limited leave to remain in the United Kingdom under the European Union Settlement Scheme. The respondent refused his application and the First-tier Tribunal dismissed his appeal against that refusal. By a decision dated 9 December 2024, this Tribunal found that the First-tier Tribunal had erred in law such that the decision to dismiss the appeal had to be set aside and a decision in respect of the appeal be remade by the Upper Tribunal. This is that remaking decision which follows a hearing on 19 February 2025.
2. By email dated 14 February 2025, the appellant excused his attendance at the hearing due to his wife’s advanced pregnancy which he describes as ‘not normal’. He requested that the hearing go ahead in his absence and relies on the case of Lata v Secretary of State for the Home Department [2023] UKUT 163 and argues that the hearing should focus on the issues identified by the respondent. Ms McKenzie did not object to this proposal and we agreed to proceed in the absence of the appellant.
3. We have therefore made our decision on the basis of the documentary evidence that has been served and the submissions from Ms McKenzie at the hearing..
Background
4. As recorded at [1-4] of the error of law decision, the background to this appeal is as follows;
The appellant is a 24-year-old citizen of Albania. On 27 May 2023 he made an application for leave to remain in the United Kingdom under the European Union Settlement Scheme (EUSS). The basis of his application was that he had been resident in the United Kingdom since 1 June 2020 as the spouse of a relevant EEA citizen, Petya Petrova.

On 16 September 2023 the respondent refused the appellant’s application “under rule EU6”. This was a reference to paragraph EU6 of Appendix EU to the Immigration Rules which provides that “A valid application made under this Appendix which does not meet the requirements for indefinite leave to enter or remain or limited leave to enter or remain will be refused.” The respondent explained that the appellant did not meet the requirements for leave to remain because the application was accompanied by no evidence of the appellant’s eligibility for leave to remain, and in particular no evidence of the appellant’s continuous residence in the United Kingdom since before 31 December 2020, and no evidence of the appellant’s relationship with Ms Petrova.

The appellant appealed against that decision to the First-tier Tribunal. In his grounds of appeal the appellant said that he had found his marriage certificate and he served a bundle of evidence which he said demonstrated his relationship with Ms Petrova and his continuous residence in the United Kingdom since 2020. He requested that his appeal be considered without a hearing on the basis of the bundle of evidence he served and the material submitted to the respondent with the application.

The respondent did not request a hearing so the appellant’s appeal was considered on the papers by First-tier Tribunal Judge Manyarara (“the Judge”) on 1 March 2024. In a decision promulgated on 27 March 2024 the Judge dismissed the appellant’s appeal because she found that the appellant had submitted his application late, i.e. after 30 June 2021. On 30 April 2024, permission to appeal against that decision was refused by FTJ Boyes. The appellant renewed his application and was granted permission to appeal by Upper Tribunal Judge O’Brien on 2 August 2024 on the grounds that the Judge had taken a point against the appellant which the respondent had not raised.
5. In the error of law decision it was found that the Judge had erred when dismissing the appeal on the basis the application had been submitted late, because the respondent had accepted the application to be a valid one and raised no issues about its lateness. The issue raised by the respondent in the decision letter and the matter that needed to be considered in this appeal was whether the appellant can establish that he met the eligibility requirements in Appendix EU of the Immigration Rules for being granted the leave he sought.
The Legal Framework
6. So far as is relevant, Appendix EU sets out the eligibility requirement for being granted indefinite leave to remain as follows;
Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside

EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member….. where the Secretary of State is satisfied, including where applicable by the required evidence of family relationship, that, at the date of application one of the conditions 1 to 7 is set out in the following table is met;
7. The condition relevant to the appellant is 3;
Condition is met where

(a) the applicant:

(i) …
(ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; and

(b) the applicant has completed a continuous qualifying period of five years in any (or in any combination) of these categories; and

(c) since then no supervening event has occurred in respect of the applicant
8. So far as is relevant, the eligibility requirement for being granted limited leave to remain is set out in Appendix EU as follows:
Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen

EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Condition 1 is met where:
(a) The applicant is:
(i)…
(ii) a family member of a relevant EEA citizen….
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen
9. The definition of a “relevant EEA citizen” in Appendix EU that applies in a case where the application for leave has been made late, includes (i) an EEA citizen resident in the UK for a continuous qualifying period which began before the specified date of 31 December 2020 who (ii) has been granted limited leave to remain which has not lapsed or been cancelled revoked or invalidated.
10. The definition of a “family member of a relevant EEA citizen” in Appendix EU includes the spouse of a relevant EEA citizen where the marriage was contracted before the specified date of 31 December 2020
11. A “continuous qualifying period” is defined in Appendix EU as a period of residence in the UK
(a) which began before the 31 December 2020 (the specified date)
(b) during which:
(i) there was no absence(s) from the UK which exceeded six months except for absences in prescribed circumstances;
(ii) the person did not serve a sentence of imprisonment in the UK; and
(iii) no order to deport or exclude the person was made
(c) which continues at the date of the application (unless in specified circumstances that are not relevant here)
12. Applying this labyrinthine legal framework we are satisfied that to establish that he met the eligibility requirements for being granted the limited leave to remain he seeks the appellant must prove on the balance of probabilities that:
(i) He is the spouse of an EEA citizen
(ii) That the EEA citizen was resident in the UK from a date before 31 December 2020
(iii) That the EEA citizen was granted limited leave to remain that has not lapsed, been cancelled, revoked or invalidated
(iv) That the EEA citizen’s residence in the UK continued on the date of the appellant’s application on 27 May 2023 without an absence that exceeded six months between those dates
(v) That the appellant was also resident in the UK from a date before 31 December 2020
(vi) That the appellant’s residence in the UK continued at the date of the application on 27 May 2023 and there had been no absence which exceeded six months between those dates
13. Relying on the Court of Appeal decision in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921 Ms McKenize sought to persuade us in her submissions that the appellant additionally needed to provide a document to show that his residence was being facilitated by the United Kingdom prior to 31 December 2020. This argument however demonstrated a fundamental misunderstanding of the Court of Appeal’s decision. Celik was a case dealing with a durable partner and not a spouse. A distinction is made between those two categories of person in Directive 2004/38/EC (the “free movement Directive”) whereby a spouse (and other “family members”) of an EEA citizen had a right to reside in the United Kingdom subject to certain conditions, but that right to reside did not extended to a durable partner (and other “extended family members”) for whom the obligation was only to facilitate residence in accordance with national legislation. In those circumstances the Court held that a durable partner needed to demonstrate by producing a relevant document issued by the United Kingdom, that their residence in the country was being facilitated by the state. That was not the case for a spouse for whom the free movement directive conferred a right to reside. This is reflected in the definition of a durable partner and a family member of a relevant EEA citizen in Appendix EU. In short we reject as fundamentally wrong, the submission that the appellant was required to provide a document showing his residence in the United Kingdom prior to his application was being facilitated by the United Kingdom.
Analysis and Findings
14. Ms McKenzie confirmed that having had time to review the documentary evidence submitted by the appellant, the respondent does not dispute that the appellant married Petya Petrova, an EEA citizen in Bulgaria on 21 May 2019. Neither did Ms McKenzie challenge the evidence that on 2 October 2020 Ms Petrova was granted limited leave to remain which has not lapsed or been cancelled. In the light of these uncontested facts the only remaining issue is whether the appellant and Ms Petrova were resident in the United Kingdom from before 31 December 2020 until the application in May 2023 without an absence which exceed six months.
Continuous residence
