Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005932

First-tier Tribunal No: EU/56218/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th June 2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

VALDIRENE RODRIGUES BERNADINO
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: In Person
For the Respondent: Mr Ojo – Senior Presenting Officer

Heard at Field House on 16 May 2025

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of Brazil who had applied for a leave to remain on the 7th July 2023 as a spouse of a relevant sponsor, Sergio Ricardo Saad under Appendix EU of the Immigration Rules. The application was refused on 9th October 2023 as there was no record that the sponsor could be considered as “a relevant sponsor” as required by the definition under Annex 1 of Appendix EU. More specifically there was no evidence that the sponsor was an EEA national before acquiring British citizenship through naturalisation on the 4th April 2012. Her appeal was dismissed by the First-tier Tribunal Judge (“the Judge”) in a decision dated 23rd October 2024 following a hearing on the same day. Permission to appeal was sought by the Appellant and granted by Upper Tribunal Judge Owens in a decision dated 18th March 2025.
The First-tier Tribunal Judge's Decision
2. On the day of the First-tier hearing the Appellant did not attend and the Judge recorded at [5]-[6] that the appeal had originally been listed as a paper case. However, on 27th June 2024, a different Judge who was assigned the case directed that it ought to be listed for an oral hearing given the Appellant's indication on the papers was that she had been disadvantaged by legal representatives in addition to her failure to upload any witness statements. Detailed directions were given and two notices of hearing were sent out on 27th June 2024 and 2nd October 2024.
3. The Judge’s decision records at [6], “The case was listed for 10am as a float today. The Appellant failed to attend”. The Judge therefore confirmed that he proceeded with the case at 2:30pm, setting out “I noted that the clerk had tried to ring the Appellant on a number of occasions today, but I had received no reply. I determined that the Appellant had been given adequate notice of the oral hearing, and in absence of any representations from her, found it to be in the interest of justice to continue with the appeal today.”
4. In his decision, the Judge went on to make detailed findings, noting at [8] that in order to rely on her husband as a sponsor, he would have to come within the definition of a relevant sponsor and qualified British citizen as set out in the EUSS rules. Further citing at [9] the definition in Annex 1 of an Appellant, who may have married after the specified date, such that they would have to meet the definition of a “durable partner”. At [10] the Judge noted the onus on the Appellant to prove on a balance of probabilities that she could come within the rules and that there was no evidence that the sponsor was a “qualified British citizen” or that the Appellant held “relevant documents.” At [11-12] the Judge noted the relevant law and at [13] concluded that whilst her husband was a naturalised British citizen, she had failed to demonstrate this by way of any evidence. Further that “In her application the Appellant states she is dependent of the sponsor, whose country of nationality is Ireland. She also states that they are a person on Northern Ireland. This assertion is not backed up by any evidence of the sponsor's domicile (and right to permanent residence), in an EEA state which is required in order for him to be a in order for him to be a qualifying British citizen. Alternatively, she provides no evidence that he was an EEA's passport holder prior to his naturalisation.” It is on this basis that the Judge dismissed the appeal.
The Appellant’s appeal to the Upper Tribunal
5. The Appellant remains unrepresented and there appear to be three grounds of appeal outlined by her in the relevant appeal forms. First that there was a failure to consider procedural irregularities in notifications, that is the Judge acknowledged a technical issue with the myHMCTS platform, which had prevented a formal and separate notice of the hearing date being sent to the Appellant. Although alternative directions had been issued, the reliance on multiple informal communications caused confusion, which the Appellant stated had contributed to her failure to attend the hearing on 23rd October 2024. Accordingly, it was submitted that the Tribunal failed to consider whether this procedural irregularity disproportionately disadvantaged her thereby breaching the principles of fairness enshrined in the Tribunal Procedure Rules 2014.
6. Second, it was submitted that there was evidence suggesting she had attended the hearing centre on 24th October 2024, albeit erroneously. The Tribunal dismissed this without adequately addressing the credibility of the evidence, which undermined the fairness of the decision making process.
7. Thirdly, she was prejudiced due to lack of representation and it was submitted that as an unrepresented Appellant, she struggled to navigate procedural requirements such as confirming attendance and filing witness statements, and the Tribunal failed to account for her vulnerability as a litigating person contrary to its obligations to ensure access to justice.
