Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-005628
First-tier Tribunal Number: EU/57480/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued

On 12th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

YOVANNA SARAHI PENA PEREZ
(Anonymity order not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: The appellant appeared in person
For the Respondent: Miss Cunha, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 27 February 2025
The Appellant
1. The appellant is a citizen of Spain born on 1 July 2002. She appeals against a decision of the First-tier Tribunal dated 7 October 2024, decided on the papers, which dismissed her appeal against a decision of the respondent dated 15 September 2023. That decision in turn was to refuse the appellant’s application for leave to remain under the EUSS Regulations. I make no anonymity order as there is no public policy reason for so doing.
2. The appellant entered the United Kingdom by air on 21 December 2019 and thereafter, at a point which is in dispute, she worked. She applied for settled status under the EUSS scheme on 19 May 2023 arguing that she was entitled to settlement under Appendix EU alternatively, pre-settled status because she was resident in the United Kingdom prior to the date specified in the regulations (31 December 2020). She could show documentation to prove that she was resident because she was working at the material time for a company B & M Design & Build Ltd as a cleaner.
The Decision at First Instance
3. The judge had before him a number of documents supplied by the appellant some of which had not been before the respondent at the time of the decision. These were said to support her case that she was working before the specified date and thus was resident. The judge set them out at [13] to [16] of the determination and I summarise below those documents which are relevant to the issue in the case:
(i) Wage slips and P60s. These were wage slips for the Appellant’s employment with B & M Design & Build Ltd covering the period from 30 April 2020 until 31 March 2021; a P60 for the tax year 6 April 2020 until 5 April 2021 showing a total gross salary of £8640 for the same employer;
(ii) A letter from B & M Design & Build Ltd dated 8 March 2024 which purports to certify that the Appellant works as a cleaner and started with the company on 1 April 2021. The letter further stated that the Appellant is contracted for a permanent part-time position receiving a salary of £760 per month.
(iii) A printout from HMRC showing PAYE details for the Appellant. This showed a start date of 1 April 2020 for the Appellant at B & M Design & Build Ltd with an end date on 31 March 2022.
4. The judge dismissed the appeal finding that he could not rely on the documents produced by the appellant. Whilst the HMRC screenshot suggested that the Appellant started working for her employer (B & M Design & Build Ltd) on 6 April 2020, by contrast the letter from the company itself stated that the Appellant began to work for them on 1 April 2021. The same letter dated 8 March 2024 stated that the Appellant continued to be employed by the company as a cleaner whereas the HMRC evidence indicated that she ended her employment with B & M on 31 March 2022
The Onward Appeal
5. The appellant appealed against this decision arguing that a key issue in the case appeared to be an error made by her manager in the letter of 8 March 2024. An incorrect date had been stated in the letter as the commencement of her employment with the company. She could supply evidence however such as payslips which showed the correct dates for her employment. She was concerned that the First-tier Tribunal had focused on this issue of the date in the letter when in fact there was no discrepancy between her employment documents. Due to financial constraints she had been unable to arrange legal representation for her hearing and thus requested an appeal on the papers. This may have prejudiced the matter.
6. The First-tier Tribunal refused permission to appeal but the appellant renewed her application to the Upper Tribunal who granted permission to appeal stating:
“[The judge’s] findings arguably necessitate the conclusion that the P60 for 2020-21 and the 2020 payslips were unreliable evidence of work done during that time. The former document is issued by HMRC, so is logically either genuine or has been forged / doctored. It is therefore narrowly arguable that the Judge ought to have considered whether an oral hearing should be listed – Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 – notwithstanding the attention paid to procedural fairness. Such an error, if established, may be material; the Judge also appears to have misunderstood the start date for employment on the HMRC printout.”
The Hearing Before Me
7. In consequence of the grant of permission the matter came before me to determine in the first place where there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would rehear the appeal. If there was no error the decision at first instance would stand. As the this was the appellant’s appeal and she was giving her evidence through the court appointed interpreter but was not legally represented I first heard from the respondent in order to enable the appellant to understand the case she had to meet.
8. The respondent argued that the judge had been correct to proceed with the hearing on the papers. In the absence of evidence from the Home Office putting the appellant’s explanation into doubt it would be wrong to find dishonesty. In the refusal letter the respondent had pointed out problems with the documentary evidence and the respondent had tried to email the appellant numerous times between 18 August 2023 and 7 September 2023 to clarify the matter.
9. The Home Office concern was that the documents submitted by the appellant were not just confined to payslips but there was also the problem of the letter from the employer dated 8 March 2024. In that letter the employer had said the appellant’s employment began in April 2021 and thus she could not have been working for the employer at the relevant date (which had passed over three months earlier). It was accepted that the First-tier Tribunal had not found the employer’s letter to be a fraud. The judge was therefore entitled following the authority of Shen to deal with the matter on the papers. The appellant’s grounds were misplaced.
10. The judge had attached weight to the date the appellant entered the United Kingdom but the appellant had not provided sufficient evidence that she was exercising treaty rights. The HMRC evidence was only in the form of P 60s for the years ending 5 April 2021, 5 April 2022 and 5 April 2023. As the evidence to show employment was not there the respondent had tried to contact the appellant. Other evidence such as supporting witnesses who might have been able to attest to the truth of what the appellant was alleging were not before the judge. She had appealed out of time.
11. In response the appellant stated that she had shown all the evidence she had. The respondent was basing her decision on a human error. The appellant had been intending to study and to did not want to lose the ability to do that. She referred to the difficulties that she had had with previous immigration advice. She had given her money to an adviser who had disappeared with it. She did not know where he or her money were now and could not afford to have representation at the hearing and why she had not attended in person at first instance, lawyers were so expensive.