15. We note that there is a lack of evidence before us. Neither the appellant nor Ms Petrova give a clear account of their residence in the United Kingdom. Ms Petrova provides a short statement confirming that the appellant is her husband and that they have recently moved address but provides no narrative of their life in the United Kingdom. The appellant has not made a statement and the only evidence him is a signed Grounds of Appeal in which he states that he has been in the relationship with Ms Petrova since November 2017 and they married in May 2020. He states that they are living as a family and ‘have a baby now.’ This does not accord with the marriage certificate which shows that the couple married on 21 May 2019. He gives no detail in this document about their residence in the United Kingdom.
16. As identified in the error of law decision, this hearing was fixed so that the appellant and Ms Petrova would have an opportunity to give oral evidence about their residence in the United Kingdom. The appellant has not attended and his explanation for his absence from the hearing is inconsistent. As reflected in the Error of Law decision annexed, the appellant did not provide an explanation for his non-attendance at that hearing until the afternoon when he said he had not attended because his partner had suffered a miscarriage. Less than three months later his explanation for not attending this hearing and asking us to proceed without him is the fact that his wife’s ‘advanced’ pregnancy is not normal. As a matter of logic both assertions cannot be correct.
17. We are left therefore with an absence of direct evidence from the appellant and Ms Petrova about their residence in the United Kingdom and without a consistent explanation for why there is no such evidence in circumstances where such evidence could reasonably be expected. We draw an adverse inference from the failure by the appellant and his wife to provide direct evidence about their residence in the United Kingdom and from the inconsistent explanations that have been provided about the date of the marriage and the reasons for non-attendance at hearings. We note too that the respondent’s decision letter refers to the absence of a National Insurance number meaning that it was not possible to conduct automated checks with other government departments to confirm the appellant’s residence.
18. We turn therefore to the documentary evidence that has been adduced by the appellant and that the respondent, despite being given the opportunity to do so, has not challenged.
19. In his application the appellant says he has been resident in the United Kingdom since 1 June 2020. There is no evidence of his entry to the country or of where he lived at that time. The appellant relies instead on a shorthold tenancy agreement in respect of a property in North London for the term of 12 months from 4 August 2020 which is in the joint names of the appellant and Ms Petrova. Two receipts for cash payments made in August and December 2020 that are consistent with that Agreement are also provided.
20. The appellant also relies on bank statements for a joint account with Barclays held by the appellant and Ms Petrova which gives their address as the one for which the Tenancy Agreement was signed. Statements for a continuous period from August 2020 to May 2023 have been provided. We are satisfied that those statements demonstrate UK based transactions being made between August 2020 and the date of the appellant’s application for leave to remain in May 2023. These transactions include cash deposits and withdrawals from machines in the United Kingdom. There are however extended periods where the account is only used for transfers from other accounts and receiving giro payments e.g. from 1 February 2021 - 20 April 2021 when the account is only used to receive incoming transfers from an account *7304 and giro payments in from different individuals and to make transfers back into the *7304 account or bill payments to individuals. Although the account is in joint names, it is not possible to discern from these bank statements who is responsible for the different transactions shown.
21. The appellant also relies on bank statements for two bank accounts held in his sole name. One is a Monzo bank account for which he provides statements from 1 September 2020 to 1 August 2021. These statements show regular frequent transactions which are clearly in the UK. The second account is with Barclays and statements for the period 4 August 2021 to 16 January 2024 have been adduced. These statements in the appellant’s name, itemise 1344 transactions and again these show very frequent transactions including credits and debits many of which can be identified as being in the UK. The two bank accounts appeared to demonstrate transactions in every month.