8. The Appellant therefore sought reconsideration of her appeal on the procedural irregularities and oversight described and an opportunity to present evidence and arguments to support her application for status under Appendix EU to the Immigration Rules. There was a further reference to Article 8 of the ECHR.
9. The First-tier Tribunal refused permission, but on renewal permission was granted by the Upper Tribunal on the basis that it was arguable that it was procedurally unfair for the Judge to hear the appeal in the absence of the Appellant when a formal notice of hearing had not been sent to the parties.
The Hearing
10. We had before us the composite bundle of 234 pages. At the outset Mr Ojo, confirmed that there was no Rule 24 response however that he was defending the decision of the First-tier Judge.
11. The Appellant was assisted at the hearing by an independent Portuguese interpreter provided by the Tribunal. The Appellant she confirmed she understood the interpreter and we were satisfied that no interpretation difficulties arose during the course of the proceeding. We provided the Appellant with a copy of the directions previously issued by the First-tier Tribunal when her case was converted from a paper to an oral hearing. We comprehensively explained to the Appellant, the role of the Tribunal in these proceedings and took time to explain to her the issues being considered by us and that we could only interfere with the decision of the Judge if he had made a material legal error. The Appellant was then given the opportunity to outline why the decision to proceed was unfair and respond to Mr Ojo’s submissions, which we also summarised for her.
Submissions
12. The Appellant’s explanation for not attending the hearing was that the date had been recorded wrongly in her husband’s calendar and her husband attended the tribunal on the next day instead. Further, the Appellant submitted that she wanted another opportunity for her visa to be considered but also stated that and it was unjust for the Judge to continue without her as she had not received proper notification. She further submitted she wanted to work and explained she had a daughter who was at college.
13. Mr Ojo’s submissions were that firstly, the Appellant had been notified of the date through the directions made. Therefore, there was no reason to make any further efforts to inform the Appellant. Secondly, the Appellant had been given a fair opportunity to provide information in the appeal on 23rd October 2024. This was especially as the Appellant had at the outset of the appeal process requested that her appeal be dealt with on the papers and the Judge had then converted this into an oral hearing thereby providing her a further opportunity to present her case. And thirdly, the Tribunal had attempted to contact her on many occasions on 23rd October, and the matter was then heard at 2:30pm. Mr Ojo submitted that the rules that regulated matters in the Tribunal had been fairly applied. The fourth point was that the Judge looked at the documents from both sides and noted a lack of documents from the Appellant's side and gave reasons why he went ahead without the Appellant being present.
14. The Appellant in response stated that the notification for this hearing in the Upper Tribunal had been received via letter, in contrast with the First-tier Tribunal. Further, that she and her husband had provided all relevant documents and questioned the reasons why the Judge had found no documents had been submitted. She states she had received no calls from the Tribunal on the day of the hearing and at 3pm, she received an email notification (notifying her of the decision to dismiss her appeal) and she realised her mistake, namely that the hearing was on 23rd October 2024 and not 24th October 2024.
15. We gave the Appellant permission to locate the email she referred to with no objections from Mr Ojo. The email notification she located was one sent by the First-tier Tribunal on 23rd October 2024 at 14:47 informing her that the appeal decision had been uploaded and the appeal was dismissed. During the hearing we also sought to check the mobile number recorded for the Appellant on the Tribunal’s online portal and the Appellant confirmed that this was correctly recorded.
16. We have considered the totality of the evidence presented which includes the evidence and grounds submitted by the Appellant as well as oral submissions which we consider at length below. At the end of the hearing, we reserved our decision which we now set out below.
Analysis and conclusions
17. Drawing all these matters together, we remind ourselves of the need to exercise appropriate judicial restraint before concluding that there has been a material error in the Judge's decision.
18. In respect of the first ground we take into account that the Tribunal had the correct mobile number recorded for the Appellant on the MyHMCTS platform and that she had been receiving notification emails from the Tribunal as shown by the email informing her of the dismissed appeal.
