Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-004918

First-tier Tribunal No: EU/55423/2023
LE/01820/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 April 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Secretary of State for the Home Department
Appellant
and

Stelina Canaliaj
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: Mr S Vokes, Counsel, instructed by Direct Access

Heard at Field House on 6 January 2025
Decision and Reasons
Introduction
1. The appellant in the appeal before me is the Secretary of State for the Home Department (“SSHD”) and the respondent to this appeal is Ms Stelina Tsanaliai or Canaliaj. However, for ease of reference, in the course of this decision I adopt the parties’ status as it was before the FtT. I refer throughout to Ms Canaliaj as the appellant, and the Secretary of State as the respondent.
2. The appellant is a national of Greece. The appellant’s appeal against the respondent’s decision dated 6 Jun 2023 to refuse an application under the EU Settlement Scheme was allowed by First-tier Tribunal Judge Jepson (“the judge”) for reasons set out in a decision dated 15 July 2024. The respondent claims the judge made a material error of law. Permission to appeal was granted by FtT Judge Chowdhury on 24 October 2024.
Background
3. Before turning to the decision of the FtT, it is helpful for me to set out in a little detail the background to the appellant’s immigration history and the appeal since there is a considerable amount of confusion.
4. According to a witness statement signed by the appellant on 9 February 2024, she first came to the UK in 2021. She claims she was in the UK for one month and made an application under the EU Settlement Scheme. She states her cousin helped her with the application. She states that before she received a decision on that application she was “ill-advised” that she needed to leave the UK, and she returned to Greece.
5. There is, in the respondent’s bundle a copy of an application that appears to have been made on 29 June 2021. The application is made by the appellant (whose name and DOB appear on the application) and was supported by a copy of the appellant’s passport. The appellant confirms in that application that she was not in the UK before 31 December 2020 and the application is said to be based on the appellant’s relationship “with someone eligible for the EU Settlement Scheme”. The relationship is described as “spouse or civil partner” and the sponsor’s name is Patrisha Devolaj who is said to be a “person of Northern Ireland”. The application number is “EUS-3434-****-****-9908. The appellant has provided evidence in the form of a ‘screenshot ‘of an application “started on 29 June 2021” that was given the ‘Unique application number 3434-****-****-9908’.
6. The respondent has provided a copy of a letter sent to the appellant dated 2 November 2021 baring that application number. It is a ‘Certificate of Application’ which is said to “confirm receipt of [the appellant’s] valid application on 13 September 2021 under the EU Settlement Scheme”. The reference to an application ‘on 13 September 2021’ appears to be erroneous since, as I have said the application was made on 29 June 2021. It is of course possible that the application was ‘started on 29 June 2021’ and finally submitted on 13 September 2021, but nothing turns on that.
7. In any event, whatever the date of the application, the appellant states she received a decision from the respondent in February 2022. She was studying and working in Greece at the time. She states she gave up her tenancy, stopped studying resigned from work and having made some money in Greece to fund her travel to the UK, in April 2023 she returned to the UK.
8. A copy of a letter sent by the respondent to the appellant dated 9 February 2022 is in the respondent’s bundle. The respondent’s reference set out on that letter is ‘3434-****-****-9908’. That is the same reference that appears on the appellant’s application made on 29 June 2021. As far as material, the letter states:
“Thank you for your application to the EU Settlement Scheme. From the information and evidence available to us it appears that you have already been granted indefinite leave in the United Kingdom, under Part 1 of Appendix EU to the Immigration Rules. This is also referred to as settled status.
Home Office records show that you submitted application 3434-0700-6180-4312 on 17 January 2020 and were granted settled status on 05 May 2020.
Since being granted settled status, there is no information which indicates that your status has lapsed or been lost.
…”
9. As I have said, the appellant claims that having received that letter she returned to the UK in April 2023. She had no issues at the airport. She states that when she then applied for a national insurance number she was informed that she does not have the right to work in the UK. She contacted the ‘Home Office’ and she was assured that she has ‘settled status’ and she was provided her with a ‘share code to work’ valid until August 2023. However, she was again refused a national insurance number and when she contacted the ‘Home Office’ again she was told that “the status” was given to her in error and that she would hear about her application once it had been considered by a senior caseworker.
10. The respondent then sent a further letter to the appellant dated 24 May 2023, this time baring a different reference (“33**0444”) stating:
“This certificate of application issued to you confirms that we received your valid application under the EU Settlement Scheme on 13-Sep-2021. You will receive notification of the decision on your application in due course.”
