Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-005905

First-tier Tribunal No: EA/02676/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

2nd June 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Gagandeep Sharma
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: No appearance by or on behalf of the appellant
For the Respondent: Ms S Simbhi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 30 May 2025
Decision and Reasons
The Absence of the Appellant
1. The appellant’s appeal before the First-tier Tribunal (“FtT”) was determined, at the appellant's request, on the papers. Following the grant of permission to appeal to the Upper Tribunal, the Upper Tribunal received a request from the appellant that the appeal to the Upper Tribunal be decided on the papers, without a hearing. The appellant’s request was considered and rejected by Upper Tribunal Judge Neville on 21 January 2025. He said that it is in the interests of justice for the appeal to be decided at a hearing where each party can make put forward their arguments as to whether or not the First-tier Tribunal’s decision contains an error of law. Judge Neville noted that a rule 24 response was due from the respondent and referred the appellant to Rule 25 of The Tribunal Procedure (Upper Tribunal) Rules 2008 that make provision for a reply from the appellant to the rule 24 response. Judge Neville made it clear in his order that if the appellant does not attend the hearing, then it will go ahead without him. The judge hearing the case will take into consideration whatever the appellant has said in any rule 25 reply, but the appellant will lose the chance to reply to whatever arguments may be made at the hearing on behalf of the respondent.
2. The respondent has filed a rule 24 response dated 2 April 2025. On 1 May 2025, the parties were informed that the hearing of this appeal will take place on 30 May 2025. On 22 May 2025, the appellant provided the Upper Tribunal with a ‘bundle’ comprising of 13 pages in readiness for the hearing of the appeal. Within that bundle there is a document which states “The appellant request (sic) the court to hear the appeal in his absence as it will not be possible for him to attend the hearing in person.” The appellant offers no reasons to explain why he is unable to attend the hearing.
3. The appeal was called on for hearing at 11:55am. There was no appearance by or on behalf of the appellant. I am satisfied that the appellant is aware of the hearing and that it is in the interests of justice and in accordance with the overriding objective for me to proceed with the hearing of the appeal in the absence of the appellant. For the avoidance of doubt, I have had regard to the documents set out in the bundle provided by the appellant including what is said in the document; ‘Preliminary Arguments Following Permission to Appeal Granted.’
The Background
4. The appellant is a national of India. His application to the respondent under the EU Settlement Scheme was refused by the respondent on 12 July 2023. The appellant’s appeal against that decision was dismissed by First-tier Traynor (“the judge”) for reasons set out in a decision promulgated on 20 November 2024.
5. The appellant claims the respondent had not challenged the validity of the marriage certificate provided by the appellant to establish that he is in a genuine and subsisting relationship with Viorica Dancs, a national of Romania. He claims the only issue raised by the respondent in refusing his application was that the appellant had not provided evidence to confirm that he was resident in the UK on the specified date (i.e 23:00 hrs on 31 December 2020).
6. The appellant claims that in dismissing the appeal, the judge relied upon a matter that had not been raised by the respondent and the appellant had no opportunity to address. Furthermore, the appellant claims that in considering the evidence relied upon by the appellant in support of his claim to have been resident in the UK on the specified date, the judge failed to have regard to, and make findings concerning the evidence regarding the appellant’s employment and the evidence in the appellant’s bank statements that demonstrate his presence in the UK.
7. Permission to appeal was granted by FtT Judge Dieu on 12 December 2024. Judge Dieu said:
“2. Ground 1 argues that the FTTJ materially erred by taking issue with a matter not previously raised by the Respondent. This ground is arguable. Whilst part of the context upon which the FTTJ made an assessment about the marriage was in relation to the reliability of the Appellant’s evidence to have not left the UK ever since his arrival in 2010 (para. 16), the FTTJ also criticises the absence of evidence of the ‘claimed relationship’. The Respondent had taken no prior issue about the fact of the relationship and so the Appellant has not been afforded a fair opportunity to address it.
3. Ground 2 argues that the FTTJ erred in the assessment of the evidence going to residence in the UK. This ground is also arguable. The FTTJ’s scrutiny of the bank statements appears to have missed out transactions that might have showed the Appellant to be in the UK in the 6 month period prior to 31st December 2020, for instance 11th September transaction at JD Sports, 14th September transaction at Tesco stores, 17th September transactions at Sainsbury S Mkts and McDonalds, 18th September Farmfoods. I make no comment on the strength or otherwise of those transactions as evidence towards residence in the UK but at the least the FTTJ had failed to give reason for why those transactions were not accepted to have been undertaken in the UK and by the Appellant.”
The Hearing of the Appeal before Me
8. As I have already set out, the appellant did not attend the hearing. In the written documents he has included in the bundle, it is said, in paragraph [2]; “The Appellant married his partner Viorica Danes, a Romanian national on 07 July 2019 and the marriage was registered on 01 November 2019 at the registrar office of marriages of S A S Nagar, District Mohali, India.” The appellant maintains he had sent the further information that had been requested by the respondent to the respondent and that the sole issue in the appeal before the FtT was whether the appellant was resident in the UK prior to the specified date. The appellant lists the evidence that was in the bundle before the FtT and submits the documents clearly indicate the appellant was residing and working in the UK before the specified date and he continues in this employment. The appellant claim he satisfies the requirements of Appendix EU of the immigration rules and that the respondent has had ample opportunity to verify the documents but chose not to investigate. The appellant maintains the respondent has not challenged the validity of the ‘marriage certificate’ or the genuineness of the appellant’s marriage and that the “Secretary of State decision is irrational and/or contrary to the Treaty Rights.”
9. On behalf of the respondent, Ms Simbhi adopts the rule 24 response that has been filed by the respondent. She submits the appellant has to show not only that he was in the UK but also the category under which the appellant claims to be in the UK. The appellant did not respondent to requests for evidence to support his claim and the focus of the respondent’s decision was therefore the absence of evidence to support the appellant’s claim that he was resident in the UK on the specified date as required. The respondent did not accept any of the eligibility requirements were met. The judge, as required and identified in the issues, considered whether the appellant meets the eligibility requirements for pre-settled status and gave adequate reasons for concluding the appellant does not meet the requirements. The judge was entitled to have regard to the evidence relied upon by the appellant, including the marriage certificate. The judge did not accept the appellant’s credibility and did not accept the documents to be credible. The judge was entitled to dismiss the appeal for the reasons set out in the decision of the FtT.
Decision
10. It is useful to begin by setting out the respondent’s reasons, as set out in her decision dated 12 July 2023 for refusing the appellant’s application. The respondent said that the appellant had not provided any evidence to confirm that he was resident in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e., 2300 GMT on 31 December 2020). He could not therefore meet the requirements for settled status on the basis of a continuous qualifying period of five years.
11. The respondent went on to consider whether the appellant nevertheless meets the eligibility requirements for pre-settled status under the EU Settlement Scheme. To that end, the respondent said the appellant does not meet the requirements for pre-settled status because he has not provided any evidence to confirm he was resident in the UK and Islands in the six months prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). The respondent went on to say:
“We attempted to contact you numerous times by email, telephone and text between 15 June 2023 and 4 July 2023 to ask for the evidence specified above, but this has not been provided.”
12. Importantly, the respondent concluded:
“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 eligibility requirements. (emphasis added)
Therefore, your application has been refused under rule EU6.”
13. The judge noted, at paragraph [3], correctly, that on his application the appellant claimed that he was in the UK before 31 December 2020, but did not have five years ‘continuous residence’. It is uncontroversial therefore that the appellant could not meet the requirements for settled status on the basis of a continuous qualifying period of five years.
14. It was for the appellant to therefore establish an entitlement to ‘pre-settled status’ under the EU Settlement Scheme as set out in Appendix EU. The respondent was not satisfied that the appellant was resident in the UK prior to the specified date. Although the respondent did not make any express reference to the marriage certificate and the anomalies in the appellant’s claim, contrary to what is said in the grounds of appeal and the written submissions made by the appellant, the issue in the appeal was not limited to whether the appellant was resident in the UK prior to the specified date. The respondent did not accept the appellant met any of the other eligibility requirements, one of which, under EU14 of Appendix EU, is that the appellant is a family member of a relevant EEA citizen. AT paragraph [8] of the decision, the judge properly recorded the issues in the appeal, one of which is whether the appellant meets the eligibility requirements for pre-settled status under Appendix EU14 of the Immigration Rules.