19. Whilst we note that an error had been recorded with the platform, such that a formal notice of hearing could not be sent to the parties, we consider the records also show that on 2nd October 2024, a legal officer sent out directions confirming a face-to-face hearing at Hatton Cross at 10am on 23rd October 2024. There is also the separate directions made by Judge Verghis when she converted the matter from paper hearing to an oral hearing on 27th June 2024. Those directions are summarised at [5] and included that the matter was listed for a face to face hearing at Hatton Cross Tribunal Centre fixed for 23rd October 2024 at 10am.
20. We are satisfied therefore that the Appellant had sufficient notice of the hearing date before the First-tier Tribunal. Also we note from the submissions before us that she confirmed receiving the date of hearing but that her husband in booking the date off, on 24th October 2024, had made the error. It is clear that on their own evidence that they were aware of the relevant date. Whilst the Appellant’s and her husband’s mistake is unfortunate, we are unable to find that there was procedural unfairness. This is notwithstanding any issue with the myHMCTS platform, which prevented a formal notice of hearing date from being sent to the parties because we are satisfied, for the reasons above, that the Appellant was able to access the directions that were issued to her.
21. The Appellant’s second ground outlines inadequate consideration of evidence supporting her attendance on 24th October 2024. As outlined above, the hearing had concluded on 23rd October 2024, and the decision was sent out promptly on the same day, which the Judge was entitled to do. Accordingly, the Appellant's attendance on 24th October 2024 is unfortunate but not a relevant matter, particularly in light of the matters we have considered above under the Appellant’s first ground.
22. In relation to the assertion that the Judge did not address the credibility of the Appellant, we note Judge Verghis directions substantively set out the case to be answered, that is whether or not the sponsor was someone who was a relevant EEA national prior to his naturalisation such that he fell within the definition of “a relevant sponsor”. The Judge set out in his decision the failure of the Appellant to address this key issue by way of any evidence. The Respondent’s bundle contained the only evidence before the Judge and this included the Appellant's Brazilian passport and a photograph of herself.
23. We note there has been further evidence submitted by the Appellant on 24th December 2024, which post-dates the First-tier Tribunal hearing and this includes:
• Contract of employment for the sponsor
• Payslips relevant to the sponsor's employment, tenancy contract
• Contract of employment for the sponsor
• Certificate of marriage.
• Sponsor’s British passport issued 5th February 2022.
24. Even if these documents had been before the Judge, they do not address the core issue in this case of the sponsor's status and nationality prior to being naturalised as a British citizen and whether this brings him in scope of the EUSS rules.
25. In all circumstances, the Appellant has failed to demonstrate that there was any failure by the Judge in considering her case, especially given the previous directions outlining the requirements for the Appellant to upload some form of evidence or attend a hearing to defend her appeal.
26. In relation to the Appellant's assertion that as a litigant in person, they were vulnerable and struggled to navigate procedural requirements such as confirming attendance and filing witness statements, we note that First-tier Tribunal in the directions issued on 27th June 2024 specifically set out that the Appellant’s appeal grounds had outlined that she had been “disadvantaged by legal representatives who had ceased to act. The Appellant had filed a number of documents and photographs, but no statements of evidence from herself or her partner, the sponsor.” This led to the hearing being converted from a consideration on the papers to an oral hearing, specifically to give the Appellant an opportunity to put her case. We cannot identify any procedural irregularity that has meant that as an unrepresented individual, the Appellant has been prejudiced.
27. We are satisfied that given the checks undertaken by the Judge, the previous directions made which the Appellant confirmed she had received and there being no evidence before the Judge on the day of the hearing either going to the substantive issues or informing him of any difficulties experienced by the Appellant, he was entitled to proceed. The Judge took into account the overriding objective, and having considered the principle of fairness balanced against the applicable the rules given the lack of evidence, the Judge properly proceeded with the appeal.
28. It follows that the Appellant’s appeal to the Upper Tribunal must be dismissed.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of a material error of law and the decision shall stand. The Appellant’s appeal to the Upper Tribunal is dismissed.

S Iqbal

Deputy Upper Tribunal Judge Iqbal
Immigration and Asylum Chamber

18th June 2025