Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005412

First-tier Tribunal No: EU/50651/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th May 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

Between

Mr Ruben Cristiano Gonçalves De Brito
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant (Claimant): Mr De Brito, Litigant in Person
For the Respondent: Dr Ibisi, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 7 April 2025

DECISION AND REASONS
1. This is our oral decision which we delivered at the hearing today.
Introduction
2. Although it is the Secretary of State who brings the appeal, to ease in following this decision, we shall refer to the parties as they were at the First-tier Tribunal. Mr De Brito shall be referred to as the Claimant and the Secretary of State as the Respondent.
3. The Secretary of State appeals with the permission of First-tier Tribunal Judge Parkes against the decision of First-tier Tribunal Judge Shergill (“the Judge”) dated 30 September 2024 which had allowed the Claimant’s appeal on the basis that he was entitled to pre-settled EU status. The Judge had considered the matter on the papers, as had been requested by the Claimant.
4. At the hearing today, we heard from Dr Ibisi, Senior Home Office Presenting Officer and we have heard from Mr De Brito, who acts as a litigant in person. Mr Dr Brito made clear he did not want an interpreter. He said it was a new experience for him to have to appear at court, but of course we sought to assure him that this new experience was not unusual because many persons appear before without legal representation. We ensured that he understood the procedure and he was granted every opportunity to say what he wanted to in relation to his case. We found Mr Dr Brito’s English to be of a high standard.
Background
5. The relevant background is that the Claimant is a Portuguese national. He had made an application pursuant to the EU Settlement Scheme on 3 June 2021. The Respondent’s decision in respect of that is dated 10 January 2024. That states in part as follows:
“On 3 June 2021 you applied under the EU Settlement Scheme.”
The Respondent’s reasons for refusal were:
”However, whilst there is evidence that you have resided in the UK periodically between September 2013 and November 2022, the evidence available to us does not show that you have resided in the UK for five continuous years. You have not supplied enough evidence to show you were in the UK for a continuous five year period. Therefore, you do not meet the requirements for settled status on the basis of a continuous qualifying period of five years.
…
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.
…
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 2013 and November 2022, you have not provided any 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 21 September 2021 and 12 December 2023 to ask for the information / evidence specified above, but what you have not provided any evidence to show 5 years continuous residency for the qualifying period.”
First-tier Tribunal’s decision
6. The matter was considered on the papers by Judge Shergill and in a decision, dated 30 September 2024, it was said as follows:
“3. The evidence relating to 5 years continuous residency in the UK as a ‘qualified person’ as it was pre-Brexit (not ‘relevant EEA citizen) is weak. I do not know when the appellant says his 5 years ran from. That is relevant because he discloses he was imprisoned for 18 months, which would have reset the clock. The appellant cannot show he has been here for 5 years continuous residence. I do not accept EU11 has been met on the evidence before me.
4. There does not appear to be a dispute as to the appellant being in the UK before the Brexit deadline. ….
5. I am unclear what those accepted dates are. If they are in the table then it was incumbent for that to have been properly reproduced. I consider it is more likely than not that the appellant was a relevant EEA citizen and meets Condition 1 of EU14.
6. The appeal is allowed on that sole basis. The appellant is entitled to pre-settled status only. He should obtain advice or do research as to what that means for him.”
The Grounds of Appeal
7. The Secretary of State had appealed against Judge Shergill’s decision. The appeal was set out within one ground which unhelpfully has one large subheading referring to a material misdirection in-law, failure to take into account and/or resolve conflict of fact or opinion on two matters. The ground states:
“It is respectfully submitted, that in allowing the appeal, FTTJ Shergill errs in that they fail to consider the lack of evidence produced to show the appellants presence in the UK prior to the relevant date (31/12/2020). In order to qualify for pre settled status, the appellant is required to demonstrate that he was present in the UK during the six month period prior to Brexit, he has failed to do so, as such it is unclear on what basis the FTTJ finds the appellant to have satisfied condition 1 of EU14. FTTJ Shergill accepts that the appellant has not demonstrated his entitlement to settled status due to the lack of documentation to show 5 years continuous residence, however having allowed the appeal finding the appellant to have shown he was present in the UK prior to Brexit, they fail to identify the evidence that demonstrates this. It is therefore respectfully submitted, that the FTTJ materially errs in allowing the appeal on this basis.”
8. When granting permission to appeal, First-tier Tribunal Judge Parkes said on 26th November 2024:
“2. The grounds argue that the Judge erred in allowing the appeal as there was no evidence to show the Appellant's presence in the UK for 6 months before the end of 2020.
3. In paragraph 4 the Judge noted that there was a dispute about the Appellant's presence before the deadline, there was evidence of his working in the UK but the evidence was confusing and partial. The reasons given in paragraph 5 start with the observation that the Judge was unclear as to what dates it was accepted the Appellant was in the UK, they are limited and do not appear to explain the basis on which the Judge found that the Appellant was a qualified person.”
The Hearing Before Us
