Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000055

First-tier Tribunal No: EA/00689/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE J K SWANEY

Between

ISMAIL SINANI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No appearance
For the Respondent: Mr M Parvar, senior presenting officer
Heard at Field House on 10 March 2025
DECISION AND REASONS
1. The appellant appeals against the decision of First-tier Tribunal Judge Rothwell (the Judge), dated 19 November 2024 dismissing his appeal against the refusal of his application for leave to remain under the EU Settlement Scheme (EUSS).
Background
2. The appellant is a national of Albania. He applied for leave to remain under the EUSS on 16 June 2023. His application was made after the deadline of 30 June 2021.
3. The respondent wrote to the appellant on 25 September 2023 to ask for further information in respect of his application. The respondent requested evidence of his eligibility under the EUSS, specifically in relation to his residence in the United Kingdom prior to 31 December 2020. The appellant did not respond and on 4 October 2023 the respondent refused his application.
4. The sole reason for refusal was that the appellant had failed to provide evidence of his residence in the United Kingdom prior to 31 December 2020. The respondent did not take issue with any of the other eligibility criteria and did not take issue with the fact that his application was made after the 30 June 2021 deadline.
5. The appellant initially sought administrative review of the decision, but subsequently withdrew his application before it had been considered and instead lodged an appeal to the First-tier Tribunal. The appeal was lodged out of time, but a legal officer extended the time for appealing and the appeal was admitted.
6. The appellant requested that his appeal be determined on the papers without a hearing. The Judge noted that there was no objection from the parties to the appeal being determined in this manner.
7. The Judge proceeded to decide the appeal on the basis of the documentary evidence before her. She noted that the respondent had not considered the evidence relied on by the appellant. The Judge did not make clear findings of fact except in one regard. She accepted that it is more likely than not that the appellant had been in the United Kingdom since before 31 December 2020. Notwithstanding that this disposed of the sole reason for refusal given by the respondent, the Judge noted other issues with the evidence, including in particular that it was not clear on which relationship the appellant’s application was based. She noted that there were documents relating to two spouses before her and that there was no evidence of the appellant being divorced from his first wife. The Judge proceeded to dismiss the appeal.
8. The appellant lodged an application for permission to appeal. The grounds of appeal can be summarised as follows:
(i) The Judge’s finding in relation to the tenancy agreement relied on is factually wrong.
(ii) The Judge dismissed the appeal on the basis of an issue that was not in dispute which gave rise to procedural unfairness.
(iii) The Judge failed to have regard to material evidence and/or failed to give adequate reasons for her findings.
(iv) The Judge gave too much weight to immaterial matters.
9. First-tier Tribunal Judge Murray granted permission to appeal on 12 December 2024. In granting permission, Judge Murray noted that it was arguable that the Judge had failed to direct herself in accordance with in accordance with SSGA (Disposal without considering merits; R25) Iraqi [2023] UKUT 00012 (IAC); and that the Judge had dismissed the appeal on the basis of matters other than those raised in the decision under appeal, which were not put to the appellant, giving rise to procedural unfairness given that credibility was in issue.
The hearing
10. The appellant did not attend the hearing. There was no correspondence from the appellant either asking for an adjournment or explaining his absence. The clerk attempted to contact the appellant by email on the morning of the hearing, but there was no response.
11. Having checked the tribunal’s case management system, I am satisfied that reasonable steps were taken to notify the appellant of the hearing and that he chose not to attend. I considered that it was in the interests of justice to proceed with the hearing. The appellant provided a written submission in advance of the hearing, which I took into account, in addition to the bundle prepared by the appellant.
12. I asked Mr Parvar whether he had seen the appellant’s submission. He said that he had not seen it and that he was not aware of a bundle having been served on the respondent. I noted that there was a bundle and agreed to provide a copy to him by email. Having had an opportunity to consider the bundle and the submission, Mr Parvar confirmed that he was content to proceed.
13. