Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005859
First-tier Tribunal No: EU/55500/2023
LE/00497/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

ERVI HENAJ
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M West, Counsel, instructed by Vanguard Solicitors
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 28 August 2025

DECISION AND REASONS

1. In a decision promulgated on 03 July 2025, an error of law was found in the decision of First-tier Tribunal Judge Kinch, promulgated on 05 November 2024, which had allowed the Appellant’s appeal against the Respondent’s refusal of his application for a residence card. A copy of that decision is annexed and is not repeated here. The present decision concerns the re-making of the appeal.
2. Judge Kinch’s decision was set aside, save for the finding that the Appellant’s application of 31 December 2020 was made under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”) and not under the EU Settlement Scheme (“EUSS”).
Background

3. The Appellant is a citizen of Albania born on 20 March 1992. He entered the United Kingdom in July 2014 and states that he has been in a relationship with his partner, Ms Cristina Ardelean (“the Sponsor”), since 2016. The Sponsor is a Romanian national who resides and works in the UK.

4. On 31 December 2020, the Appellant submitted an application to the Respondent based on his durable relationship with the Sponsor. The Respondent treated the application as one made under the EUSS and refused it on 13 September 2023. The Respondent found that, as the Appellant had not been issued with a relevant document confirming his status as a durable partner, it was not possible to grant him leave under the EUSS. The Respondent further concluded that, by 31 December 2020, the Appellant had not demonstrated that he had been living with the Sponsor in a relationship akin to marriage for at least two years.

5. The Appellant accepts that, as he neither holds a relevant document nor is married to the Sponsor, he cannot meet the requirements of the EUSS. He maintains, however, and it is not disputed, that his application was in fact made under the EEA Regulations 2016. He contends that he was in a durable relationship with a relevant EEA national at the date of application and argues that the Respondent’s refusal breaches his rights under the Withdrawal Agreement, as his residence was being facilitated prior to 31 December 2020.
Legal framework
6. The burden of proof is on the Appellant to prove the facts he alleges and the standard is the balance of probabilities.
7. Regulation 8 of the EEA Regulations 2016 defines an extended family member as meaning:
8.—(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (1A), (2), (3), (4) or (5).
… (5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and in a durable relationship with, an EEA national or the child (under the age of 18) of that partner, and is able to prove this to the decision maker.
8. A durable relationship does not need to be for a minimum duration of 2 years: see YB (EEA reg 17(4) – proper approach) Ivory Coast [2008] UKAIT 00062.
9. Article 10(3) of the Withdrawal Agreement states as follows:
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.
The Hearing
10. The Appellant and Sponsor both attended the hearing and gave oral evidence.
11. We had before us a 238-page Composite Bundle [CB]. This included at Part B the following supplementary evidence post-dating the decision of Judge Kinch:
(a) A supplementary letter from the couple’s landlord, Mr Leonardo Rama
(b) A supplementary letter from the couple’s neighbour, Ms Mary Walsh
(c) A letter and patient report from the Hakim Dental Surgery relating to the Appellant
(d) Thames Water bills
12. It was agreed between the parties that the sole issue in dispute is whether, at the date of application, the Appellant was in a durable relationship with the Sponsor. It is further accepted that, if this is established, the Appellant falls within the scope of Article 10(3) of the Withdrawal Agreement.
13. The oral evidence and submissions are a matter of record. The main points arising were as follows:
The witness evidence
Oral evidence – the Appellant
14. The Appellant adopted his witness statement dated 15 May 2024.
15. The Appellant confirmed that supporting statements had been provided by the Sponsor’s sister and brother-in-law. They were unable to attend the hearing because of work commitments. The Sponsor had spoken with them, but they explained that staffing shortages prevented them from taking time off. Evidence was also submitted from the couple’s landlord, Mr Rama, in the form of two letters. The Appellant stated that he had asked the landlord to attend the hearing, but he too was unable to attend due to work commitments. Instead, he indicated a willingness to be contacted by telephone or email. In addition, two letters from their neighbour, Ms Walsh, were produced. The Appellant explained that Ms Walsh had offered to attend if required, but as she is elderly they did not wish to subject her to the prospect of waiting for several hours at court, and therefore did not press her to attend.
16. In cross-examination, the Appellant clarified that although his witness statement recorded that he and the Sponsor moved into their current address on 21 February 2017, in fact the Sponsor had moved in in 2016, with the Appellant joining her in February 2017. Prior to this, the Appellant had resided in Ruislip while the Sponsor lived in Bethnal Green. When questioned about tenancy agreements for 2018 and 2019, the Appellant explained that they received only what the landlord provided. Confronted with irregularities in those documents, including that two agreements were drafted under Northern Irish law and therefore unenforceable, the Appellant said this was an error by the landlord which he had not noticed, as he simply signed what was given to him. He described his contact with the landlord as usually by telephone, though the landlord occasionally visits the property. The landlord, who divides his time between the UK and Spain, is sometimes represented by a friend named Luvia. No letter was obtained from Luvia, as the Appellant had not thought to request one.
17. As to the undated photographs in the bundle, the Appellant identified them as taken at his 25th or 26th birthday, approximately seven years ago. The photographs included the Sponsor’s sister and his cousin, and were taken both in his own room and in a friend’s room within the same house. The Appellant confirmed he no longer has a Facebook account, and that the photographs were retrieved from the Sponsor’s profile. Regarding a water bill dated 14 December 2020, which listed both him and the Sponsor as account holders, the Appellant explained that this arrangement was made through the landlord in order to provide proof of cohabitation for his visa application. He said that, as the property is a shared house with rent inclusive of utilities, he previously had no bills in his own name. With reference to the letter from their neighbour, Mary Walsh, the Appellant stated that they had known her since moving into the property.
18. In re-examination, the Appellant reiterated that he and the Sponsor had always paid rent inclusive of utilities, with the landlord covering water, electricity, and other bills for the shared house. They rented a single room with shared kitchen and bathroom facilities, and other residents also had utilities included in their rent. In 2020, however, he asked the landlord to place the water bill in both his and the Sponsor’s names, as they required additional proof of living together. Previously the account had been in the landlord’s name. From that point, although the water bill covered the entire building, the Appellant explained that the Sponsor paid the water charge directly, and then deducted this from their rent, while the other tenants continued to pay rent inclusive of utilities.
Oral evidence – the Sponsor
19. In examination-in-chief, the Sponsor adopted her witness statement dated 15 May 2024. She explained that the water bill for the property she shares with the Appellant is in her name, paid monthly by card, and that she has been paying it in this way for many years. She clarified that after she makes payment, the landlord deducts the bill from the rent. She confirmed that in April 2025 the landlord paid the bill directly, but in all other months she has made the payments herself.
20. With respect to witnesses, the Sponsor stated that her sister was unable to attend because she works in sports betting and was covering staff absences, while her brother-in-law, who is a road worker, also remained at work. Although she had asked them both to attend, they were unable to do so. Their neighbour, Ms Walsh, had been invited but, being elderly, provided only letters of support. The landlord, Mr Rama, was unavailable as he was in Spain.
21. Turning to her residence history, the Sponsor explained that she had been living in Bethnal Green before moving into the current address in August 2016, with the Appellant joining her in 2017. She confirmed that employment documents exist in her name at the address from 2016, and that tenancy contracts were signed in February 2017. She could not clearly recall whether she had signed an agreement covering the earlier period but thought it possible.
22. In cross-examination, the Sponsor stated that no statements or letters were obtained from other residents of the shared house because she did not realise such evidence would be required. When asked why her witness statement did not mention moving into the property in August 2016, she replied that she did not know. On the subject of utility bills, she clarified that the EE internet account in her name arose because the landlord had arranged internet for the house and asked her to put the account in her name. She explained that the first provider, TalkTalk, failed to supply a signal, and the service was quickly replaced by another company. Finally, when it was put to her that there were no recent social media posts provided despite her having a Facebook account, the Sponsor said that she and the Appellant do not make significant use of social media.
Closing submissions
23. On behalf of the Respondent, Mr Hulme invited the Tribunal to dismiss the appeal on the basis that the Appellant had failed to demonstrate a durable relationship as at 2020. He highlighted multiple inconsistencies, particularly in the timeline around tenancy agreements. The Appellant’s witness statement says they moved in together in 2017, yet the Sponsor, for the first time in oral evidence, claimed she moved in during 2016, with no explanation for the omission in her statement and no tenancy agreement to support this. The landlord’s two letters make no mention of differing move-in dates. On the bills provided, he argued they were unreliable under Tanveer Ahmed, since the landlord appeared willing to add names to bills upon request, undermining their evidential value. Statements and letters from family, including the Sponsor’s sister and brother-in-law, lacked identification and none of the authors attended. The photographic evidence was very limited, with dated images only from 2019. He also pointed out gaps in tenancy agreements for 2018 and 2019, and the unusual situation of two agreements dated within days of each other, some being drafted under Northern Irish law and therefore questionable. Overall, he submitted that, given the length of the claimed relationship, the documentary evidence was minimal and insufficient to establish durability as alleged.
24. On behalf of the Appellant, Mr West invited the Tribunal to find that the Appellant and Sponsor were in a durable relationship at the relevant date. He accepted that the evidence was at times difficult and imperfect, but argued that when viewed as a whole it met the required standard of being more likely than not, stressing that perfection is not required. He submitted that both the Appellant and Sponsor had given credible accounts, consistent with updated statements, showing that they began living together at the end of January or early February 2017 and had remained so since. While the Sponsor should have mentioned living briefly at the address beforehand, and the tenancy agreements were poorly drafted and likely unenforceable, what mattered was that the couple understood themselves to be tenants. The landlord’s updated letter at CB 24 acknowledged his relaxed approach to documentation, reflecting that shortcomings lay with him rather than the couple. Given that both are non-British nationals with English as a second language, Mr West argued it was unsurprising they did not fully grasp the technicalities of the contracts, but the evidence showed they believed they had a contractual relationship.
25. Mr West submitted that supporting letters, including those from the landlord and neighbour Ms Walsh, provided useful corroboration. Though loosely worded at first, later clarifications gave more detail about how long and how closely they had known the couple, supported by ID and evidence of proximity of residence. Additional documents, such as dental surgery records from 2020 and Thames Water bills naming the Appellant as an account holder, demonstrated his address history and efforts to gather evidence at the time of his application in December 2020. Mr West emphasised the Appellant’s difficulties in producing evidence due to having no right to work or lawful status, and explained that any confusion over water bill payments reflected the landlord’s relaxed practices. The Sponsor’s presence at the address from 2016 was clear, and on the balance of probabilities he invited us to find that the Appellant lived there with her. He noted that this application had been ongoing for many years, with both the Appellant and Sponsor consistently appearing to give evidence, supported by reasonable explanations for the absence of other witnesses who were tied up with work or abroad. Overall, he argued that the evidence, though not flawless, was sufficient to establish a durable relationship as claimed. He invited us to accept the credibility of the witnesses, and to allow the appeal.
Findings and reasons
26. We have considered with care all the oral and documentary evidence, together with the submissions made on behalf of both parties, even where not expressly referred to in this decision. Having assessed the evidence in the round, we are satisfied, on the balance of probabilities, that the Appellant has established that he was in a durable relationship with the Sponsor at the date of his application. Our reasons are set out below.
27. We had the benefit of hearing the Appellant and Sponsor give evidence. Although their account was tested in detail by Mr Hulme in cross-examination, it remained broadly consistent and was supported by documentary evidence. We note the omission in the Sponsor’s witness statement of her moving into her current address a few months before the Appellant, but this is addressed by other evidence. In particular, HSBC bank statements addressed to her at the property from 27 August 2016 to 11 January 2017, together with a TalkTalk contract dated 15 August 2016, corroborate her oral evidence that she has resided there since mid-2016. These documents, alongside subsequent bank correspondence, payslips, and utility records addressed to her at the same property over a sustained period, satisfy us, to the requisite standard, that the Sponsor has lived continuously at the address since August 2016.