9. At the hearing today, we heard submissions, firstly on behalf of the Secretary of State from Dr Ibisi. She said that Judge Shergill had erred in law in respect of the lack of evidence. She said if we were to find that there is a material error of law then there could be a remaking of the matter at the hearing today. It was submitted that there was a failure to demonstrate continuous residence and that thereby the appeal ought to be dismissed altogether.
10. We heard at some length from Mr De Brito and he set out that he did understand that there was missing evidence in his case but he submitted matters in 2021 last year. He told us that he had sent all that he could, including letters from those years. For the six months prior to Brexit, he said I was “not exactly working at that time”. He said he had worked for recruitment agencies. He said there were no payslips and the ‘work was down’. But of the payslips he did have, he had sent more, and he said he had thought that was best. It was difficult for him to get payslips for every single day and every single month. He said he sent payslips for every single year, albeit not for every month. He said, “I do not know what else to say. It was my fault because after Brexit we started the application, I applied for it and sent the information at that time. I was told about it. I have done my best to send all the information.”
11. Mr De Brito said that he provided the written evidence to the Judge who considered the matter on the papers. Asked what else he wanted to say, Mr De Brito said most of his case was about missing information and it was very hard to find that missing information because he could not find evidence for every single month for every single year, but he said he felt he had accounted for every single year he had spent in this country.
12. Dr Ibisi said in reply that there was no evidence of continuous residence. What was required was continuous residence. For example, it could by way of utility bills or bank statements and thereby Judge Shergill erred because there was still no evidence shown for the six months continuous residence of 2020 or 2021.
13. Mr De Brito was given the opportunity to have the final word. He said prior to those years he was with a different bank and that he was now with Barclays and he was with Lloyds Bank previously and it was cancelled. He said he had then tried to get bank statements but the bank was not able to provide them. The only thing he said he was able to do was to go to the headteacher a couple of months ago to ‘testify on his behalf’, but “it did not come to fluidity” and the headteacher had changed. There had been a period of ‘seven to eight years straight’, he said. He referred to the Barclays bank statements. We asked what else he wanted to say. He said he had tried his best about the missing information and the ‘bank statements and stuff’.
Discussion and Remaking of Decision
14. We deal first with the error of law. In our judgment it is plain that the Judge materially erred in law. There has been an inconsistent finding because on the one hand the Judge found that that there was insufficient evidence of 5 years continuous residence as a qualified person at paragraph 3 of the decision and that EU11 was not met. On the other hand, at paragraph 5 the Judge said that they were unclear what the accepted dates were, but nonetheless that “the appellant was a relevant EEA Citizen and met condition 1 of EU14’. We conclude that it was a material error of law for the Judge to come to that conclusion because the evidence had not been provided by the Claimant to deal with the 5 years continuous residence and therefore it did not exist for the pre-settled status time periods either.
15. Of the documents which were submitted by the Appellant there is simply no basis upon which it can be said that there was evidence of continuous residence for the six months prior to 31 December 2020. In the circumstances, the material error of law by Judge Shergill was manifest. Whilst we appreciate Judge Shergill’s task was more difficult with the haphazard way in which bank statements, payslips and the like were provided, nonetheless, despite the hearing was on the papers, there was a material error of law in the Judge’s decision.
16. We set that decision aside. We indicated to the parties as to what the approach might be if we were to find that there is a material error of law. We remind ourselves of the Senior President’s Practice Direction, the case of Begum and the Court of Appeal’s decision in AEB. It is appropriate that we remake the decision especially since the parties are here and because it was made clear in the directions for this hearing that the matter would be heard today.
17. No further evidence has been provided by Mr De Brito in this case.
18. The past evidence simply does not assist him to succeed. Nor do we accept that it was not possible for Mr De Brito to obtain utility bills, previous bank statements (for at least the last 6 years, even if later years statements were not available) or the like. None of that had been presented to us and the burden of proof remains on Mr De Brito.
19. Whilst we make every allowance that Mr De Brito was without legal representation, it is very clear that he has had a very significant amount of time to get his documentation in order. It is clear that Mr De Brito was originally made aware of the deficiencies in his documentation in the years 2021, 2022, 2023 and then in September 2024, when Judge Shergill specifically said that Mr De Brito should obtain advice or do research as to what the decision meant.
20. In the circumstances, although we have done all we can to assist Mr De Brito as a litigant in person, we cannot advise him, nor obviously can we obtain the evidence on his behalf. This is a case in which the Claimant simply does not meet the burden of proof which rests upon him. The evidence is wholly deficient and, in the circumstances, we conclude that the Claimant’s appeal must be dismissed.
Notice of Decision
The decision of First-tier Tribunal Judge Shergill contains a material error of law.
We set aside that decision and we remake the decision.
We dismiss the Claimant’s (Mr De Brito’s) appeal on all grounds, including in respect of pre-settled EU status.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2025