Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004306
(EA/00895/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of April 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SAMI SAAD
Appellant
AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: -
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

Heard in Edinburgh on 8 April 2025

DECISION AND REASONS
1. The Appellant appeals with permission against decision of the First-tier Tribunal to dismiss his appeal under the Immigration (Citizens’ Rights) Appeals (EU Exit) Regulations 2020.
2. The matters in issue before the First-tier Tribunal were identified in the 8 April 2024 decision refusing to grant the Appellant leave as a joining family member under Appendix EU. First, the Respondent was not satisfied that the Appellant’s wife, Romanian national , had been granted limited or indefinite leave under Appendix EU. Second, the required evidence to demonstrate the family relationship had not been provided.
3. On appeal to the First-tier Tribunal, the Appellant sought to answer those two reasons for refusal by the production of a letter from the Home Office to his wife confirming that her application for leave to remain under Appendix EU had been successful, and a marriage certificate. Having produced those two documents, perhaps in the belief that the appeal would be resolved in his favour, the Appellant elected for the appeal to be determined on the papers.
4. The matter came before Judge Mulholland, sitting at Hatton Cross. It is apparent from the decision that something has gone wrong, either with the papers supplied to the Tribunal by the administrative staff, or with the decision itself. That is because Judge Mulholland’s decision makes no reference to the two matters in issue in the appeal. Instead it identifies the issues in the case as being “has the appellant demonstrated that his sponsor has been present continuously in the United Kingdom” and “was he issued with a Residence Card or Family Permit”. Having found no evidence before him to confirm either of these matters, Judge Mulholand dismisses the appeal.
5. The Appellant now appeals relying on the guidance in Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC). He submits that it is procedurally unfair for the Tribunal to have:
a) Relied on new reasons to dismiss the appeal in circumstances where these matters were not in issue between the parties;
b) Denied the Appellant the opportunity to address those issues;
c) Failed to resolve the actual matters in the appeal.
6. The appeal before me proceeded in the absence of the Appellant and his Sponsor. The Appellant wrote to the Tribunal explaining that his wife is heavily pregnant and is suffering complications and does not therefore wish to make the journey to the hearing centre. He invites me to determine the appeal on the papers before me. I heard briefly from Mr Mullen, who confirmed that as far as the Secretary of State is concerned, the only reasons for refusal are those set out in the refusal letter: that is to say there is not, to Mr Mullen’s knowledge, a supplementary refusal letter or the like.
My Findings
7. There has been a clear procedural unfairness in this case for the reasons set out above. The issues decided against the Appellant were not in fact relevant to the decision the Tribunal had to make, and the Appellant, and indeed the Respondent, were denied the opportunity to address the Tribunal on them. I therefore set the decision of the First-tier Tribunal aside.
8. The actual matters in issue are those set out in the refusal letter dated 8 April 2024. Both are, Mr Mullen concedes, addressed by the Appellant’s production of the relevant evidence, namely the marriage certificate showing that the Appellant and his EU Sponsor Ms Apostal were married in Romania on the 22 January 2020, and a letter from the Home Office to Ms Apostel dated 3 August 2021 confirming that she has been granted pre-settled status under Appendix EU paragraph EU3. The appeal is therefore allowed.
Decisions
9. The decision of the First-tier Tribunal is set aside.
10. I remake the decision by allowing the appeal.
11. There is no anonymity order in this appeal.
Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
8 April 2025