Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004458
UI-2024-004459

First-tier Tribunal No: EA/03706 /2023
EA/03513/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE REEDS

Between

ELOGHOSA DAVID REASON OGBEBOR
FAVOUR DAVID REASON OGBEBOR
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The sponsor in person
For the Respondent: Mr Thompson, Senior Presenting Officer

Heard at Bradford on 24 March 2025

DECISION AND DIRECTIONS
1. Pursuant to section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, this is the remaking of the decision of Judge of the First-tier Tribunal Mill promulgated on the 15 August 2024, following the decision dated 5 December 2024 of the Upper Tribunal setting aside the decision of the FtT.
2. The First-tier Tribunal did not make an anonymity order, and no grounds have been advanced on behalf of the appellants to make such an order.
The background:
3. The background to the appeal can be summarised as follows.
4. The appellants are nationals of Spain and are siblings. On 14 June 2023 they made applications under the EU Settlement Scheme for pre-settled status. Those applications were refused in decisions taken on 17 November 2023 (first appellant) and 12 October 2023 (second appellant). They appealed against the respondent’s decisions to refuse the applications under the EU Settlement Scheme (EUSS) under the right of appeal granted by the Immigration (Citizens’ Rights Appeal) (EU Exit) Regulations 2020 on the ground that the decisions breached a relevant right under the Withdrawal Agreement between the European Union and the United Kingdom.
5. The first appellant’s application was refused on the basis that he had stated that he was a child of a relevant EEA citizen’s spouse or partner but not provided sufficient evidence of this. He had not provided the required documents and therefore had not shown he met the requirements for settled status of a family member of a relevant EEA citizen
6. Consideration was given to settled status as a child under the age of 21 years of a relevant EEA citizen who has been or is being granted settlement under the EU settlement scheme. However, the respondent stated that the information provided did not show that he was a child of an EEA citizen or their spouse. He could not meet the requirements of settled status in line with the relevant EEA citizen or of their spouse.
7. Consideration was also given as to whether he qualified for settled status on the basis of completing a continuous qualifying period of five years’ residence in the UK and Islands. However, the respondent concluded that the evidence provided did not show that he had resided in the UK for 5 years and therefore did not meet the requirements of settled status on the basis of a continuous qualifying period of 5 years.
8. Further, consideration has been given as to whether he meet the eligibility requirements for pre-settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU14 of Appendix EU to the Immigration Rules. Consideration has been given as to whether he qualified for pre-settled status on the basis of completing a continuous qualifying period of less than five years’ residence in the UK and Islands. However, the respondent concluded that he did not meet the requirements for pre-settled status on the basis of a continuous qualifying period for the same reasons as to why he did not meet the requirements for settled status. The decision set out that the decision maker had attempted to contact him for by email and telephone between 22 September 2023 and 5 November 2023 to ask for evidence. The evidence that was submitted was not sufficient as it did not cover the period June 2020 – December 2020 as required. The tenancy agreement is not in the appellant’s name and cannot be used as evidence of residence and declaration of circumstances could not be accepted as the respondent could not validate the details in them. In summary, the respondent considered that the information available did not show that he met the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules. Therefore, the application was refused under EU6.
9. The decision also set out that “We have considered whether you meet any of the other eligibility requirements under appendix EU. However, from the information evidence provided you do not meet any of the other eligibility requirements”.
10. The second appellant’s application was refused on 12 October 2023. The decision stated as follows:
“Careful consideration has been given as to whether you meet the eligibility requirements for settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU11 of Appendix EU to the Immigration Rules.
Consideration has been given as to whether you qualify for settled status on the basis of completing a continuous qualifying period of five years’ residence in the UK and Islands. A five year continuous qualifying period means that for five years in a row, you were any combination of the following: a relevant EEA citizen; a family member of a relevant EEA citizen; a family member who retained the right of residence by virtue of a relationship with a relevant EEA citizen; a person with a derivative right to reside; 1 of 5 a person with a Zambrano right to reside; a family member of a qualifying British citizen; a family member who retained the right of residence by virtue of a relationship with a qualifying British citizen,
However, whilst there is evidence that you have resided in the UK periodically between June 2021 and April 2023 this is a period of less than five years.
You have not provided any evidence to confirm that you were resident in the in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020).
Therefore, you do not meet the requirements for settled status on the basis of a continuous qualifying period of five years.
Careful consideration has been given as to whether you meet the eligibility requirements for pre-settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU14 of Appendix EU to the Immigration Rules. Consideration has been given as to whether you qualify for pre-settled status on the basis of completing a continuous qualifying period of less than five years’ residence in the UK and Islands. However, you do not meet the requirements for pre-settled status on the basis of a continuous qualifying period for the same reasons you do not meet the requirements for settled status on this basis because whilst there is evidence that you have resided in the UK between June 2021 and April 2023, you have not provided sufficient evidence to confirm that you are currently completing a continuous qualifying period of residence in the UK and Islands. We attempted to contact you numerous times by email, telephone and text between 22 September 2023 and 6 October 2023 to ask for the evidence specified above, but what you have provided is not sufficient because it does not to confirm that you were resident in the in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules. This is for the reasons explained above.
11. The appellants appealed the decisions and elected for a paper hearing which was listed before Judge Mill. In his decision promulgated on 15 August 2024, he dismissed their appeals. He determined that the relevant issue was whether or not the appellants can meet the relevant provisions of Appendix EU to the Immigration Rules and, on the basis of the evidence before him he found they could not.
12. The appellants sought permission to appeal and permission to appeal was granted by Upper Tribunal Judge Hirst on 2 October 2024 on limited grounds (and not on Article 8 grounds) which led to the hearing before the Upper Tribunal.
13. At the hearing the sponsor appeared although neither of the appellants had attended. The sponsor referred to the skeleton argument which had been sent for the purposes of the appeal. Mr Diwnycz, Senior Presenting officer appeared on behalf of the respondent. There was no Rule 24 response filed.
14. Having had the opportunity to consider some of the background relevant to the grant of permission, Mr Diwnycz accepted that the grounds were made out for the reasons set out in the grant of permission. He therefore submitted that the decision should be set aside and could be remitted for a hearing. That decision is annexed to this and marked “Annex A.”
15. We set out below the decision reached.
“Decision on error of law:
16. Whilst the grounds submitted sought to rely upon human rights issues (Article 8) permission was not granted on this basis for the reasons set out in the decision of UTJ Hirst.
17. I am satisfied that there is a material error of law in the decision of the FtTJ. This was a decision that was made on the papers and by reference to the decision letters the FtTJ identified that the appellants applications were made as joining family members of the relevant sponsor (see paragraph 15) and could not succeed because their sponsor was not a “relevant person” having obtained Spanish citizenship in December 2021 which was after the “specified date”. However in the respondent’s bundle (for the 1st appellant) the application form was provided. As replicated in the skeleton argument it appears to show that the appellants were not applying on the basis of their relationship to their father. It is not entirely clear as underneath the extract of box 3.1 it states “application applying in own right or with sponsor and the number 0 is set out. Mr Diwnycz was not able to tell from the information he had available what that meant but on the face of it appears to show that the basis of the application was not as the decision letter had set out. It is also of note that in the decision letter reference is made to considering other routes of eligibility, although that does not appear to have been carried out. As that document was in the respondent’s bundle, the basis of the application was a material issue and does not appear to have been taken into account when assessing these appeals.
18. Furthermore whilst the decision in respect of their sibling was not made available, either by the respondent or by the appellants, reference had been made to it in the statement filed by the sponsor dated 27 May 2024 and the FtTJ refers to it in his decision at paragraph 14, stating “for reasons unknown”. Whilst it may not have been determinative, the fact that one sibling in the same circumstances had been allowed should have alerted the FtTJ to that issue and that this necessitated making further enquiry of the respondent. I agree that the judge may have been some difficulty given he was determining the appeals on the papers, but those matters were relevant to the assessment of the appeals, particularly in view the difference in the decisions and the correct basis of the applications made. I note that in this context any decision whether to decide the appeals without a hearing is a judicial one to be made by the judge who decides the appeal without a hearing. The fact that a case has been placed in a paper list does not mean that a judge cannot consider whether a hearing should be listed as an oral hearing (see SSGA (disposal without considering merits; R25) Iraq [2023] UKUT 0012 (IAC).
19. For those reasons, the grounds are made out and therefore the decision of the FtTJ is set aside. Whilst there remain some issues to be determined and the respondent is to use her best endeavours to obtain information concerning the decision made in respect of their sibling, it is not necessary to remit the appeal as this appeal can be re-made by the Upper Tribunal on a date to be fixed in accordance with the directions served with this decision”.
The evidence:
15. Following the error of law decision, directions were sent to the parties for the provision of any further evidence they sought to rely upon. An email was sent by the sponsor on behalf of the appellants on 7 December 2024 (setting out the children’s statements of circumstances, the parental leave to remain grant letter, the decision letter of the 3 children, EU residence card). It did not appear that that had been served upon the respondent in light of later communication sent to the tribunal by the respondent. Further correspondence confirmed that in January 2025, the sponsor had been sent a notification letter of the grant in error in relation to V (3rd sibling) and that was that “no inference could be drawn from the previous grant as it had been accepted as an error albeit the leave not been revoked.”
16. Following this, documents were sent by the sponsor on behalf the appellants which are uploaded to the electronic file on 13 March 2025 which were the documents provided 7 December 2024. A bundle was received from the respondent dated 18 March 2025, which contained the new decision in respect of V (p23) and the immigration officer’s minute of the interview with the sponsor, the respondent bundle containing information provided by the sponsor on behalf of the appellants and the skeleton argument dated 17 March 2025. For the purposes of the hearing, a consolidated bundle was prepared by the Tribunal staff, and a copy was provided to the parties. We have admitted all the documents that have been provided for the hearing since the decision of the FtTJ as we are satisfied that they are material to the issues we have to decide and that each party has had the opportunity to provide documentation for the appeals.
17. The appellants were also in attendance alongside the sponsor, and we were mindful of their ages and explained how the hearing would proceed in what way and the sponsor was informed that he would be able to make any closing summary he wished to make at the end of the proceedings. Neither the appellants or the sponsor stated they required an interpreter when asked and we are satisfied that they understood the questions that were asked and that there were no difficulties expressed by them during the hearing.
18. We heard evidence from each of the appellants and from the sponsor as set out in our record of proceedings. We shall refer to that evidence in the analysis section below. We also heard a summary from the presenting officer, Mr Thompson and from the sponsor at the conclusion of the evidence. We summarise those submissions as follows.
19. Mr Thompson relied upon the skeleton argument set out in the bundle dated 17th of March 2025. He set out that it was the respondent’s case was that the appellants could not satisfy the regulations under EUSS. He submitted that whilst the sponsor had asserted that he was in the UK before the end of December 2020, the evidence in the immigration officers minute brought into question this assertion and therefore whether the appellants were in the UK before the specified date. He submitted there was a clear reference in the visa application made that he had not been in the UK before April 2021 alongside the other evidence in the immigration officers minute.
20. As to the evidence of the tenancy, while the sponsor clarified that he was not in the UK during the time that it was drafted, the document could not be used to demonstrate residence in the UK for sponsor or the appellants before the end of 2020. Mr Thompson acknowledged the evidence given by the sponsor and the appellants and that they had said they were in the UK before the end of December 2020, but the respondent submitted that the immigration officer’s minutes undermined their assertion to have been in the UK when stated.
21. Mr Thompson submitted that they had stated that they had lived with their uncle but there was no evidence from their uncle to confirm this. As evidence to from their school this was after the specified date and period (p71).
22. He submitted that their presence was not facilitated by any documents, although he accepted that they had Spanish passports.
23. Mr Thompson submitted that also to qualify the appellant must have been in the UK for the purposes of education but there was no evidence that there had been any enquiries made.
24. Mr Thompson also acknowledged that the decision in respect of the youngest child originally had been granted but as set out in the recent decision letter, this was a grant made in error and the decision clarifies why that was the position.
25. The sponsor had provided a previous skeleton argument dated 4th of December 2024 which we have read and had regard to. He also provided a document entitled “Key points to emphasise and oral submissions”. This set out that the Tribunal had already acknowledged the FtTJ’s error regarding the independent rights of the appellants and that they relied on their own EU rights.
26. He relied upon the tenancy agreement and landlords letter as “strong pieces of evidence” that should be considered. The sponsor set out that the Home Office’s refusal to accept the documents (tenancy agreement and landlord letter, is inconsistent with the general practices and guidance and just because the tenancy agreement was in the sponsor’s name did not mean that they were irrelevant.
27. He submitted that the appellant had not left the UK for over a month at any time since 14 December 2020 and that there was clear evidence of continuous residence and that the appellants had provided sufficient to demonstrate their residence in the UK and meet the requirements of the EUSS.
28. Reference is made to the respondent attempting to use the parents immigration history against the appellants which he submits is incorrect. He stated that the appellant as EU citizens continuously resident in the UK since 14 December 2020 qualified for settled status. As their parent primary carer he derived rights to remain in the UK.
29. By reference to the temporary absence in Spain in 2022, he submitted that this was fully disclosed and did not affect those rights.
30. In a further document that was sent on 20 March 2025, entitled “appellant’s response to the Home Office findings” this confirmed the appellants position they had been continually resident in the UK since 14 December 2020. By reference to the incident in 2022 when he travelled to Spain this was for the sole purpose of collecting his belongings and the temporary absence was of short duration and did not constitute a break in his continuous residence. He disclosed this absence in his application for leave to remain through the family route.
31. In the section entitled “legal submissions”, he submitted that the appellants maintained the centre of their life in the UK during their period of residence as shown by their ongoing school attendance and social integration, that they had entered the UK on 14 December 2020 and had not left the UK since that date and his absence in Spain in 2022 did not constitute a break in residence.
32. In his oral summary, the sponsor stated that he had entered the UK with a residence card and had used the opportunity to bring the children to the UK. He returned to Spain and came back to the UK. He said he applied for a visit visa which was granted. He stated that he did not say to the immigration officer that he had not been in the UK before and that he had been in the UK before and therefore it must be a mistake. He said that he had explained the situation to the immigration officer.
33. When asked to provide his summary as to what the children were doing during the period that was in dispute, the sponsor stated that he could not get them into school as it was the Christmas period and the holidays, and the system was slow, and they could not get to school on time. Therefore, they were told to do English and Maths, and they were accepted in school in June 2021. He said that he had supported them through his savings.
34. The sponsor stated that he had some key points that he wished to rely upon them with those which are set out in the key point document that we have already summarised.
35. At the conclusion of the hearing we reserved our decision.
Analysis and discussion:
36. In reaching our decision we have had regard to all the evidence before us, whether or not it is referred to. We are grateful to the sponsor and Mr Thompson for the assistance they have given us during the hearing.
37. It is for the appellants to satisfy us on the balance of probabilities of any facts on which they seek to rely.
38. These appeals are brought under the EU Settlement Scheme (“EUSS”) by the appellants who are both Spanish nationals.
39. The procedural history of these appeals have been neither clear nor straightforward and the present appeal is the 3rd set of applications that have been made.
40. By way of explanation and when looking at the procedural history it is clear from the evidence now provided that there have been 2 previous applications made on behalf of the appellants’, which also included their 3rd sibling who is not a party to the present appeal. A separate decision has now been made by the respondent in December 2024.
41. At the error of law hearing the sponsor stated that there had been a previous application made in 2022 which had been refused on the basis that he was not an EU citizen (see paragraph 17 of the EOL decision). There was a further explanation that the person who was in charge of their care as Guardian was the sponsor in the application (see page 135CB). Whilst reference was made to applications submitted in 2022, the respondent’s chronology for these proceedings refer to applications being made on 17 June 2021 for the appellants and their sibling which were refused. There are no decision letters provided by either party.
42. The chronology also indicates that applications were made under the EUSS on 24 April 2022 and there are copies of the decision letters in respect of the two appellants in the respondent’s bundle. In relation to the 1st appellant, E, the refusal is dated 4 December 2022 (p 207 CB). The reasons for refusing application was that it had been an application to join a family member as a “relevant sponsor” but from the evidence provided the “relevant sponsor” not been granted indefinite or limited leave to remain under EU 2 or EU 3 of Appendix EU therefore did not meet the requirements of the Rules. It was further stated that insufficient evidence been provided to confirm that the appellant was the child of a relevant sponsor. There is a similar decision letter in the respondent’s bundle in respect of the 2nd appellant dated 1 December 2022 which refused the application for the same reasons.
43. This led to the 3rd set of applications made under EUSS on 14 June 2023 which resulted in the refusal of the applications in decision letters made on 12 October 2023 and 13 November 2023. As set out previously, the appellant’s sibling’s application was allowed on 11 October 2023. The respondent has since acknowledged that the application was allowed in error and a further decision has been made refusing the application.
44. The appellants through their sponsor and father requested for the appeals to be heard “on the papers” and the appeals came before FtTJ Mill. He dismissed their appeals because he found that the applications were made as joining a family member of a relevant sponsor and the sponsor, that is their father, could not meet the definition of the relevant sponsor given his lack of status. The judge also found that the appellants has no formal residence permits issued under the Regulations.
45. As set out in the error of law decision (paragraph 25) the sponsor provided an extract of the original application made in 2023 which appeared to show that the applicants applied in their own right. However as indicated by the presenting officer at the hearing he could not tell what the extract meant on the basis of the information provided. When set against the sponsor’s grounds and the lack of clarity as to the basis upon which the application was made, there was some evidence to suggest that there had been some error in the decision-making process. Furthermore, on the face of it the respondent appears to have made an inconsistent decision by allowing the 3rd sibling but refusing the other two appellants. The reasoning was not provided for any apparent differences and as this was a decision on the papers this was an issue which should have alerted the FtTJ that an oral hearing was required to determine the factual background. The decision was therefore set aside to be heard to be heard de novo.
46. In light of the lack of clarity in the evidence directions were made for the parties to provide further evidence. Both parties have had the opportunity to provide the evidence upon which they rely for the purposes of this appeal.
47. We now turn to the issues. In light of the subsequent material provided by the parties the issue has crystallised as being one of fact and whether the appellants have demonstrated on the balance of probabilities that they were resident in the UK on or before 31 December 2020 (the “specified date”). The case advanced on behalf of the appellants’ is that they arrived with their father in December 2020 that they have resided here since that date. The sponsor provides the date of 14 December 2020.
48. When assessing the issue we have given careful consideration to the evidence presented both oral and documentary and any submissions advanced by each of the parties.
49. We begin by setting out the findings of fact made from the evidence upon which there is little or no dispute.
50. There is no issue of the nationality of both appellants. They are Spanish nationals and have lived in Spain prior to their entry to the UK and have lived with their other sibling and their parents. Their father, the sponsor, stated he moved to Spain in 1999 and has been a Spanish national since 2021. He has held a residence card prior to that date.
51. As we have set out the date of their entry to the UK is an issue and we shall set out the evidence in respect of that issue in due course.
52. We are satisfied that whatever date the appellants entered the UK, either 14 December 2020 or at a later date in 2021 as the respondent submits, that save for a short period of 3 days where the first appellant returned to Spain to renew his passport, both appellants and their sibling have remained resident in the UK. From the evidence that we have read and heard that they are well cared for in the UK and have established their lives in the UK.
53. Insofar as their circumstances since their arrival is concerned, there is little evidence in support of the period in issue between December 2020 – June 2021. The declaration of circumstances provided by each appellant are short statements which provide little detail. The first appellant has stated that his father returned to Spain leaving them in the care of their uncle during the period and they engaged in various activities including practising English and playing football (page 140 CB). Similarly, the second appellant also referred to staying at home and trying to adapt the language and keeping up their fitness levels (page 141 CB). There is no supporting evidence by way of documentary evidence to demonstrate their circumstances during the period in dispute.
54. From the documentary evidence provided we are satisfied that all 3 siblings started in education at the same school albeit on different dates. The 1st and 2nd appellants started school in the UK on 14 June 2021 (see letter p71 CB). As Ms Thompson points out, there is no evidence from the school to set out what enquiries were made by the sponsor or any other person in respect of their future enrolment date or the date where any such enquiries had been made.
55. We are also satisfied from the evidence that from the dates given that the appellants have remained in education (see p221CB).
56. As to the circumstances of the appellant’s mother the evidence before us has been inconsistent and as such we are not satisfied that we have been provided with the complete evidence of the family circumstances. The evidence before us from both appellants suggest that whatever date they entered the UK, their mother did not enter with them. The 2nd appellant in his statement (page 141CB) referred to having video calls with his mother whilst he was in the UK. We are therefore satisfied that she did not enter the UK with them.
57. Further, the 1st appellant confirmed that she was in Spain at the time. When he was asked when she first came to the United Kingdom he thought it was in 2021 but could not give a date. Similarly, the 2nd appellant’s oral evidence confirmed his mother was in the UK now but could not remember when she came.
58. We make the observation that in the earlier proceedings before Judge Mill, although on the papers, there was no reference to the appellant’s mother as to where she was living either with the family or in Spain. In fact he recorded in his decision (15/8/24) that” the appellant’s mother does not live in the UK”( (see paragraph 10 of the decision).
59. In the absence of any evidence from the appellant’s mother we consider that the more accurate date is likely to be that referred to in the Home Office documents (P284 CB). This confirms that she had applied for a visa in May 2021 which was granted in that month and year. As far as we are aware she has remained in the UK since that date.
60. However, the evidence of the sponsor has not been consistent as to the circumstances of his partner. In his statement (dated 27/5/24;p135 CB) reference is made to being “solely responsible for the children” and “I am the only parent in the UK. My wife was not allowed to enter.” This does not appear to be reflected in the Home Office records nor the appellant’s evidence which refers to her being present in or about 2021. Furthermore, the letter from the local authority (p155CB) refers to the support given during the period of April 2023 – November 2023 which also records that the sponsor is the main care of the children and “their mother is not living in the UK”.
61. We turn to the relevant evidence in assessing the date of entry. As set out the appellants stated they entered in December 2020 and the sponsor has given the date of 14 December 2020. It is right to take account of the applications made on behalf of the appellant’s which also refers to the date of 14 December 2020.
62. In his summary to us the sponsor referred to the appellants having entered with him on that day and having not left. His evidence was that he had made arrangements for housing in the UK and had arrived with the children on that date. He said he had spent a few weeks in the UK and then returned to Spain. The children were left in the care of their uncle and from Spain he made arrangements to come to the UK. He stated that from then they all lived together. It was the Christmas period, and it was partial lockdown and that he had search for school. He stated that in 2022 he returned to Spain to collect his belongings and to bring them back and that is when he had the issue with the immigration officer. He had left in April 2022 and when he returned in May 2022 he had problems. He referred to his wife being in the UK. He has been granted discretionary leave to remain.
63. We have considered the evidence as to when the sponsor entered the UK and when he left the UK and in the circumstances upon his re-entry. The evidence given is not consistent. Whilst the sponsor stated that he spent a few weeks in the UK before returning to Spain the evidence of the appellants is that whilst they remember him leaving the UK they could not recall the exact date but in evidence the 1st appellant confirmed it was before they started school. The date is in the documents provides for a date in June 2021. The evidence given by the sponsor to the immigration officer initially is that he had entered the UK in 2020 and left again in 2020 but later returned in March 2021 (see p 285CB). The respondent’s evidence is that the sponsor applied for a visit visa March/April 2021 and that in that application form stated that he had not entered the United Kingdom or lived there prior to April 2021.
64. While the sponsor submitted that the Home Office has accepted the date of entry in the decision letter (which was subsequently relied upon by FtTJ Mill) since that decision was made, further relevant evidence to this issue has been made available and which we consider as relevant to determining the date of entry. The evidence is in the respondent’s bundle and is a record of an interview undertaken in 2022 (see p.284CB). The sponsor accepts that he was interviewed by the immigration officer but when cross-examined about this he stated that what is recorded is not true and that he had not said it. In his oral summary he stated that he had not said what is recorded and that there must have been a mistake.
65. The interview with immigration officer took place on 20 May 2022 when the sponsor arrived with his Spanish passport. He was interviewed, confirmed that he was fit and well and that he had been living in England since December 2020 which he then clarified that he had left again in December 2020 and later returned in March 2021. It is recorded, “he also claimed his family joined him to live in England in 2021 and has been living there since 2021” (p285CB). He also confirmed that he had applied for a visit visa in March/April 2021 and overstayed his visa. It is also recorded that whilst the passenger initially stated they were living in the UK “only later to claim that when he said they were living in the UK they were just visiting their son “. Following the interview the immigration officer consulted his records which showed that his partner’s application for a visa in May 2021 was granted in that month and year and that his partner and children had applied under the EUSS. As a result of these enquiries, follow-up questions were then asked of the sponsor to clarify when his children and wife entered the UK. What is recorded is “the passenger stated that his children accompanied him to the UK in April 2021 and started attending school immediately”. He stated his wife entered the UK to join them but could not specify exactly when she arrived and that she had been living here since her arrival.
66. It is further recorded that,” the passenger has claimed in the visa application in April 2021 that he had never been in the UK before UK prior to December 2020”.
67. We have considered the evidence of the sponsor who stated that it is not true or there was a mistake in the evidence as recorded in the immigration officers notes/minutes. When assessing the weight we attach to that evidence we take into account that we have not heard oral evidence from the immigration officer. We have therefore considered the way in which the evidence was taken. It records the date and time of the particular parts of the interview, it is recorded that the appellant was provided with an interpreter in the Spanish language; a language he confirmed he understood and that he confirmed he was fit and well to be interviewed. Further it records that he understood the questions and signed the notebook. We made the observation that the immigration officer not only recorded what was said but also made reference to the application for a visit visa made in April 2021 in which it was said that he never been to the UK before which then led to the further questions and the recording of the asserted statement made that the children accompanied him to the UK in April 2021.
68. In undertaking an assessment of that evidence we also take into account that the evidence was filed at a late stage however directions were issued expressly dealing with this evidence at paragraph 3 of the directions and the sponsor was given the opportunity to provide any further evidence on this issue or any other issue relevant to periods of residence. The sponsor did respond with the document sent in dated 20 March 2022 in which he referred to the incident in 2022 as being the sole purpose of collecting his personal belongings however there is no reference made to what was said to immigration officer or what was said in the application form for a visa in April 2021.
69. In light of the clear conflict in the evidence as it stands, we have therefore looked at the other evidence submitted on behalf of the appellants to demonstrate their residence during the period in issue, between December 2020- June 2021.
70. On behalf of the appellants the sponsor has referred to the following pieces of documentary evidence; the evidence of the tenancy agreement and the landlord, evidence from school, evidence from the local authority, evidence from the GP. The sponsor submits that the documents demonstrate that the appellants entered the UK on 14 December 2020 and that they have resided in the UK since that date.
71. By way of response Mr Thompson has submitted that he relies on what he describes as the clear reference in the immigration officer’s minutes by reference to the previous application made for a visa and also what was said to the immigration officer about date of entry of the family. He submitted that the evidence of the tenancy could not be relied on as the sponsor was not in the UK. He referred to there being no evidence from the appellant’s uncle with whom it is said they lived during the period in dispute and the evidence of the school as to residence gives the date of starting education as June 2021. He acknowledged that whilst the appellants and the sponsor have said they arrived in December 2020, it is undermined by the evidence in the immigration officer’s minutes.
72. We have therefore assessed the other evidence provided to see if this provides support to the claim made as to the date of entry and the period before April 2021, which is the date that the sponsor told the immigration officer that the children had come to the UK.
73. The evidence of the GP is at page 158 CB (dated 20/2/24) which confirms that the appellant’s father is the person who takes into their appointments. It does not provide any dates of such appointments or the dates that they were registered with the GP. It therefore provides no assistance in determining dates of residence.
74. The evidence relating to football (p153) also provides no dates as to when the activities started.
75. The letter from the local authority (p155) refers to the period of support provided from April 2023 to November 2023 but again provides no further information to provide any support for the families circumstances prior to 2023. We have earlier set out that in our assessment of its contents it referred to the sponsor as the main carer and their mother as not being in the UK which appears to be inconsistent with the other evidence before us.
76. Turning to the evidence relevant to their education, while both appellants and the sponsor refer to being in the UK at the time of a partial knockdown and that it took them time to obtain a place of education, the letter from the school while setting out the dates that they began in education as being 14 June 2021 for the appellants and 1 September 2021 for their sibling, no further information is provided in that letter or any other further letter as the dates where enquiries were made by their father or any other person as to when they sought enrolment what date or in what circumstances. Whilst we are mindful of the circumstances of the lockdown which began earlier in 2020, we consider that a school when being asked to enrol new children would have a record of when those enquiries were made and on what basis. We have not been provided with any evidence from the sponsor’s enquiries with school, or by him or from their uncle. As Mr Thompson submitted despite the claim that their uncle was the carer for a period of time during the relevant period, there is no evidence from their uncle in support of the date of entry. Thus the school evidence can only provide the date as to when they began their education which is in June 2021 which we find is more consistent with what was said to the immigration officer that they came in April 2021 and then started school.
77. We turn to the evidence that the sponsor has placed significant reliance upon which is the tenancy agreement and the evidence from the landlord. There is a tenancy agreement (an assured short hold tenancy; p 365CB), which is signed by the landlord who is said to be “Mr JA” and the tenant named as the sponsor with the date of 20 November 2020. It is signed by the person named as landlord and the sponsor. It is not signed by any witnesses. Even on the sponsor’s own evidence, he was not present in the UK when this was signed. During cross-examination he said the agreement was signed and that he had made the arrangements with an agent before he came to the UK. He set out that he arranged to rent an apartment from the landlord (Mr NA) through an agent (Mr JA) (see p135CB).
78. There is a later tenancy agreement dated 7 April 2021 where the landlord’s name is now shown as Mr NA with the sponsor as the tenant and setting out the rental sums. This document is signed by both the landlord and the sponsor and also by witnesses. There is a declaration from the landlord (p206CB) which confirms that the family entered the property on 14 December 2020. There is a further declaration dated 3/5/23 (p 192CB) confirming that he is the landlord, and he was the one who received rental payments and “still receives it now”. It also confirmed that he rented the property to the sponsor and the family since December 2020 through the agent JA.
79. When assessing the weight that we attach to that evidence we similarly note that the landlord did not give any oral evidence. Nor has he provided any further evidence in relation to rental payments received nor the dates upon which the information had been provided. We have no documents either from the sponsor as to the payments made.
80. When assessing that evidence on its face it lends support to the sponsor’s account that they were living in the property however the evidence given by the landlord is not consistent. Firstly whilst he confirms he received payment to an agent he states “since December 2020” when the date of the tenancy is 20 November 2020. Secondly at page 192 he refers to having received rent and “still receiving it”. The date of that statement is 31st of May 2023, but this conflicts with the evidence from the local authority (p155) which refers to them supporting the family when homeless between 12 April 2023 and November 2023. Whilst we are satisfied that the sponsor lived in the property in March 2023 given the immigration officers visit as recorded by him, we have not been referred to any further evidence as to residence.
81. Whilst the sponsor has submitted in his written argument that the tenancy agreement and evidence from the landlord are strong pieces of evidence and that the refusal by the respondent to accept the documents is inconsistent with general practice and guidance, we note that in the original decision letter the evidence of the tenancy was not accepted as evidence as it did not have the appellants’ name, and the declaration was not accepted because the respondent could not validate the details, but no further details or evidence was provided. This was also reflected in the subsequent decision made in December 2024 and in the circumstances it must have been clear that the evidence as it stood in isolation was insufficient and at least some further supporting evidence was required.
82. We have stood back and considered the evidence submitted “in the round”. While Judge Mill referred to the appellants’ arrival with sponsor as 14 December 2020, that was taken from the papers submitted by the sponsor and as we have stated Judge Mill did not have the additional evidence that has since been provided. There is a clear conflict in the evidence provided and given the conflicting dates as given we have looked at what other evidence has been provided to lend support to the claimed date of entry of 14 December 2020. Whilst the two appellants have referred to a date of December 2020, they are recounting a time when they were both children and reliant upon the information provided by the sponsor. As set out his evidence has not been consistent given what is recorded by the immigration officer. We have set out in our analysis the limitations of that evidence- the GP evidence, the school evidence and that of the local authority provide limited assistance in determining the date of entry and residence. Similarly we have set out the limitations we find in the evidence of the landlord, and there is no evidence from the person who it is said looked after the children during the period in dispute. We have taken into account the inconsistent evidence given by the sponsor as to the circumstances of his partner.
83. Thus we remind ourselves that the burden of proof is upon the appellants to demonstrate the factual circumstances they rely on but based on the evidence that has been provided, in our judgement it is insufficient to discharge the burden of proof on the balance of probabilities that the appellants and the sponsor were present in the UK on the date claimed on 14 December 2020. That being the case, the appellants do not succeed in showing that they can satisfy the regulations under the EU Settlement Scheme.
84. The appeal was limited to the appeal made under the EUSS as set by the FtTJ when granting permission to appeal, therefore no article 8 issues arise. That does not preclude any further applications made by the appellants or the sponsor.
85. We therefore dismiss the appeals.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside. The appeal is to be remade as follows:
The appellants’ appeals under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 are dismissed.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

7 May 2025

“ANNEX A”

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004458
UI-2024-004459

First-tier Tribunal No: EA/03706 /2023
EA/03513/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE REEDS

Between

ELOGHOSA DAVID REASON OGBEBOR
FAVOUR DAVID REASON OGBEBOR
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The sponsor in person
For the Respondent: Mr Diwnycz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 4 December 2024

DECISION AND DIRECTIONS

1. The appellants appeal with permission against the decision of the First-tier Tribunal (Judge Mill) (hereinafter referred to as the “FtTJ”) who dismissed their appeals against the decisions made to refuse their respective applications made under the EU Settlement Scheme in a decision promulgated on 15 August 2024.
2. The First-tier Tribunal did not make an anonymity order, and no grounds have been advanced on behalf of the appellants to make such an order.

The background:
3. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellants are nationals of Spain and Nigeria and are siblings. On 14 June 2023 they made applications under the EU Settlement Scheme for pre-settled status. Those applications were refused in decisions taken on 17 November 2023 (first appellant) and 12 October 2023 (second appellant). They appealed against the respondent’s decisions to refuse the applications under the EU Settlement Scheme (EUSS) under the right of appeal granted by the Immigration (Citizens’ Rights Appeal) (EU Exit) Regulations 2020 on the ground that the decisions breached a relevant right under the Withdrawal Agreement between the European Union and the United Kingdom.
4. The first appellant’s application was refused on the basis that he had stated that he was a child of a relevant EEA citizen’s spouse or partner but not provided sufficient evidence of this. He had not provided the documents therefore had not met the requirements for settled status of a family member of a relevant EEA citizen
5. Consideration was given to settled status as a child under the age of 21 years of a relevant EEA citizen who has been or is being granted settlement under the EU settlement scheme. However, the respondent stated that the information provided did not show that he was a child of an EEA citizen or their spouse. He could not meet the requirements of settled status in line with the relevant EEA citizen or of their spouse.
6. Consideration was also given as to whether he qualified for settled status on the basis of completing a continuous qualifying period of five years’ residence in the UK and Islands. However, the respondent concluded that the evidence provided did not show that he had resided in the UK for 5 years and therefore did not meet the requirements of settled status on the basis of a continuous qualifying period of 5 years.
7. Further, consideration has been given as to whether he meet the eligibility requirements for pre-settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU14 of Appendix EU to the Immigration Rules. Consideration has been given as to whether he qualified for pre-settled status on the basis of completing a continuous qualifying period of less than five years’ residence in the UK and Islands. However, the respondent concluded that he did not meet the requirements for pre-settled status on the basis of a continuous qualifying period for the same reasons as to why he did not meet the requirements for settled status. The decision set out that the decision maker had attempted to contact him for by email and telephone between 22 September 2023 and 5 November 2023 to ask for evidence. The evidence that was submitted was not sufficient as it did not cover the period June 2020 – December 2020 as required. The tenancy agreement is not in the appellant’s name and cannot be used residence and declaration of circumstances could not be accepted. as we cannot validate the details on them. In summary the respondent considered that the information available did not show that he met the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules. Therefore the application was refused under EU6. The decision also set out that “We have considered whether you meet any of the other eligibility requirements under appendix EU. However, from the information evidence provided you do not meet any of the other eligibility requirements”.
8. The second appellant’s application was refused on 12 October 2023. The decision stated as follows:
“Careful consideration has been given as to whether you meet the eligibility requirements for settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU11 of Appendix EU to the Immigration Rules.
Consideration has been given as to whether you qualify for settled status on the basis of completing a continuous qualifying period of five years’ residence in the UK and Islands. A five year continuous qualifying period means that for five years in a row, you were any combination of the following: a relevant EEA citizen; a family member of a relevant EEA citizen; a family member who retained the right of residence by virtue of a relationship with a relevant EEA citizen; a person with a derivative right to reside; 1 of 5 a person with a Zambrano right to reside; a family member of a qualifying British citizen; a family member who retained the right of residence by virtue of a relationship with a qualifying British citizen,
However, whilst there is evidence that you have resided in the UK periodically between June 2021 and April 2023 this is a period of less than five years.
You have not provided any evidence to confirm that you were resident in the in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020).
Therefore, you do not meet the requirements for settled status on the basis of a continuous qualifying period of five years.

Careful consideration has been given as to whether you meet the eligibility requirements for pre-settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU14 of Appendix EU to the Immigration Rules. Consideration has been given as to whether you qualify for pre-settled status on the basis of completing a continuous qualifying period of less than five years’ residence in the UK and Islands. However, you do not meet the requirements for pre-settled status on the basis of a continuous qualifying period for the same reasons you do not meet the requirements for settled status on this basis because whilst there is evidence that you have resided in the UK between June 2021 and April 2023, you have not provided sufficient evidence to confirm that you are currently completing a continuous qualifying period of residence in the UK and Islands. We attempted to contact you numerous times by email, telephone and text between 22 September 2023 and 6 October 2023 to ask for the evidence specified above, but what you have provided is not sufficient because it does not to confirm that you were resident in the in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules. This is for the reasons explained above.
9. The appellants appealed the decisions and elected for a paper hearing which was listed before Judge Mill. There are no case management decisions available from the FtT and it is not known what directions were made for the provision of documentation/bundles or what disclosure was sought/received. What is known is that the FtTJ had the respondent’s bundle for each of the appellants and the documentation he identified at paragraph 6.
10. The FtTJ set out his reasons for dismissing the appeals between paragraphs 7-17 of his decision. He accepted that the appellants formed two of a sibling group of three who are the children of their ‘Sponsor’, their father who was born a Nigerian citizen but did not attain Spanish nationality until December 2021, a year after the ‘specified date’.
11. He found that the appellants entered the UK with their father on or about 14 December 2020 and that the first appellant was born Nigerian and attained Spanish citizenship on 19 July 2012 and the second appellant was born Nigerian and attained Spanish citizenship on 10 July 2012. The appellants’ mother does not live in the UK. The appellants’ father, Mr Iyanu, is their primary carer and both Appellants live with him.
12. By reference to the decision letter and the assertion made that the appellants have not lived exclusively in the UK since their entry in December 2020, the FtTJ found no documentary evidence had been provided to show that they have lived continuously in the UK since their entry in December 2020. However he did find that there was “credible and reliable documentary evidence from third party sources” which supported the fact that the appellants resided with their father in the UK (there is a medical report from a Medical Centre, their schools and from a children and family support worker working for the local authority) and that all of these sources vouched for the fact that the appellants and their other sibling, V, resided with their father.
13. The FtTJ found that the appellants’ father had not evidenced making any application under the EU Settlement Scheme and had not evidenced having pre-settled or settled status.
14. By reference to their third sibling, the FtTJ stated, “For reasons unknown, the respondent approved the application made under the EUSS for the appellants sibling, V who was born as a Nigerian, attaining Spanish citizenship on 12 November 2013. This fact is not determinative of these appeals”. The FtTJ concluded that their applications were made as a joining family member of a relevant Sponsor and were made after 1 July 2021 and that as the definition of ‘relevant sponsor’ requires the relevant Sponsor to be an EEA citizen who has been resident in the UK for a continuous qualifying period which began before the specified date. The FtTJ found that this could not apply as he did not attain Spanish nationality until December 2021, a year after the ‘specified date’ and that the appellants’ father was not a relevant Sponsor. The FtTJ accepted that the appellants lived with their father, and he is providing them with a good level of care but that was not the issue in dispute in these appeals. He determined that the relevant issue was whether or not the appellants can meet the relevant provisions of Appendix EU to the Immigration Rules and, on the basis of the evidence before him he found they could not.
15. The appellants sought permission to appeal and permission to appeal was granted by Upper Tribunal Judge Hirst on 2 October 2024 on limited grounds as follows:
“The Appellants are siblings born on 23 April 2006 and 23 January 2008. They are dual nationals of Nigeria and Spain, having acquired Spanish citizenship on 19 July 2012 and 10 July 2012 respectively. The Appellants entered the UK with their father, Mr David Reason Iyanu, on or around 14 December 2020. Mr Iyanu was at that time a Nigerian citizen, and attained Spanish citizenship in December 2021.
On 14 June 2023 the Appellants, together with their elder sibling Victory, made applications for leave to remain under the EUSS as the joining family members of a relevant sponsor. The Appellants’ applications were refused on 15 August 2024; Victory’s application was however granted by the Respondent. The appeals were determined on the papers.
The Appellants’ grounds of appeal assert that the First Tier Tribunal erred in law by failing to acknowledge that the Appellants were EU citizens at the time they arrived in the UK, and/or by failing to have regard to the best interests of the Appellants as relevant children and the impact of the refusal of leave to remain on the Appellants’ family and private life in the UK and on their education.
The appeal before the First Tier Tribunal arose under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The judge correctly directed himself to the relevant provisions of Appendix EU, but noted that Mr Iyanu had not evidenced having pre-settled or settled status under the EUSS as required for a ‘relevant sponsor’. Although the judge noted that V’s apparently identical application had been granted by the Respondent for “reasons unknown”, he does not appear to have given consideration to the implications of that grant for the Appellants’ applications or the appeals before him.
I recognise that the judge was in some difficulty given that he was determining the appeals on the papers, and I bear in mind that the First Tier Tribunal is not an inquisitorial jurisdiction. However, on balance I consider that it is just arguable, in the context of the successful application made by the Appellants’ sibling, that the judge erred by not giving further consideration to that grant and/or not making further enquiry of the Respondent and that it was arguably unfair not to do so.
There is no evidence that the Appellants raised Article 8 in response to a notice under s120 Nationality, Immigration and Asylum Act 2002. Absent such a notice the First Tier Tribunal did not have jurisdiction to consider human rights grounds, and it is therefore not arguable that the judge erred in law by failing to consider the Appellants’ human rights.
Permission to appeal is granted on limited grounds”.
16. At the hearing the sponsor appeared although neither of the appellants had attended. The sponsor referred to the skeleton argument which had been sent for the purposes of the appeal. Mr Diwnycz, Senior Presenting officer appeared on behalf of the respondent. There was no Rule 24 response filed.
17. During the hearing, the sponsor was asked some questions about the factual background to the appeals which were unclear from the material. There had been a reference made to a previous application in his witness statement that was before the FtT. He stated that there had been a previous application made in 2022 in relation to all 3 siblings where he was the sponsor but had been refused on the basis that he was not an EU national. There was no copy application available. The 3 siblings then made a further application in 2023 which generated 3 decisions, on 11 October 2023 the application made in respect of V was allowed and limited leave was granted to him under EU3, but the 2nd appellant’s appeal was refused on the following day on 12 October 2023 and the 1st appellants application was refused on 13 November 2023. The decisions in relation to the 2 appellants were in the respondent’s bundle. The decision in respect of their brother V was not in the papers nor was there any reference to it save for the sponsor having set it out in his statement. The sponsor was able to find a copy of this decision and it was provided to Mr Diwnycz.
18. The sponsor confirmed that they had been living in Spain before 14 December 2020 and that he had entered the UK on 14 December 2020 with all 3 of his children. When asked the basis upon which he had resided in Spain, he provided a copy of a document that had not been in the bundle which appear to show that he had a residence document, although it was not translated.
19. The sponsor relied upon the grounds and the skeleton argument. The grounds set out that the FtTJ overlooked and failed to acknowledge the children were EU citizens at the time they had started living in the UK on 14 December 2020 and had continued living in the UK. It also stated that their father the sponsor was also living in the UK. Reference was made to the previous application and that whilst it had resulted in a refusal, it should have been clear that the appellants never lost their eligibility to the scheme by making the wrong application by applying under the sponsorship of their parent.
20. Reference is made in the grounds also to the circumstances of all 3 siblings, and that refusing leave was not in the best interests of them and that they were settled within the UK.
21. In the skeleton argument the same factual basis was set out and that the 3 siblings had remained in the UK since their entry as evidenced by the school letters which were before the FtTJ and at paragraph 3, an extract from the respondent’s bundle was reproduced to show that the appellants had submitted applications based on their own rights as EU Citizens ( see paragraphs 3.1 and 3.2).
22. There was a document that annexed to the grounds of appeal for the 2nd appellant which was a copy document for the sponsor’s grant of leave dated 6 August 2024. This gave him permission to stay as a family member under the Immigration Rules on the 10-year route for settlement. It sets out that he did not meet the requirements of the parent route as none of the children were British; one child had settled status but that he met the requirements because the decision-maker was satisfied that refusal would lead to unjustifiably harsh consequences as he had demonstrated family life with his children. It does not appear that this document was put before the FtTJ given that the appeal was determined on 6 August 2024. Mr Diwnycz behalf of the respondent was not able to find any current information on his system or provide any assistance as to why 1 of the siblings had been granted pre-settled status and the other 2 siblings had not.
23. Having had the opportunity to consider some of the background relevant to the grant of permission, Mr Diwnycz accepted that the grounds were made out for the reasons set out in the grant of permission. He therefore submitted that the decision should be set aside and could be remitted for a hearing.
Decision on error of law:
24. Whilst the grounds submitted sought to rely upon human rights issues (Article 8) permission was not granted on this basis for the reasons set out in the decision of UTJ Hirst.
25. I am satisfied that there is a material error of law in the decision of the FtTJ. This was a decision that was made on the papers and by reference to the decision letters the FtTJ identified that the appellants applications were made as joining family members of the relevant sponsor (see paragraph 15) and could not succeed because their sponsor was not a “relevant person” having obtained Spanish citizenship in December 2021 which was after the “specified date”. However, in the respondent’s bundle (for the 1st appellant) the application form was provided. As replicated in the skeleton argument it appears to show that the appellants were not applying on the basis of their relationship to their father. It is not entirely clear as underneath the extract of box 3.1 it states “application applying in own right or with sponsor and the number 0 is set out. Mr Diwnycz was not able to tell from the information he had available what that meant but on the face of it appears to show that the basis of the application was not as the decision letter had set out. It is also of note that in the decision letter reference is made to considering other routes of eligibility, although that does not appear to have been carried out. As that document was in the respondent’s bundle, the basis of the application was a material issue and does not appear to have been taken into account when assessing these appeals.
26. Furthermore, whilst the decision in respect of their sibling was not made available, either by the respondent or by the appellants, reference had been made to it in the statement filed by the sponsor dated 27 May 2024 and the FtTJ refers to it in his decision at paragraph 14, stating “for reasons unknown”. Whilst it may not have been determinative, the fact that one sibling in the same circumstances had been allowed should have alerted the FtTJ to that issue and that this necessitated making further enquiry of the respondent. I agree that the judge may have been some difficulty given he was determining the appeals on the papers, but those matters were relevant to the assessment of the appeals, particularly in view the difference in the decisions and the correct basis of the applications made. I note that in this context any decision whether to decide the appeals without a hearing is a judicial one to be made by the judge who decides the appeal without a hearing. The fact that a case has been placed in a paper list does not mean that a judge cannot consider whether a hearing should be listed as an oral hearing (see SSGA (disposal without considering merits; R25) Iraq [2023] UKUT 0012 (IAC).
27. For those reasons, the grounds are made out and therefore the decision of the FtTJ is set aside. Whilst there remain some issues to be determined and the respondent is to use her best endeavours to obtain information concerning the decision made in respect of their sibling, it is not necessary to remit the appeal as this appeal can be re-made by the Upper Tribunal on a date to be fixed in accordance with the directions served with this decision.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside. The appeal is to be remade at a resumed hearing on a date to be fixed and in accordance with the directions served with this decision.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

5 December 2024