28. The Appellant claims to have joined the Sponsor at the property in February 2017. We had concerns about the tenancy agreements submitted by the Appellant, particularly the irregularity of two being drafted under Northern Irish law and the presence of overlapping contracts. However, we accept Mr West’s submission that, as non-British nationals with limited English and little familiarity with legal formalities, it is unsurprising that the Appellant and Sponsor did not fully appreciate the implications of these errors. The landlord’s updated letter at CB 24 acknowledges his “relaxed” approach to paperwork and accepts that there may have been overlaps, but he states unequivocally that the couple have resided at the property as tenants and as a couple since 2017. Although he did not attend the hearing, he is named on the tenancy agreements and has provided photographic identification. His written evidence is consistent with the oral accounts of both witnesses, including their explanation that he divides his time between the UK and Spain and sometimes relies on others to manage the property. We therefore attach some weight to his evidence in corroborating the Appellant’s claim of cohabitation since 2017, noting that he appears to have no motive to misrepresent the couple’s circumstances and has supported his statement with identification.
29. We also take account of the wider context in which the Appellant’s evidence must be assessed. As an individual who entered and remained in the UK unlawfully, the Appellant inevitably faced significant obstacles in generating documentation in his own name. Without the right to work, he was unable to obtain lawful employment, register with a GP, or open a bank account. In addition, the couple occupied a single room in a shared property where utilities were included in the rent, further limiting opportunities for his name to appear on household bills. These circumstances provide a cogent explanation for the relative scarcity of documentary evidence directly in the Appellant’s name.
30. Despite these limitations, there is evidence of Thames Water bills addressed to the Sponsor from December 2020 which also name the Appellant as a joint account holder. We note that the first such bill predates the application of 31 December 2020 by only a few weeks. Both the Appellant and the Sponsor, however, gave candid and consistent accounts that in 2020 they asked the landlord to arrange for their names to appear on the account in order to evidence their cohabitation for the purpose of the application. In our judgment, the timing does not undermine the Appellant’s case. On the contrary, it demonstrates that the couple took deliberate and proactive steps to obtain official documentation of their cohabitation because they understood it would be required for immigration purposes. This reflects both awareness of the evidential requirements and commitment to establishing their durable partnership. We are not persuaded by Mr Hulme’s submission that the timing diminishes the reliability of the documents. We accept the explanation that the Sponsor paid the bills directly, with the sums later deducted from their rent, and we do not consider the landlord’s willingness to accommodate their request to reduce the probative value of either his evidence or the bills themselves.
31. Photographs were also submitted in evidence. The Appellant identified some images as taken at his 25th or 26th birthday, so some 7 or 8 years ago, depicting him with the Sponsor, her sister, and his cousin. One of those, which was of particular significance is a photograph at CB 197, in which the Sponsor is clearly shown with a tattoo of the Appellant’s name on her left forearm. This constitutes an unusual and enduring demonstration of commitment, lending weight to the contention that the relationship was genuine and committed rather than casual in nature.
32. We have also considered the evidence of the couple’s neighbour, Ms Walsh. Although she did not attend the hearing, she provided two letters supported by a copy of her identification. In her most recent letter, she confirms that she has known the Appellant and the Sponsor for nearly nine years, describes them as close friends, and refers to them as a couple who regularly visit her for coffee and conversation. While the absence of oral testimony limits the weight we can attach to this evidence, the explanation for her non-attendance is plausible, the length of acquaintance significant, and the content corroborative of other evidence before us. In those circumstances, we are prepared to attach some weight to her letters.
33. We further note that this application has been ongoing for several years, during which both the Appellant and the Sponsor have consistently attended hearings, given evidence, and provided updated material while maintaining a consistent account. Such sustained participation is more consistent with a genuine relationship than with fabrication.
34. Looking at the evidence as a whole, while it is not without shortcomings, we are satisfied that the Appellant has discharged the burden of proof. The convergence of multiple, independent sources of evidence, including bank records, utility bills, corroborative statements from the landlord and neighbour, photographs, and consistent oral evidence from the Appellant and Sponsor, creates a coherent and compelling picture of cohabitation and partnership. Taken together, this is sufficient to establish that the couple were in a durable relationship at the date of application, as claimed.
35. We therefore find that, as at 31 December 2020, the Appellant and the Sponsor were living together in a relationship akin to marriage. In line with Regulation 8 of the 2016 Regulations, the Appellant has demonstrated that he was in a durable relationship with the Sponsor. By applying for facilitation prior to the end of the transition period, he falls within the scope of Article 10(3) of the Withdrawal Agreement. The appeal is therefore allowed to that extent.
Notice of Decision
For the reasons set out in the decision annexed, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such, it was necessary to set aside the decision.
The appeal is remade as follows:
The appeal is allowed.