11. Again, the reference to an application “on 13 September 2021” is curious. The appellant denies ever having made an application on 13 September 2021 and the respondent has not provided any evidence of an application made by the appellant on 13 September 2021. As I have said, on the facts here, nothing turns on that.
12. In any event, the appellant then received the respondent’s decision dated 6 June 2023. That decision bares the same reference number as the application made by the appellant on 29 June 2021 (3434-****-****-9908). The reasons for refusing the application are 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 and rule EU11A of Appendix EU to the Immigration Rules.
You state that you are a spouse of a relevant sponsor. However, you have not provided sufficient evidence to confirm this. The reasons for this are explained below.
A relevant sponsor who is a relevant person of Northern Ireland must satisfy various requirements, including that they are a British citizen, or an Irish citizen, or a British citizen and an Irish citizen.
The required proof of a relevant person of Northern Ireland’s nationality, if they are an Irish citizen, is their valid passport or valid national identity card as an Irish citizen, or confirmation they have been or are being granted indefinite or limited leave to enter or remain under the EU Settlement Scheme (other than as a joining family member of a relevant sponsor). You have not provided the required evidence to show that Patrisha Devollaj is an Irish citizen.
The required proof of a relevant person of Northern Ireland’s nationality, if they are a British citizen, is information or evidence (either provided by the applicant or otherwise available to the Secretary of State) which demonstrates that the claimed relevant person of Northern Ireland is a British citizen.
You have provided the following information or evidence to show that Patrisha Devollaj is a British citizen: A British Passport. Whilst this document indicates that your sponsor is a British Citizen, this passport indicates that your sponsor was born in Dar Es Salaam.
As your sponsor was not born in Northern Ireland, they do not meet the definition of a relevant person of Northern Ireland.
You have provided a Tanzania Birth Certificate which confirms both your sponsor’s parents were British Subjects at the time of your sponsor’s birth.
Therefore your relevant EEA sponsor has been a British citizen since birth and they are not considered to be a relevant naturalised British citizen for the purposes of the definition of regulation 2(1) the EEA Regulations, and the EU Settlement Scheme.
Therefore, you do not meet the requirements for settled status as a joining family member of a relevant sponsor.
Careful consideration has also been given 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 and rule EU14A of Appendix EU to the Immigration Rules.
However, for the reasons already explained above, you have not provided sufficient evidence to confirm that you are a spouse of a relevant sponsor. Therefore, you do not meet the requirements for pre-settled status on this basis.
It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU1 1 or rule EU1 1 A or for pre-settled status set out in rule EU14 or rule EU14A of Appendix EU to the Immigration Rules. This is for the reasons explained above.
We have also considered whether you meet any of the other eligibility requirements under Appendix EU. However, from the information and evidence provided, or otherwise available, you do not meet any of the other these other eligibility requirements.
Therefore, your application has been refused under rule EU6.
…”
The Decision of the First-tier Tribunal
13. The judge refers briefly to the respondent’s decision dated 6 June 2023 at paragraph [8] of the decision. The judge summarises the appellant’s account of events at paragraphs [11] to [17] of the decision. The judge records, at [18] and [19], the respondent’s position that the “Appellant having EUSS status must be a mistake”. The Tribunal was invited to determine the appellant based upon the application made by the appellant and the respondent’s decision under appeal.
14. The judge’s decision and reasons are set out at paragraphs [20] to [32] of the decision. The judge again records the position adopted by Presenting Officer that the letter of 9 February 2022 is erroneous and the Tribunal should confine itself to the decision of 6 June 2023 that is under appeal. The judge notes, at [23], that there was evidence that the content of the letter dated 9 February 2022 is erroneous and caused by a mix up over the ‘URN’s’ (Unique Reference Numbers). It appears from what is said by the judge at paragraph [25] that the judge expressed some reluctance to permit the respondent to adduce further evidence regarding the content of, and any error in the letter of 9 February 2022. The matter does not appear to have been pursued further by the Presenting Officer.
15. In the paragraphs that follow it appears the judge was persuaded that in light of the decision of the Court of Appeal in Vasa v. SSHD [2024] EWCA Civ 777, the respondent is to be taken, by what is said in the letter dated 9 February 2022 to have ‘confirmed’ the appellant had been granted ‘settled status’ and the appellant had acted to her detriment in replying upon the content of that letter. The judge concluded:
“31. The authority cited makes clear that, even if status is granted either by mistake or in excess of powers that does not matter. The question is whether the grant can be reasonably relied on. In this case, I find it could (and was.) The Appellant had a letter, which has never been contradicted that I can see, indicating status was in place.
