Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004420
and UI-2024 004416

First-tier Tribunal No: EU/57108/2023
and EU/50237/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5th of March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Juscelino Maciel Macedo
Priscila Ferreira Machado
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms S Anzani instructed by Mentor Legal LLP
For the Respondent: Ms Chukwuka, Home Office Presenting Officer

Heard at Field House on 9 January 2025

DECISION AND REASONS
1. The appellants appeal against the decision of First-tier Tribunal Judge S J Clark (the judge) promulgated on the 28th July 2024 which dismissed the appellants’ appeals under the European Union Settlement Scheme (EUSS) against the respondent’s decision dated the 17th November 2023 and 27th December 2023 refusing their applications for settled or pre-settled status. Specifically, the applications were refused under paragraph EU 11 of Appendix EU to the immigration rules. The second appellant’s appeal was dependent upon that of the first appellant.
The Secretary of State’s refusal decision
2. The first appellant, a citizen of Brazil, maintained that he was a relevant EEA citizen at the specified time, 31st December 2020, and met the eligibility requirements for settled status under the EU settlement scheme. The respondent’s underlying refusal decision set out that the first appellant ‘had not provided sufficient information to confirm this’. It was explained that he had provided a national identity card as proof of his identity and EEA nationality, but the national identity card was issued on 3rd of January 2023. Although it was accepted that he was currently an EEA citizen, in order to be eligible for pre-settled status or settled status under the EUSS, as a relevant EEA citizen, he needed to demonstrate that he met the definition of ‘relevant EA citizen’ as defined in Annex 1 to Appendix EU before the specified date of 2300 hours GMT on 31st December 2020. Checks had been made against Home Office records for evidence that he was an EEA citizen before that date, but no such evidence had been found. Multiple attempts had been made by e-mail and telephone between 25th of September 2023 and the 9th of November 2023 to request evidence that showed he was an EEA citizen before the relevant date, but he had not provided sufficient evidence. He had not demonstrated the eligibility requirements for either settled status or pre settled status under rule EU 11 and EU 14 Of appendix EU to the immigration rules.
3. In summary the judge at paragraph 22 stated as follows:
‘Given the issue for this appeal is whether the appellant has acquired his nationality from birth, I find that the evidence obtained by the appellant to make the application to the Italian authorities would be readily available and yet was not provided for this appeal, for me to consider alongside the letter from the lawyer based in Italy’.

The grounds for permission to appeal
4. The grounds submitted that the first appellant had entered the UK on 24th December 2020 (although according to his application form of 26th June 2023 it was on 29th December 2020) and had been living continuously in the UK since that date. He obtained his Italian identity card in January 2023, but it was his position that he was a national of Italy prior to the specified date and thus an EU citizen at that time and from birth. This was because he acquired his Italian citizenship through the ‘ius sanguinis’ principle in Italian law which enabled descendants of Italian nationals to gain Italian citizenship through ancestry. It was submitted that Italian citizens were considered Italian from birth.
5. Ground (i) submitted that the judge had misunderstood the live issues and made adverse findings on an undisputed issue. She dismissed the appeal on the basis that the first appellant had not shown the basis on which he obtained his Italian ID card [21]. It was not disputed by the respondent at any stage either in the review or at the appeal hearing that the first appellant had indeed obtained Italian nationality through the ius sanguinis principle. In the appellant’s skeleton argument dated 12th of February 2024, this clearly stated that he obtained his nationality since birth through the ius sanguinis principle as follows;
‘The first appellant maintains that he has been an EEA national since his birth as per Italian law (ius sanguinis principle) and that he has been living continuously in the UK since December 2020’.
6. There was no suggestion in the reasons for refusal letter or at the hearing that there was any other basis for the first appellant obtaining his Italian nationality other than through the ius sanguinis principle.
7. The live issue was a matter of law namely at which point the first appellant became Italian so either by birth or when he was issued his ID card. The judge therefore erred in dismissing the appellant’s appeal on an undisputed issue. The contents of the Italian lawyer’s letter stated that the ius sanguinis principle meant that an individual that was verified as an Italian national as an adult had been Italian since birth. Had the judge accepted the basis on which the first appellant obtained his Italian nationality his appeal ought to have been allowed.
8. Ground (ii) asserted a procedural unfairness in that if the basis for the appellant’s Italian citizenship was a disputed issue this ought to have been made clear by the respondent and indeed by the tribunal and the fact that the judge proceeded to make adverse findings in the absence of a proper opportunity for the appellant to respond and supply what she deemed to be relevant evidence was procedurally unfair as per Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ [29] to [30].
9. The basis for the first appellant obtaining an Italian ID card was not an issue that could have been reasonably anticipated given that the live issue was when he became a relevant EEA citizen not how.
10. The first appellant could have produced evidence to demonstrate the basis on which he obtained Italian ID card had he been notified that this was disputed. The further documents provided with the rule 15 (2A) application prove that the first appellant was granted Italian citizenship via his ancestry.
11. Ground (iii) advanced that the judge had erroneously rejected the documentary evidence for inadequate reasons. The Civil Register Office letter from the city of Oria was rejected on the basis that it required notarisation. There was no reason why such a document would require notarisation in order to be considered reliable. Further there was no challenge to the appellant’s credibility. The judge had therefore rejected the letter on an inadequate basis. Further or alternatively the judge did so in the absence of adequate reasoning. Tanveer Ahmed (documents unreliable and forged) [2002] UKIAT 00439 confirms that “a document should not be viewed in isolation. The decision maker should look at the evidence “as a whole or in the round”. In the absence of any challenge to the appellant’s credibility or substantive reasons as to why the letter was unreliable, it was submitted that the judge erred in law.
12. Permission to appeal was refused in the first instance but granted by Upper Tribunal Judge Jackson in the following terms:
‘The third ground of appeal is arguable. A fair reading of the decision is not that the letter from the Civil Register Office was rejected solely on the basis that it was not notarised, it was also that there was no explanation of how it was obtained and that taken in the round, there was insufficient evidence that the Appellant had been issued an Italian residence card on the basis of ancestry. Whilst questions are raised about the lack of other evidence and some ambiguity in the other letter relied upon from an Italian lawyer; there is arguably a lack of reasons as to why the evidence from the Civil Register Office was considered insufficient to establish the basis of nationality.
The first two grounds do not have the same arguable merit, but I do not exclude them from the grant of permission to allow matters to be considered in the round. The issues of how and when nationality was obtained are necessarily two sides of the same coin and the Appellant was unarguably on notice that it was not accepted that he had obtained nationality prior to the specified date – to establish that necessarily involved establishing the basis of recognition of nationality.’

Conclusions
13. The grounds, in my view, are interlinked. It was accepted by Ms Anzani at the outset of the hearing that the critical date for the appellant to show that he was a relevant EEA citizen, that is an Italian national was 31st December 2020. That inevitably involves an assessment as to how the appellant obtained his citizenship because the documents he produced post-dated the relevant date. The judge appreciated this.
14. In relation to ground (i) the judge did not misunderstand the issue. It was indubitably set out in the respondent’s letter (see above) that it was not accepted that the appellant was a relevant EEA citizen at the relevant time on the basis of insufficient evidence. The appellant’s own case is that he derived citizenship through the ius sanguinis principle, and thus he could satisfy the rule at the relevant time but on this basis, as the judge stated, he would have to show how he acquired citizenship if he was to show that at the relevant date that he was an Italian citizen. It is self-evident that the documentation provided post-dated the specified date and could not satisfy the rule on this basis alone. The respondent might accept that he had nationality from a certain date but the route to that nationality is the critical question. The appellant himself introduced the issue of that route. Ms Anzani submitted that UJ Jackson’s observation that these were two sides of the same coin was incorrect, in my view is not sustainable. The appellant would have to show that he had acquired citizenship in the way he asserts because that is fundamental to his case and the only way he could succeed and simply the judge found he did not adequately demonstrate the same.
15. Indeed, the respondent had put him on notice that further evidence was required. The judge did not misunderstand the point in issue. As confirmed in the grounds of appeal the appellant’s skeleton argument identifies that the appellant maintains that he has been Italian since birth. This was a point that the appellant himself raised. This was unarguably the issue and which the judge identified. This also begs the question of why the appellant ultimately produced the documentation he did (ie letter from Oria) if it was not accepted that this was the not a live issue.
16. The Italian ID card does note the appellant is an Italian citizen but this is dated 3rd January 2023 and it does not show how the appellant obtained citizenship. It shows the appellant had citizenship at that date, but the Civil Register letter dated 29th December 2022 states
‘Subject: Recognition of the jure sanguinis Italian citizenship of MACIEL MACEDO Juscelino, born in Sitio Novo (BRAZIL) on 30/04/1990, residing in Oria at vico Adige, 4.
We hereby inform that the above named person, residing in Oria from 18/10/2022, originally from Brazil, has been granted the “jure sanguinis” Italian Citizenship by this Municipality.
Oria, 29/12/2022.’
17. As an aside, this appears at the same time to be a ‘recognition’ and a ‘grant’ of citizenship and would appear to recognise citizenship rather than confer it retrospectively. I also refer to paragraph 4 above.
18. Nonetheless, the judge did not, on the paucity of evidence, even accept this letter as indicated below. She was entitled to do so.
19. Ground (ii) links with ground (i) but suggests a procedural error on the part of the judge. As Abdi confirms at [29]-[30],
‘An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive’
and further
‘There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment...’.
20. It was the appellant himself who raised the issue of the ius sanguinis because that is the only way he could succeed in his appeal. The appellant was aware of the extent of the evidence he had submitted (and indeed subsequently attempted to provide further evidence by way of a Rule 15(2A) application). At the hearing before me Ms Anzani opened with the submission that the appellant had secured his Italian citizenship through his great grandfather. When invited to show where in the documentation before the FtT this had been asserted and demonstrated, she could not do so. I do appreciate however that Ms Anzani was not the advocate in the FtT. The appellant was indubitably aware that the issue was ‘live’ in relation to sufficiency of documentation, it is his appeal and the burden of proof rests with the appellant. Additionally, he was legally represented.