S. Anzani
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 September 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005859
First-tier Tribunal No: EU/55500/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
03.07.25

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ERVI HENAJ
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr B Hulme, Senior Presenting Officer
For the Respondent: Mr M West, Counsel, instructed by Vanguard Solicitors

Heard at Field House on 22 May 2025

DECISION AND REASONS
Introduction
1. The Secretary of State appeals a decision of the First-tier Tribunal allowing Mr Henaj’s appeal. The decision of First-tier Tribunal Judge Kinch was sent to the parties on 5 November 2024.
Relevant Facts
2. Mr Henaj states that he arrived in the United Kingdom in July 2014 and has been in a relationship with Ms Ardelean, a Romanian national, since 2016. He submitted an application to the Secretary of State on 31 December 2020. The Secretary of State considered the application to have been made under the EU Settlement Scheme and refused it by a decision dated 13 September 2023.
Decision of the First-tier Tribunal
3. The appeal came before the Judge sitting at Hatton Cross on 16 September 2024. The Judge concluded that Mr Henaj applied for a residence card under the Immigration (European Economic Area) Regulations 2016 and not leave to remain under the EUSS as contended by the Secretary of State, at [15]-[22].
4. The Judge concluded that consequent to the outstanding application under the 2016 Regulations Mr Henaj’s appeal was allowed, “albeit to the limited extent that the [Secretary of State’s] refusal was not in accordance with the Withdrawal Agreement, under Regulation 8(2)(a) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020”, at [23].
5. Additionally, the Judge found that Mr Henaj was not in a durable relationship with Ms Ardelean, at [24]-[39].
Grounds of Appeal
6. By a decision dated 17 December 2024, First-tier Tribunal Judge Grant-Hutchison granted the Secretary of State permission to appeal on two grounds:
i. The Judge did not have jurisdiction under regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 to remit the matter back to the Secretary of State for consideration.
ii. Having found that Mr Henaj was not in a durable relationship at the date of decision, there was no lawful foundation for the conclusion that he fell within the scope of the Withdrawal Agreement.
Rule 24 Response
7. Mr Henaj’s rule 24 response was authored by Mr West and dated 20 January 2025. The following was accepted:
i. The Judge erred in finding that in order for Article 10(3) of the Withdrawal Agreement ‘to bite’, there was no requirement that there be a finding as to durability of the relationship.
ii. In order for Mr Henaj to come within point (b) of Article 3(2) of the Citizens’ Directive, he would need to be ‘the partner with whom the Union citizen has a durable relationship, duly attested’.
8. To this extent the Secretary of State’s appeal was accepted.
9. Observing Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 00216, [2019] Imm AR 1325, Mr Henaj relied upon rule 24(3)(e) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to advance a ground on which he was unsuccessful before the First-tier Tribunal:
i. The Judge’s findings as to durability at [24]-[39] are materially erroneous in law
10. Mr Henaj continued to rely upon the Judge’s reasoning insofar as his application was made under the 2016 Regulations and not under the EUSS. This reasoning is not subject to the Secretary of State’s appeal.
Discussion
11. At the outset of the hearing the representatives informed the panel: (1) Mr Henaj accepted the errors of law identified in his rule 24 response and accepted that they were material, and (2) the Secretary of State accepted some, though not all, of the issues raised by Mr Henaj in his rule 24 response and consequently accepted that no findings of fact at [24]-[39] could properly be preserved.
12. We agree with the approach adopted by the representatives. Having considered the decision of the First-tier Tribunal with care, the appropriate course is to set it aside for material error of law, save for the unchallenged finding that the original application was made under the 2016 Regulations and not the EUSS.
Resumed Hearing
13. We observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). This matter can properly be remade by the Upper Tribunal sitting at Field House.
Notice of Decision
14. The decision of the First-tier Tribunal sent to the parties on 5 November 2024 is subject to material error of law and is set aside, save for the finding that Mr Henaj’s application of 31 December 2020 was made under the Immigration (European Economic Area) Regulations 2016, at [15]-[22].
15. The resumed hearing will take place in the Upper Tribunal.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 June 2025