Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
Case No: UI- 2024-005682
IMMIGRATION AND ASYLUM CHAMBER
First-tier Tribunal No: EU/55591/2023
LE/01661/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

Suleyman Erkal
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department (SSHD)
Respondent

Representation:
For the Appellant: Mr M Fazli of counsel.
For the Respondent: Mr Terell, Senior Presenting Officer (SPO)

Heard at Field House on 17 March 2025

DECISION AND REASONS
1. This is the appellant’s appeal against a decision of First-tier Tribunal Judge Scullion (“the judge”) dated 27 September 2024. The judge dismissed the appellant’s appeal against the respondent’s decision to refuse him pre settled status under the EUSS settlement Scheme, Appendix EU.
Background.
2. The appellant is from Turkey. The appellant applied on 9 June 2021 for leave to remain under Appendix EU. The respondent refused the application in a decision dated 16 September 2023. The respondent made a number of concessions in the respondent’s review. It was accepted that the appellant had been married to an EU citizen for more than 3 years and that they had lived in the UK for more than 1 year.
3. It was conceded before the judge that the appellant could not satisfy the requirements for settled status under paragraph EU11. It was agreed before the Judge that the only remaining issue was the appellant’s residence between August 2019 and December 2020.
4. I should note that the respondent’s review conceded that the appellant was resident between April and July 2019 and between January 2021 and June 2021.
Grounds of appeal.
5. There are in essence 3 grounds of appeal. The grounds assert that the judge failed to make adequate findings regarding the appellant’s residence in the period between August 2019 and December 2020. Ground 2 asserts that the judge failed to provide adequate reasons or engage with the evidence. Ground 3 asserts that there was procedural unfairness in that it was not put to the appellant that the letters and documents did not demonstrate his residency.
Permission to appeal
6. Permission to appeal was granted by Upper Tribunal Judge Kebede on 13 January 2025. Judge Kebede considered that it was arguable that the judge had failed to focus upon the relevant period of the appellant’s residence immediately prior to 11pm on 31 December 2020 and in the period thereafter up until the date of his application. The grant of permission was not limited in scope though, and so all grounds could be argued.
Submissions
7. Mr Terell made brief submissions confirming the respondent’s position that there was a material error of law as identified in ground 1.
Analysis and Conclusions.
8. In a rule 24 response dated 13 March, Mr Terell accepted that there was a material error of law in the judge’s decision as identified in ground 1 of the appeal grounds. I explored at the hearing the judge’s finding at [25] in respect of the documents which the appellant had produced for the period August 2019 to December 2019 and documents produced for the year 2020. Mr Terell stated he had considered carefully the finding at [25] but the judge had referred to “the relevant months” in that paragraph and the paragraph after [26]. Mr Terell stated that the judge had defined the relevant months at [20] as April 2020, May 2020, July 2020, September 2020 and December 2020. Mr Terell stated that the finding did not preclude that the appellant was present in October and November 2020 and up until his date of application. He stated that this period could fall within the definition of a continuous qualifying period as defined in Annex 1.
9. The judge set out the relevant part of the definition of a “continuous qualifying period of residence” at [14] but concentrated on what the judge referred to as “the relevant months”. Having considered the rule 24 response and the submissions made, I concluded that the concession was properly made by Mr Terell. I am satisfied that the decision of the First-tier Tribunal involved the making of a material error of law and the decision cannot stand.
10. In light of this conclusion, I have decided it was not necessary to address the other grounds.
11. I have considered whether to retain the appeal in the Upper Tribunal or remit the appeal for a rehearing of the appeal in line with the case of AEB (AEB v SSHD [2022] EWCA Civ 1512) and the Practice directions. The appellant has provided further documentary evidence which he wishes to reply upon. There will need to be a consideration of his oral evidence and explanations regarding that evidence and findings made. The whole of the disputed period from August 2019 until 31 December 2020 will need to be considered and conclusions reached as to the appellant’s residence. In light of the necessary findings of fact which need to be made and having regard to the overriding objective, I have decided to remit the appeal to be heard a fresh with no findings preserved.

Notice of Decision
The appeal to the Upper Tribunal is allowed.
The decision of the First-tier Tribunal involved the making of a material error on a point of law and is set aside with no findings preserved.
The remaking of the decision is remitted to the First-tier Tribunal to be heard afresh by any judge other than Judge Scullion.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 April 2025