Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004039

First-tier Tribunal No: EU/57930/2023
LE/01683/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 October 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE WILSON

Between

MOHAMED HASSAN ALI
(ANONYMITY ORDER not MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Ms S Rushforth (Senior Home Office Presenting Officer)

Heard at Cardiff Civil Justice Centre on 9 September 2025

DECISION AND REASONS
Background
1. The background to this appeal is contained in the Upper Tribunal decision and reasons of Upper Tribunal Judge Obrien and Deputy Upper Tribunal Judge Wilson dated 19 May 2025 annexed hereto and is not repeated here.
2. The Upper Tribunal decision and reasons dated 19 May 2025, records the Respondent’s concession that the First tier Tribunal Judge’s decision involved the making of a material error of law because the judge had failed to provide adequate reasons for her finding that the appellant had “not met the required residence periods needed to meet the rules”.
3. On the 19 May 2025 case management directions were issued for a remaking hearing. This included a direction that “The Appellant’s bundle of evidence and witness statement should address the Respondent’s concerns. Where there are periods of residence that are not supported by documentary evidence, the Appellant should explain the reason for the absence of such evidence in his witness statement.”.
The Hearing
4. On 20 August 2025, the Appellant applied for the appeal to be determined on the papers. The application was opposed by the Respondent as there would be no forum to challenge the evidence and make submissions on any new evidence. Given the Respondent’s position Judge Lodato refused the application. On 4 September 2025, the Appellant renewed his application for the case to be determined on the papers. The application was considered on the morning of the hearing. The Respondent opposed the application. The application was refused because there were gaps in the documentary evidence which the Tribunal wished to explore. The Appellant was in attendance. In the circumstances we considered it was in the interests of justice and fairness for the Tribunal to hold a hearing.
5. The Appellant was unrepresented and was content to proceed as an Appellant in person.
6. Ms Rushforth and the Appellant confirmed that all documents and written argument upon which they wished to rely were before the Tribunal.
7. We have considered all of the documentary evidence and written arguments. However, we do not rehearse all the documentary evidence in detail but include in this decision and reasons such evidence as was relevant to our decision.
8. The Appellant introduced his witness statement and was cross examined. A Somali interpreter was provided at the hearing.
9. Ms Rushforth and the Appellant made submissions. The submissions are set out in the record of proceedings and have been considered.
Preliminary Issue
10. At the outset of the hearing Ms Rushforth raised a preliminary issue. The Appellant, in his witness statement sought to rely on a change in the rules that came into force on 16 July 2025. The Appellant asserted that the rules clarified that “applicants for settled status under the EUSS are now only required to demonstrate 30 months of residence within the last 60 months, rather than continuous residence with strict 6-month absence limits”.
11. Ms Rushforth submitted that the relevant rules for the purposes of this appeal were those that applied at the time of the Respondent’s decision. Ms Rushforth asserted that as the changes to the Rules, relied upon by the Appellant, did not come into force until 16 July 2025 they postdated the Respondent’s decision and were not relevant. Ms Rushforth invited the Tribunal to make a preliminary decision on this issue so that she could focus her submissions. We declined, indicating we would reserve our decision and it was a matter for Ms Rushforth if she wished to make submissions in the alternative to cover both eventualities.

The Applicable Rules
12. As set out above, Ms Rushforth submitted that the amendments to the rules, relied upon by the Appellant, came into effect on 16 July 2025 and are not relevant. We agree. The amendments to Appendix EU were made pursuant to the Statement of Changes HC 836 (See APP EU1 to APP EU3). The implementation section of HC 836 states that the relevant changes “shall take effect on 16 July 2025”. There are no express transitional or retrospective provisions. Applying the dicta in Odelola v Secretary of State for the Home Department [2009] UKHL 25 compliance with the rules is to be assessed against the rules as they apply as at the date of the Respondent’s decision. Odelola also clarifies that in absence of any express provision to the contrary the immigration rules apply until new rules are made and come into effect. The Reasons for Refusal letter is dated 14 December 2023. The changes relied upon by the appellant took effect from 16 July 2025 and do not include any transitional or retrospective provision. Accordingly, such changes did not apply at the time of the Respondent’s decision and they cannot be relied upon by the Appellant in this appeal.
Applicable Provisions of Appendix EU
13. For the purposes of this appeal the relevant provisions of Appendix EU and the Annex 1 to Appendix EU are EU14 and the definition of “continuous qualifying period”.
14. Paragraph EU14 sets out the requirements for limited leave to enter or remain in the United Kingdom, with condition 1 requiring a person to be a relevant EEA citizen who is not eligible under paragraph EU11 solely because they have completed a continuous qualifying period of less than five years.
15. At the time of the Respondent’s decision, a “continuous qualifying period was defined in Annex 1 to Appendix EU of the Immigration Rules, as a period of residence in the United Kingdom which began before the Specified Date (31 December 2020) and continues at the date of application. During this period the Appellant cannot have been absent from the UK for a period which exceeded a total of 6 months in any 12 month period. There are exceptions in relation to absences but the Appellant does not pursue his appeal on the basis of such exceptions.
Issues in Dispute
16. The Appellant does not claim that he is entitled to settled status on the basis that he has 5 years continuous residence. Indeed, the Appellant’s claimed period of residence for the purposes of his application was from December 2020 until 8 August 2023.
17. The Appellant’s case is that from the Specified Date (31 December 2020) he has not been absent from the UK for a period in excess of 6 months in any 12 month period. The Appellant does not rely on any exception that would have entitled him to have been absent from the UK for a period in excess of 6 months in any 12 month period.
18. Accordingly, there is a single issue in dispute and that is whether from 31 December 2020 until the date of his EUSS application made on 8 August 2023, the Appellant was resident in the UK and was not absent from the UK for a period which exceeded 6 months in any 12 month period.

Burden and Standard
19. The burden is on the Appellant to demonstrate that he satisfies the Rules. The standard is the balance of probabilities.
Evidence and Findings
20. The Reasons for Refusal letter is dated 14 December 2023. Accordingly, the Appellant has been on notice of the Respondent’s concerns in relation to his evidence of residency for some time.
21. As set out above, following the error of law hearing, the Appellant was given an opportunity to produce additional evidence. The Tribunal’s directions expressly directed that the Appellant should address the Respondent’s concerns through his bundle of evidence and where there were evidential gaps these should be explained within his witness statement.
22. Despite this there remain significant deficiencies in the evidence produced by the Appellant which are considered below.
23. The Appellant relies upon the tenancy agreement dated 1 June 2020 as evidence of continuous residence. Under cross-examination the Appellant stated that he continues to reside at the property following the expiry of the original term on 30 May 2021. The Appellant asserted that the tenancy continued as an oral agreement following this date. It was put to the Appellant that there was no evidence from his landlord to confirm this. The Appellant stated that he did not know the law, the implication being he did not understand the importance of such evidence. The Appellant stated that the rent was £700 per month. The Appellant stated he paid in cash and that this cash was not drawn from his bank account but rather was paid from his wages that he received in cash as a cleaner. The Tenancy agreement is a core piece of the Appellant’s evidence in relation to his claim of continuous residence. In our judgment, the Tribunal could reasonably expect to see supporting evidence from the Appellant’s landlord in the form of a letter that confirms the tenancy has continued past its original term together with receipts for the claimed cash payments of rent. The absence of such evidence without reasonable explanation significantly undermines the Appellant’s account of his period of continuous residence within the UK
24. Under cross examination it was put to the Appellant that there was a lack of evidence that he had been paying utility bills in relation to the property. The Appellant stated that all utilities had been included within the rental payment. However, we note that this is inconsistent with the terms of the tenancy agreement. Clause 10 of the tenancy agreement states that the tenant shall pay direct to all suppliers charges for gas, electricity, oil, water, sewage and council tax. Accordingly, we find that the appellant has failed to provide a reasonable explanation as to why he has been unable to provide utility bills and council tax bills for his claimed period of residence within the UK. The absence of such evidence, where it can reasonably be expected and without reasonable explanation for its absence, significantly undermines the Appellant’s account of his period of continuous residence within the UK.
25. We accept that the Appellant has provided tax returns for the years 2020 to 2025. The tax returns for the years 2020- 2021, 2021 -2022 and 2022-2023 show a profit from self-employment of between £7100 - £8,400. By their nature the tax returns do not show the months in which the income was received. Accordingly, the weight that we place upon the tax returns as corroborative evidence of continuous residence is significantly reduced given that they do not show a monthly breakdown of income. In addition, the tax returns are not supported by wage slips or invoices which would corroborate the period during which the income was earned and received. The absence of this evidence where it can reasonably be expected and without reasonable explanation for its absence further reduces the weight that we place on the tax returns as corroborative evidence of continuous residence.
26. Ms Rushforth relied upon gaps in the Bank statements produced by the Appellant. She highlighted gaps between January to March 2021, August to November 2021, March to May 2022 and June 2022 to May 2023. We agree that the Appellant has not produced bank statements for these periods. When these gaps were put to the appellant under cross examination he stated that he had been in and out of the UK; that he had provided all Bank statements that were available to him and the Banks did not provide statements for periods where there had been inactivity. In our judgment, the Appellant has not given a reasonable explanation for gaps in the Bank statements provided. As set out below, the Appellant’s explanation that he was in and out of the country is inconsistent with his witness statement which indicates only one period of absence. There is no corroborative evidence that a Bank would fail to provide a statement for periods of inactivity. Accordingly, we find that the lack of Bank statements in relation to the periods identified above significantly undermines the appellant’s account of his period of continuous residence within the UK.
27. Under cross examination it was put to the Appellant that he had not supplied bank statements for the period August 2021 to November 2021. The Appellant stated that he was outside of the UK, in Sweden. This is inconsistent with the Appellant’s witness statement where he indicates one period of absence and states “only one short trip from 4 January 2025 to 1 June 2025”. When this inconsistency was put to the Appellant, under cross examination, the Appellant stated that he was out of the country and whilst he could not remember the exact dates he would sometimes leave the UK and come back. The inconsistency in the appellant’s oral evidence and the evidence contained in his witness statement, which details only one absence from the UK, undermines the appellant’s account of his claimed period of continuous residence within the UK.
28. The Appellant was asked by the Tribunal about his travel from the UK during his claimed period of residence. The Appellant stated that sometimes he would fly and sometimes he would travel by car. When asked whether he had any letters from travel providers detailing his trips from the UK the Appellant stated he did not know that this evidence was important. When the Tribunal asked why he did not think it was important to show evidence of when he was out of the country, the Appellant asserted that he had been absent for no longer than six months. We find that the absence of any documentation showing the appellant’s travel from and re-entry to the UK, where such evidence could reasonably be expected and without reasonable explanation for its absence, undermines the Appellant’s account of his claimed period of continuous residence within the UK.
29. Drawing these threads together, the weight that we have placed upon the Appellant’s tax returns is significantly reduced for the reasons set out above. We have found that the Appellant has failed to produce documentary evidence which the tribunal could reasonably expect without reasonable explanation for its absence. In addition, the appellant has given inconsistent evidence about his periods of absence from the UK. For these reasons, in our judgement, the Appellant has failed to demonstrate that from 31 December 2020 until the date of his EUSS application made on 8 August 2023 he was continuously resident in the UK and was not absent from the UK for a period which exceeded 6 months in any 12-month period. It follows, that in our judgement the Appellant cannot satisfy the requirements of appendix EU, in particular paragraph EU14. For these reasons the appeal is dismissed.

Notice of Decision
The appeal decision is remade and dismissed.

G Wilson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 October 2025