32. The Respondent seeks to address that by arguing there never was any status here. No evidence of that has proposition been produced. It would in my judgment have been wholly unfair to allow any further material to be produced at court on that topic. The Respondent was aware of the issue since at least the review in May. Ample time has passed to submit additional evidence. Even if it (sic) there never was status, the Appellant has a letter indicating the contrary. Given at no point has the Respondent suggested the contrary to her, it would have been reasonable to rely on it.”
The Grounds of Appeal
16. The respondent claims there is a distinction between an ‘incorrect notification that status had been granted” and an “incorrect grant of status”. In Vasa, there had been an incorrect grant of status. There, two non-EU siblings had come to the UK border before withdrawal and immigration officers had given their passports stamps saying that they were admitted to the UK under the Immigration (European Economic Area) Regulations 2016. Here, the respondent claims the letter dated 9 February 2022 does no more than erroneously inform the appellant that she had already been granted settled status. It is not a decision letter confirming the respondent has considered an application made by the appellant and reached a decision that confers settled status. It does not itself confer settled status in the way that a stamp endorsed by an immigration officer, even if erroneous, does.
17. The respondent claims the question of revocation of settled status does not therefore arise. A status that has never been conferred on the appellant cannot be revoked.
18. The respondent claims the judge simply fails to consider or set out any reasons explaining how the relevant requirements set out in rule EU11 and EU11A of Appendix EU to the immigration rules are met. Furthermore, the judge does not explain or provide any reasons for concluding that the appellant falls within the scope of Article 10 of the Withdrawal Agreement, when even on her own case, she did not arrive in the UK until June 2021 and was therefore not in the United Kingdom before 31 December 2020.
The Hearing of the Appeal Before Me
19. Mr Wain submits the decision under appeal before the FtT is the decision of 6 June 2023. On the appellant’s own account, she had not made any application to the respondent prior to 31 December 2020 and she had not made any application on 17 January 2020 (as referred to in the letter of 9 February 2022). The respondent does say in her decision of 6 June 2023 that the appellant had made an application on 17 January 2020 and it is clear that the letter of 9 February 2022 was erroneously issued to the appellant.
20. Mr Wain submits that in order to qualify for status under the EU settlement scheme, the appellant needed to be in the UK for five years prior to the specified date. On the appellant’s own evidence, she accepts she head neither been in the UK for five years prior to the specified date, nor was she in the UK as at the specified date. Mr Wain submits the judge erroneously treated the 9 February 2022 letter as the respondent ‘facilitating the appellant’s return to the UK’. However the appellant’s circumstances can be distinguished from those in Vasa because there, the immigration Officer had endorsed a stamp on the passports that constituted facilitation of entry on arrival in the UK. That is different to the circumstances here because the appellant did not enter the UK prior to the specified date and so she was not exercising her rights of free movement. The letter of 9 February 2022 cannot amount to ‘facilitation’ for the purposes of the Withdrawal Agreement. Only a decision upon an application made prior to the specified date whilst a person is residing in the UK in accordance with EU law is ‘facilitation’. Mr Wain refers to the decision of the Court of Appeal in Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 in which the Court confirmed, at [65], that Article 10(3) of the Withdrawal Agreement applies to a person "whose residence is being facilitated" before the end of the transition period under national law. He also refers to the decision of the Court of Appeal in Celik v SSHD in which the Court explained, at [66], that Mr Celik did not fall within the scope of Article 10(1)(e)(i) as he was not the spouse of an EU national, residing in the United Kingdom in accordance with EU law, before the end of the transition period. The Court of Appeal said:
“60. Articles 10(2) and (3) are dealing with situations where the residence of persons is facilitated by the host State in accordance with its legislation. Article 10(2) applies where an application has been made and residence facilitated before the end of the transition period. Article 10(3) applies where an application was made before the end of the transition period but only granted, and residence facilitated, after the end of that period.
61. The reference to residence being facilitated in Articles 10(2) and (3) means that a decision has been taken in relation to a particular individual under the relevant national legislation granting that individual a right to enter or reside in the relevant state. That interpretation reflects the language and purpose underlying Article 10(2) and (3) (and is also consistent with the provisions of the Directive on the position of extended family members discussed above). Article 10(2) refers to persons "whose residence was facilitated". Article 10(3) requires that a person "has applied" – i.e. that an individual has sought the right to enter or reside in the relevant state – and "whose residence is being facilitated" (i.e. the application has been granted and residence permitted). It is a means of ensuring that people who are not family members as defined but are extended family members (such as unmarried partners in a durable relationship) of EU nationals may apply for residence under national law and, if granted such rights, those persons fall within the scope of Part Two of the Agreement. The requirements are not satisfied simply because a state adopts national legislation under which residence may be facilitated.”
21. Mr Wain submits there has been no application for ‘facilitation’ by the appellant before the specified date, and the appellant cannot therefore come within the scope of the Withdrawal Agreement. He submits the respondent’s letter of 9 February 2022 was erroneously considered by the judge to amount to ‘facilitation. Mr Wain submits the judge failed to make adequate findings as to whether the appellant meets the requirements for the settlement scheme and Withdrawal Agreement, leaving the respondent at a loss as to the basis upon with the appeal was lawfully allowed.
22. In reply, Mr Vokes adopts the rule 24 reply settled by him, dated 24 November 2024. He submits the judge had to grapple with the fact that the appellant had, according to the letter sent to the appellant on 9 February 2022, been granted status and the appellant’s entry to the UK in April 2023 was ‘facilitated’ by that letter. The letter of 9 February 2022 was a response to the application made by the appellant in June 2021. The content of the letter was the trigger for the appellant to exercise the right that she had been granted and when questions were raised because the appellant could not get a national insurance number, she was assured that she had status in the UK. In the circumstances the judge did not, Mr Vokes submits, have to address the reasons for refusing the application set out in the decision dated 6 June 2023. The judge was entitled to proceed on the basis that the appellant had settled status and that was the end of the matter.
Decision
23. It is helpful to begin by saying that it appears to be uncontroversial that the appellant was not in the United Kingdom on 30 December 2020 and neither had she made any application to the respondent prior to that date. According to the appellant’s statement dated 9 February 2024 that was before the FtT she “first came to the UK in 2021”. In the appellant’s skeleton argument that was before the FtT it is said she entered the UK in “May/June 2021”. It is uncontroversial that the appellant made an application to the respondent on 29 June 2021. The appellant confirms in that application that she was not in the UK before 31 December 2020 and the application is said to be based on the appellant’s relationship with “with someone eligible for the EU Settlement Scheme”. The relationship is described as “spouse or civil partner” and the sponsor’s name is Patrisha Devolaj who is said to be a “person of Northern Ireland”. The application number is “EUS-3434-****-****-9908.
24. Having made that application, the appellant returned to Greece. She received a letter from the respondent dated 9 February 2022 that has the same reference number as the application she made on 21 June 2021. The letter states:
“Home Office records show that you submitted application 3434-0700-6180-4312 on 17 January 2020 and were granted settled status on 05 May 2020.
Since being granted settled status, there is no information which indicates that your status has lapsed or been lost.
…”
25. At paragraph [30] of the decision of the FtT, the judge notes the appellant re-entered the UK on the basis of the letter dated 9 February 2022 “which purported to confirm her status”. The appellant did not return to the UK, on her own account until April 2023 and there was no evidence before the FtT of any attempts made by the appellant to confirm the accuracy of the letter in light of what is said in the latter about an application having been made on 17 January 2020. In any event, the judge appears to accept that the letter of 9 February 2023 “purported” to confirm the status of the appellant rather than to confer status on the appellant.
26. The position here can be distinguished from that in Vasa. In Vasa, the Court of Appeal noted that two non-EU siblings had presented themselves at the border wanting to be allowed to come and live in the UK with their siblings who were EU nationals. The immigration officers had taken decisions to admit them. Those decisions had been recorded by the stamps in their passports. The Court of Appeal said that considered objectively, a reasonable person would understand the stamps to record a decision that the two non-EU siblings had been allowed to come into the UK and live here with their EU national relatives. The stamps did not constitute relevant documents as defined by Appendix EU and did not satisfy the requirements of Appendix EU Annex 1. However, Article 10(2) of the Withdrawal Agreement brought family members within the scope of the Agreement if they were persons "whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period". The non-EU siblings’ residence in the UK had been facilitated by the acts of the immigration officers. They had been admitted pursuant to decisions taken by public officials: they had been allowed to come to and reside in the UK. They fell within the scope of Article 10(2). The Court said:
“62. …There is the question of their rights under the Withdrawal Agreement. Article 10(2) brings family members (defined by Article 3 of the Directive) within the scope of the Withdrawal Agreement if they are persons "whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period". That is what happened in the present case. Mr Vasa's and Mr Hasanaj's residence were facilitated by the acts of the immigration officers. They were admitted to the United Kingdom, pursuant to decisions taken by public officials, that is, they were allowed to come to and reside in the United Kingdom. They fall within the scope of Article 10(2). They did not have any rights derived from EU law to reside in the United Kingdom (as they were not nationals of an EEA member state nor were they direct family members of such nationals, within the meaning of Article 2 of the Directive). But, if the United Kingdom chose (as it did) to create a new residence status, then Article 18(1)(l)(iv) of the Withdrawal Agreement provides for that status to be granted to extended family members (as defined by Article 3 of the Directive) on production of identity documents and "a document issued by the relevant authority in the host state in accordance with Article 3(2) of the Directive 2004/38", i.e. the document facilitating their residence in the United Kingdom. That document was, in the present case, the stamps placed in the passports by the immigration officers.