12. I asked the appellant to clarify what her response was to the respondent’s argument that the respondent had tried to contact her but had been unable to do so. The appellant replied that she had been relying on someone to help her with her immigration matter but this person had just not done the job. I gave the respondent the opportunity to ask the appellant questions and the appellant said in cross examination that she had not informed the court before the matter was dealt with on the papers at Taylor House because her command of English was not good enough to enable her to ask for this. She did not know that she had the right to ask for a Spanish language interpreter. She was living on her own and did not have many people to rely on. She did not realise she had the option to represent herself at the first hearing. Someone had helped her put in her application to appeal out of time.
13. In conclusion the Presenting Officer summarised the respondent’s case that the appellant had not explained why the judge should not have proceeded to deal with the matter on the papers. The appellant had still not produced evidence which addressed the problem identified by the respondent when refusing the appellant’s application. There was no error in the judge’s decision which should stand. In reply the appellant indicated she relied on what she had said previously. The difficulty arose from the error in the manager’s letter. She relied on the documentary evidence already submitted.
14. I indicated to the parties that if I found a material error of law in the First-tier decision I would go on to decide the case outright today as I did not consider it proportionate to the overriding objective to remit the matter for a further hearing in the event an error was found.
Discussion and Findings
15. The appellant had to show that she was resident in the United Kingdom before 31 December 2020. Her own assertion that this was indeed the case was unlikely to be accepted by the respondent unless she had some documentation to support what she was saying. The appellant’s case was that she had travelled to the United Kingdom at the end of 2019, had found work with an employer as a cleaner and had paid tax on her earnings. She had received a P60 from HMRC which should have been sufficient to succeed in her application for settled status.
16. Perhaps it might have been but the difficulty was that she included with the documents she sent to the respondent, a letter from her employer which confirmed the appellant’s employment but from 1 April 2021. This was too late to establish employment by the relevant date. The other documentation (from HMRC) did tend to show that she had been working at the relevant date. Understandably the respondent wanted to contact the appellant to clarify the situation and perhaps obtain some more information from the appellant which might clear up any doubt that had arisen. The respondent was unable to contact the appellant for whatever reason and the result was the matter was not cleared up. The case has had to go not only to the First-tier but also an onward appeal to the Upper Tribunal at some expense and inconvenience to the parties. That the appellant has not been able to establish her case at an earlier stage means that she is the author of her own misfortune.
17. Having said that, I must first consider whether there is an error of law in the decision of the First-tier Tribunal. Permission to appeal was granted in effect on three grounds. The first is that the P 60s from HMRC were either genuine or forged but no finding was made on that issue. I note that no one has suggested that they were forged and I accept that they were genuine. If they were genuine they tended to show that the appellant’s employment had started before the relevant date.
18. The second ground on which permission to appeal was granted was that if there was a suggestion that the HMRC documents were forged such an issue should not have been dealt with on the papers but adjourned into open court. As I have indicated already in this determination no one has suggested that the HMRC documents were forged and I do not think it is a valid criticism of the First-tier Tribunal that they proceeded to deal with this matter on the papers. That was the appellant’s request, the respondent had no objection to the matter being decided on the papers, this was a relatively straightforward matter and the judge was quite right to deal with the case on the papers.
19. The third ground is in my view a very important one. That concerns the employment start date given on the printout from HMRC which arguably was misunderstood by the First-tier. The printout indicates that the appellant had started work before the relevant date and thus could show that she was resident. That would mean she was entitled to succeed in her appeal. The P60 summary document gives the appellant’s tax code, 1250L and the HMRC reference for the employer meaning that the respondent could have checked the correctness of this document quite easily without the need to contact the appellant. What then of the letter from the employer dated 8 March 2024 giving a date that put the appellant outside the ambit of the EU SS regulations? The appellant says that there is a mistake on the letter but she does not produce another letter from the same employer to confirm that.
20. There is however one aspect of the employer’s letter which does assist the appellant. The letter indicates that the appellant’s salary from her work as a cleaner was £760 per month. The P60 for 5 April 2021, covering the relevant period, shows that she earned a total of £8640 during that tax year. If that latter figure is divided by 12 it produces a monthly salary of approximately £720 which is almost exactly what the letter says the appellant was earning each month. She must therefore have been working at the relevant date in order to have accrued the amount referred to on the P60 issued by HMRC.
21. Whilst I appreciate this point was not raise at first instance the parties were put on notice by the grant of permission by the Upper Tribunal that the employment documentation submitted by the appellant may have been misunderstood. The grant specifically refers to the HMRC printout which taken with the employer’s letter confirms that the appellant was working at the relevant time. I am therefore prepared to accept the appellant’s contention that there is an error in the employer’s letter which wrongly stated that the appellant began work in April 2021 and not April 2020 as it should have said (based on the HMRC documentation).
22. I therefore find that there was a material error of law in the decision at first instance such that it falls to be set aside because the employment documentation submitted by the appellant had not been properly considered. As I indicated in court it is not appropriate in a case of this kind to either remit back to the First-tier or indeed to postpone to another hearing date in the Upper Tribunal. I am satisfied that the appellant can show on the balance of probabilities that she was employed as a cleaner at the relevant date and was thus resident within the meaning required by the regulations. I therefore substitute a decision to allow the appellant’s appeal against the respondent’s decision refusing her application.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and I set it aside. I remake the decision in this case by allowing the appellant’s appeal.
Appellant’s appeal allowed

Signed this 4th day of March 2025

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge