Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004740

First-tier Tribunal No: EA/50128/2024
LE/02745/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 March 2025

Before

UPPER TRIBUNAL JUDGE PICKUP
SITTING IN RETIREMENT

Between

Ivo Sokoloski
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Litigant in Person
For the Respondent: Ms A Nolan, Senior Presenting Officer

Heard at Field House on 11 March 2025

DECISION, REASONS AND DIRECTIONS

1. This is the remaking of the decision in the appeal of the appellant, Mr Sokoloski, against the Secretary of State’s decision of 6.2.24 refusing his EUSS application for pre-settled status as the spouse/civil partner of Ms Zilda Da Palma Bernado (ZB), an Italian national.
2. In the decision promulgated 10.10.24, the First-tier Tribunal, deciding the matter on the papers alone, allowed the appeal. The Secretary of State then sought and was granted permission to appeal to the Upper Tribunal.
3. In my decision promulgated 6.2.25, I found, for the reasons therein set out and summarised below, that the First-tier Tribunal had erred in law in the making of the decision in the appeal.
4. The Secretary of State had conceded that ZB was an EEA national and there was the necessary residence in the UK of the EEA national prior to 31.12.20. The outstanding issue in the appeal to the First-tier Tribunal was whether the EEA national qualified under Annex 1 of Appendix EU, which required evidence of a continuous qualifying period of residence extending beyond 31.12.20. This in turn depended on the narrow issue as to whether Mr Sokoloski could prove that there was no gap in continuity of ZB’s residence in the UK in the period between January 2021 and December 2022, the burden being on him. His case was that ZB had never left the UK during the period in question.
5. In essence, the First-tier Tribunal found as a fact that ZB was a relevant EEA national who had a continuous period of residence in the UK both before and after the specified date of 31.12.20. Hence, the appeal was allowed.
6. The Secretary of State appealed, asserting that the First-tier Tribunal Judge erred in (i) stating in the impugned decision that the issue of continuous residence had not been raised in the Secretary of State’s refusal decision. The grounds also argued (ii) that the judge erred in concluding that the Secretary of State would not have granted pre-settled status if they were not satisfied as to the continuity of residence.
7. In summary, I found that the judge erred in not accepting that the issue of continuous residence had not been raised before the First-tier Tribunal appeal hearing. Although not mentioned in the refusal decision, it was raised in the Review, which was in the papers before the First-tier Tribunal and should have been properly addressed.
8. I also found an error of law in the First-tier Tribunal in stating at [13] that “If the Home Office had not been satisfied of her residence in the United Kingdom, she would not have been granted pre-settled status.”
9. However, the respondent’s clear case was that pre-settled status had been granted in error. The refusal decision stated, “Therefore, it has been decided that, on the basis of the information and evidence currently available, your EEA citizen family member’s pre-settled was granted in error.” Regrettable though the error in granting status was, the Secretary of State was not bound by what it considered to be an error, uncovered only when assessing the case for the First-tier Tribunal appeal. I was satisfied that the judge erred in law and purported to unlawfully bind the Secretary of State to its earlier decision made in error. The issue was properly before the First-tier Tribunal and should have been resolved on the evidence before the Tribunal.
10. I also found that whilst the bank statements postdating 31.12.20 were referenced in the decision, the judge made no finding of fact in relation to those documents, so that the conclusion and finding as to continuity of residence could not stand independently of the linked errors relating to whether the issue had ever been raised and the reliance on the purportedly erroneous decision to grant pre-settled status.
11. For those reasons, I found the decision of the First-tier Tribunal flawed for material error of law. I allowed the Secretary of State’s appeal and set aside the impugned decision, to be remade afresh.
12. As the remaining issue of continuity of ZB’s residence between January 2021 and December 2022 is very narrow, I was satisfied that this a matter which ought to remain in the Upper Tribunal for a face-to-face continuation hearing for the remaking of the decision in the appeal and issued directions accordingly.
13. The matter then came back before me at a face-to-face hearing at Field House on 11 March 2025. The appellant remains unrepresented and as a Litigant in Person. He had the assistance of an interpreter in Brazilian Portuguese.
14. At the hearing on 29 January 2025, Mr Sokoloski had sought to adduce additional evidence as to ZB’s residence in the UK over the period in question. I explained to him then that as the issue was whether the First-tier Tribunal erred in law, I could only consider the evidence that was before the First-tier Tribunal at that time, with the judge dealing with the case on the papers without the benefit of hearing oral evidence or submissions. However, I am now able and required to consider all available evidence on the matter in issue.
15. The appellant has now lodged with the Tribunal a skeleton argument and a considerable number of documents. It is not clear to me which, if any, of these were before the First-tier Tribunal, but I understand that at least some of them were not. The difficulty was that neither I nor Ms Nolan for the Home Office had seen these documents and Mr Sokoloski did not have copies and was unable to tell me with any clarity what those documents comprised. They were sent to the Tribunal by email by someone assisting the appellant. Rather than adjourn the appeal, I stood the case down to allow the documents to be printed and for Ms Nolan to have time to consider them. I confirm that I have examined the documents and taken into account the skeleton argument before reaching my decision in this appeal.
16. On resumption of the hearing, Ms Nolan confirmed that she had had sufficient opportunity to examine the documents, which comprised a skeleton argument and many bank statements in the account of ZB, covering the period January 2021 to December 2022. Whilst there are gaps in the statements between October and November 2021 and October and November 2022, Ms Nolan accepted that the bank account demonstrated regular use and expenditure within the UK. Even if the gaps represented absences from the UK by ZB, during those months of October and November of 2021 and 2022, which is not the appellant case, Ms Nolan accepted that those absences would be of themselves insufficient to break continuity of residence as up to 6 months absence is permitted. In the circumstances described, Ms Nolan explained that she did not resist the appeal.
17. Having also satisfied myself that ZB’s bank statements of sufficiently discharge the burden on the appellant to demonstrate the continuity of her residence, I agreed with Ms Nolan’s sensible approach. For the reasons explained above, the sole issue of continuity of residence must be resolved in the appellant’s favour and, therefore, the appeal allowed.

Notice of Decision

The decision in the appeal is remade by allowing the appellant’s appeal against the respondent’s refusal decision.

I make no order as to costs.

DMW Pickup

Judge of the Upper Tribunal
Immigration and Asylum Chamber
Sitting in Retirement

11 March 2025