21. In terms of ground (iii) the judge did not reject the letter from the Civil Register Office of the City of Oria in Brindisi merely because it was not notarised. That is even recognised in the grant of permission. The judge did in fact follow exactly what was required in Tanveer Ahmed and as cited in the grounds and looked at the evidence in the round, specifically considered the lawyer’s letter sent, and considered the overall circumstances. It is being presumed that the Italian ID stems from the Civil Register Office but that is not a given. The judge stated at [21]
‘I note that there is no evidence as to how the Appellant obtained the letter/document from the Civil Register Office and it has not been notarised. Given the issues for me to determine, and noting the burden of proof is on the Appellant and the standard of proof is a balance of probabilities I find the Appellant has not shown that the card issued to him was on the basis of ancestry when looking at the evidence in the round and noting the document from the City of Oria Civil Register Office.’
22. The judge clearly considered the evidence from the Civil Register Office and there was nothing irrational in the judge’s approach and indeed that was not asserted. It was not the credibility of the appellant that the judge took issue with but the sufficiency and adequacy of the documentation overall. The letter from the City of Oria does not necessarily confer citizenship but is evidence and in essence it was the absence of documentation which was the difficulty for the appellant.
23. The judge considered the evidence from the lawyer asserting the issues in relation to the ius sanguinis principle and as the judge recognised at [19] there was a possibility of obtaining citizenship through ius sanguinis but not definitively. The letter was a general description of possible acquisition of citizenship and not specific to the appellant. The judge cited from the letter at [19] as follows:
‘In the light of the above, since the transmission of Italian citizenship is a right of blood, descendants of Italian citizens, even if they hold another citizenship, because they were born out of Italy, have the possibility to apply for the recognition of their Italian citizenship’.
and added that her view was that
‘20. What is missing is the application form and evidence to show the transmission of nationality by one or both parents to prove that the Appellant has nationality from birth. What the Appellant has not shown to me is the basis upon which he acquired the Italian nationality and given the absence of the application forms and evidence he would have had to have provided to obtain the residence card, and his lack of knowledge about his own parents and grandparents.
21. I note that there is no evidence as to how the Appellant obtained the letter/document from the Civil Register Office and it has not been notarised. Given the issues for me to determine, and noting the burden of proof is on the Appellant and the standard of proof is a balance of probabilities I find the Appellant has not shown that the card issued to him was on the basis of ancestry when looking at the evidence in the round and noting the document from the City of Oria Civil Register Office.’
24. The grant of citizenship and its basis is an important matter and in the circumstances the judge having assessed the evidence in the round considered the basis of the citizenship had not been established. The weight given to the evidence, including the letter from the Civil Register, is a matter for the judge. She did not reject the letter merely that it had not been notarised. Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197 (IAC) held ‘As the Court of Appeal said at para 18 of Herrera v SSHD [2018] EWCA Civ 412, it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence.’
25. The judge gave adequate reasoning for her findings. The central issue was the route to acquiring status and this needed to be shown; it was open to the judge to find that insufficient evidence was provided. In essence, in the view of the judge, and she was entitled to take the view she did of the City of Oria letter, the appellant had insufficient documentation to show that he was a relevant EEA citizen at the relevant date and if he had not demonstrated his right to Italian nationality through ancestry then it was further not accepted that he had EEA citizenship at the relevant time.

Notice of Decision
The decision of the First-tier Tribunal contains no error of law and will stand. The appellant’s appeal remains dismissed.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th February 2025