63. In those circumstances, refusal by the Secretary of State to accept the document issued by the relevant national authorities did amount to a breach of the rights of Mr Vasa and Mr Hasanaj under Article 18(1)(l)(iv) of the Withdrawal Agreement…
27. Here, it must have been obvious to the appellant that she had not submitted any application to the respondent on 17 January 2020 and she had not received any confirmation from the respondent in or around May 2020 that she had been “granted settled status”. I accept, as Mr Wain submits, the letter of 9 February 2022 does not in fact confer “settled status” upon the appellant. It is not a decision in response to a specific application, but sets out, albeit erroneously, a pre-existing state of affairs. The appellant is informed that the Home Office records show that she had made a previous application and was granted settled status. That was a state of affairs that it must have been obvious to the appellant, was erroneous.
28. It is unfortunate that the respondent had not filed evidence to demonstrate that the letter of 9 February 2022 was sent to the appellant in error. There was plainly some discussion before the Tribunal regarding evidence that was capable of being adduced but, it seems, the Presenting Officer did not press an application for permission to rely upon that evidence having been given a steer by the Judge that it might be difficult to persuade the Tribunal to allow further evidence on that topic at such a later stage.
29. In my judgment, the judge erred in law in his decision that the appellant had settled status. The parties agree that if there is an error of law in the decision of the FtT, I should go on to remake the decision.
Remaking the decision on the appeal
30. On 29 June 2021 (that is, after the end of the transition period) the appellant applied for leave to remain as the spouse of an EU national. It was for the appellant to make the proper application to the respondent. The role of the respondent is to determine the application. The appellant is not in fact the ‘spouse or civil partner’ of Patrisha Devolaj. Patrisha Devolaj is the wife of the appellant’s paternal cousin. At its highest, the appellant is the extended family member of an EEA national. The application made by the appellant on 29 June 2021 was refused by the respondent for reasons set out in a decision dated 6 June 2023. It is that decision (and only that decision) that is the subject of the appeal. The respondent referred to rule EU11 and EU11A of Appendix EU to the immigration rules. The respondent said the appellant:
a. Has not provided sufficient evidence to confirm she is the spouse of a relevant sponsor (i.e. Patrisha Devollaj)
b. Has not provided the required evidence to show that Patrisha Devollaj is an Irish citizen.
31. The respondent also noted that although Patrisha Devollaj is a British citizen, has been a British citizen since birth and is not considered to be a relevant naturalised British citizen for the purposes of the definition of regulation 2(1) the EEA Regulations, and the EU Settlement Scheme. The respondent concluded the appellant does not meet the requirements for settled status as a joining family member of a relevant sponsor. The respondent also concluded the appellant does not meet the requirements for pre-settled status.
32. The judge did not engage with the reasons set out in the respondent’s decision at all. In any event, the appeal could not have succeeded. The appellant was not on any view the spouse or civil partner of her sponsor. Article 10(3) of the Withdrawal Agreement applied to a person "whose residence is being facilitated". That is, an extended family member who had applied for ‘facilitation’ before the end of the transition period (31 December 2020). The appellant had not done so.
33. It follows that I remake the decision and dismiss the appeal.
Notice of Decision
34. The decision of First-tier Tribunal Judge Jepson dated 15 July 2024 is set aside.
35. The decision in the appeal is remade in the Upper Tribunal.
36. The appellant’s appeal against the respondent’s decision of 6 June 2023 to refuse her application for a residence card under the EU Settlement Scheme under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, is dismissed.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 April 2025