15. In considering the appeal, the judge had regard to the wide canvas of evidence before the Tribunal. The judge’s findings and conclusions are set out at paragraphs [12] to [22] of the decision. The judge recorded at [13], that the appellant acknowledges that the respondent did send emails to him requesting further evidence. The judge considered the appellant’s claim in the grounds of appeal before the FtT that he had submitted all the requested documents on the same day that emails were received by him. The judge noted, at [14], that despite the claim made by the appellant there is no evidence of any e-mail written by him to the respondent attaching the documents upon which he now relies. That, the judge found, was a critical omission and casts doubt upon the reliability and credibility of the appellant’s account.
16. In any event, the judge carefully considered the documents relied upon by the appellant. The judge noted the marriage certificate relied upon, indicates that the ‘place of marriage’ is ‘Shanti Kunj, Phase-07, Mohali’ and that the date of the marriage is said to be 7 July 2019. The marriage certificate states the ‘date on which application for registration made’ is 1 November 2019. The judge said:
“15. … I find there is no evidence whatsoever of the Appellant’s relationship with the person who he names as his spouse and notwithstanding the fact that he claims to have met her at some point in 2019 and that they married in July of that year after what he seems to have described as a very short courtship.
16 In addition, there is no evidence of the circumstances in which this marriage was arranged. There is no evidence of any wedding photographs or, fundamentally, a statement provided in support of his application from the person who he identifies as his spouse/family member. Moreover, I note the Appellant claims never to have left the United Kingdom since he first arrived in this country as a student in 2010. He supports that contention by claiming that the Respondent holds his passport which expired in December 2016. A copy of that document is contained in both parties’ bundles. He further contends that he has held no other passport prior to him being issued with a new passport in the United Kingdom on 31 May 2023. Whilst I note he claims never to have left the United Kingdom, he has not explained at any point how he was able to marry in India because the Marriage Certificate itself implies that both parties were present at the marriage in July 2019, at a time when the Appellant claims not to have been in possession of validly issued passport. I find this casts further doubt upon the reliability of his evidence.”
17. The judge went on to refer to the other evidence before the Tribunal regarding the appellant’s presence in the UK. The judge referred to the P60 documents, the letter from the appellant’s employer, payslips, ‘tenancy verification’ and the bank statements relied upon by the appellant. At paragraph [20], the judge said that having scrutinised the documents, the bank statements provide the Tribunal with no real evidence of the appellant’s presence in the UK either by way of withdrawing funds in person from his bank account or by any other transaction that establishes the appellant had to be present in the UK in order to make such a transaction. The judge referred to some of the transactions recorded on the bank statements and concluded that none of that evidence shows that the appellant was actually present in the United Kingdom. The appellant has not attended the hearing before me to elaborate and make any further submissions regarding this aspect of the decision. When permission to appeal was granted, FtT Judge Dieu referred to transactions on 11 September 2020 (JD Sports), 14 September 2020 (Sainsburys, and McDonalds) and 18 September 2020 (Farmfoods). Judge Dieu said that he made “no comment on the strength or otherwise of those transactions as evidence towards residence in the UK.” The written argument provided by the appellant simply states there has been at least 97 bank transactions made through his bank account and numerous direct debits for the disputed period. It is true to say that there are various ‘card payments’ during the relevant period that are capable of supporting the appellant’s case that he was present in the UK between July and December 2020, but the judge plainly had concerns regarding the credibility of the claims being made by the appellant. The judge was not assisted by the absence of the appellant, so there was no opportunity for the appellant to address any concerns the judge may have had about the transactions shown on the bank statements.
18. The judge found that what the appellant claims he has produced in support of his application was not submitted until he provided those documents in support of his appeal. The judge said there were considerable doubts regarding the reliability of the evidence submitted in support of the application. Any error by the judge in the analysis of the bank statements is immaterial to the outcome of the appeal. The judge was not satisfied that the appellant is married as claimed. He is therefore, on any view, unable to satisfy the eligibility requirements.
17 It follows that in my judgment there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
18 The appellant’s appeal to the Upper Tribunal is dismissed.
19 The decision of First-tier Tribunal Judge Traynor promulgated on 20 November 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 May 2025