22. Bank statements in respect of a Santander account held in the sole name of Ms Petrova covering a period from 27 September 2022 to 27 April 2023 have also been adduced. The address recorded for Ms Petrova on these statements is the address in North London for which the tenancy agreement was taken out. These statements show considerably fewer transactions than the appellant’s bank accounts and also show transactions taking place outside the United Kingdom. The statement for the period 27 October 2022 – 26 November 2022 for example show cash withdrawals being made at an ATM in Istanbul, while the statement for the period 28 November 2022 – 26 December 2022 show withdrawals being made from an ATM in Sofia. The bank statements for January – April 2023 meanwhile reveal there were only two cash withdrawals made in Nottingham and Burton on Trent during this period, with all the other transactions recorded being monthly transfers into the account from “MOTOR CLEANER” rapidly followed by transfers of that money out of the account to “PETYA PETROVA REFERENCE FAMILY SUPPORT”.
23. Other documentary evidence relied upon includes two utility bills. A bill from Thames Water for the period April 2021 to March 2022, which is in Ms Petrova’s name and shows the appellant as an additional account holder. This bill is for the same address as the tenancy agreement. An Octopus energy account for the period from 23 November 2023 to December 2023 in the appellant and Ms Petrova’s joint names however it relates to a new address in South London. A letter sent to the appellant at the new address in South London dated 9 November 2022 confirms car insurance with LV for the following year, while a renewal quote for car insurance covering the same period was sent to the appellant at the South London address from a rival company “GoSkippy” on 19 October 2022.
24. A birth certificate adduced by the appellant states that on 6 September 2023 at Barking hospital Ms Petrova gave birth to the appellant’s daughter. This certificate has not been challenged by the respondent. The usual address recorded for the appellant and Ms Petrova is recorded the North London address from the 2020 tenancy agreement, meaning there is a conflict between this evidence and the car insurance and Octopus energy documents which suggest that the appellant was by that time living in South London.
25. Bringing this altogether we find that the documentary evidence raises more questions than it provides answers. There has been ample opportunity for the appellant and Ms Petrova to provide answers and an account of their residence in the United Kingdom to substantiate the application being made. For the reasons previously given we draw an adverse inference from the failure to provide such an account. We remind ourselves that the burden is on the appellant to establish his case and on the evidence before us we find that it is not possible to conclude that he has established that it is more likely than not both the appellant and Ms Petrova were resident in the United Kingdom for a continuous qualifying period as defined in Appendix EU.
26. We are satisfied that the regular and frequent transactions in the United Kingdom using the appellant’s personal bank account establish on the balance of probabilities that he has been resident in the United Kingdom between August 2020 and when his application made in May 2023 without an absence of six months. The inference from those transactions that the appellant was present throughout that time is supported by the car insurance documents which correspond to some of the bank transactions.
27. In relation to Ms Petrova however, whilst it is clear from the grant to her of limited leave to remain dated 2 October 2020 that she was resident in the United Kingdom in 2020, and clear from the birth certificate that she was resident in the United Kingdom in 2023, it is not possible to conclude on these basis of the documentary evidence that, on the balance of probabilities, she was resident for a “continuous qualifying period” between those dates. There is a distinct absence of documentary evidence of her presence in the United Kingdom during this period and indeed the limited bank statements in her sole name that have been produced suggest that she has been in Turkey and Bulgaria during that period. This absence of documentary evidence, when considered together with the adverse inference we draw from absence of an account from the appellant and Ms Petrova about their residence, the conflicts in the limited explanation that has been provided about when they married, why they did not attend the hearings and where they were living at relevant times means we cannot be satisfied to the required standard that the Ms Petrova was resident for a continuous qualifying period as is required.
28. In these circumstances we are not satisfied that it is more likely than not that the appellant meets the eligibility requirements for being granted limited leave to remain under the EUSS and therefore his appeal must be dismissed.

Notice of Decision
The appellant’s appeal under the Immigration (Citizens’ Rights Appeals)(EU Exit) Regulations 2020 is dismissed.

V Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

06/03/2025

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002316

First-tier Tribunal No:
EA/03390/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

Orgest Uruci
(NO ANONYMITY DIRECTION MADE)
Applicant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Not Represented
For the Respondent: Mr P Deller – Senior Home Office Presenting Officer

Heard at Field House on 22 November 2024

DECISION AND REASONS
1. The appellant is a 24-year-old citizen of Albania. On 27 May 2023 he made an application for leave to remain in the United Kingdom under the European Union Settlement Scheme (EUSS). The basis of his application was that he had been resident in the United Kingdom since 1 June 2020 as the spouse of a relevant EEA citizen, Petya Petrova.
2. On 16 September 2023 the respondent refused the appellant’s application “under rule EU6”. This was a reference to paragraph EU6 of Appendix EU to the Immigration Rules which provides that “A valid application made under this Appendix which does not meet the requirements for indefinite leave to enter or remain or limited leave to enter or remain will be refused.” The respondent explained that the appellant did not meet the requirements for leave to remain because the application was accompanied by no evidence of the appellant’s eligibility for leave to remain, and in particular no evidence of the appellant’s continuous residence in the United Kingdom since before 31 December 2020, and no evidence of the appellant’s relationship with Ms Petrova.
3. The appellant appealed against that decision to the First-tier Tribunal. In his grounds of appeal the appellant said that he had found his marriage certificate and he served a bundle of evidence which he said demonstrated his relationship with Ms Petrova and his continuous residence in the United Kingdom since 2020. He requested that his appeal be considered without a hearing on the basis of the bundle of evidence he served and the material submitted to the respondent with the application.
4. The respondent did not request a hearing so the appellant’s appeal was considered on the papers by First-tier Tribunal Judge Manyarara (“the Judge”) on 1 March 2024. In a decision promulgated on 27 March 2024 the Judge dismissed the appellant’s appeal because she found that the appellant had submitted his application late, i.e. after 30 June 2021. On 30 April 2024, permission to appeal against that decision was refused by FTJ Boyes. The appellant renewed his application and was granted permission to appeal by Upper Tribunal Judge O’Brien on 2 August 2024 on the grounds that the Judge had taken a point against the appellant which the respondent had not raised.
The Hearing before us
5. Prior to the hearing of his appeal the appellant wrote to the Upper Tribunal and asked that the appeal be allowed on the papers and remitted to the First-tier Tribunal for reconsideration. In response the Tribunal emailed the appellant informing him that the Tribunal would consider first whether there was an error of law in the Judge’s decision and second whether to remake the decision and that if he wanted to contribute to those considerations he would need to attend the hearing.
6. In the event the appellant did not attend the hearing despite numerous attempts to contact him by phone and by email; at the time of the hearing no explanation for that non-attendance had been received. We determined that it would be consistent with the Tribunal’s overriding objective, which includes avoiding delay so far as is compatible with proper consideration of the issues, to proceed notwithstanding the appellant’s non-attendance. Later in the afternoon we received an email from the appellant explaining that he had not attended because his partner had suffered a miscarriage.
The Judge’s Error of Law
7. At the hearing Mr Deller conceded that the Judge’s decision contained a material error of law such that it had to be set aside. We agreed with that analysis for the following reasons: The issue which led to the Judge dismissing the appeal was the fact the application was submitted late. This was not, however, the reason why the respondent had refused the application. In fact, despite the fact the application had been submitted late, the respondent had accepted the application and considered it on its merits. This is apparent from the fact the application was refused applying paragraph EU6 of Appendix EU to the Immigration Rules which is the provision for refusing a valid application on the basis that the substantive requirements of the Appendix had not been met. The Judge was simply not entitled to refuse the application on the grounds of the late application when the application had been accepted by the respondent and substantively considered.
Remaking the decision
8. Despite the appellant’s written request that the matter be remitted to the First-tier Tribunal for reconsideration we determined that it would be consistent with the overriding objective to remake the decision in the Upper Tribunal. This is the presumption applying the relevant practice directions and practice statements and it also in our judgment would involve dealing with the appeal in a way which is proportionate to the complexity of the issues, the anticipated costs and the resources of the parties.
9. We also considered that to deal with this case fairly and justly it was necessary to adjourn the remaking of the decision to enable the parties to adduce live evidence and or to serve further documentary evidence. We reached this conclusion because, firstly, we were conscious that the way the appeal had been considered so far meant that there had been no opportunity for the respondent to scrutinise the documentation that the appellant relied upon to establish his eligibility under the EUSS. Equally we were conscious of the fact that the appellant and his wife had not had the opportunity to give oral evidence of their continuous residence in the United Kingdom from June 2020 onwards.
10. Accordingly we adjourned the remaking of a decision in respect of the appellant’s appeal and issued the directions set out below.
Notice of Decision
The appellant’s appeal is allowed.
The decision of the Judge contained an error of law and is set aside.

Directions

1. The appeal will be relisted in the Upper Tribunal for remaking on the first available date after 1 February 2025

2. By no later than 4pm on 13 January 2025 the respondent is to file and serve any argument or further evidence on which she wishes to rely at the remaking hearing.

3. By no later than 4pm on 27 January 2025 the appellant is to file and serve any further evidence concerning his continuous residence in the United Kingdom and his relationship with Ms Petrova

Luke Bulpitt
Upper Tribunal Judge Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 December 2024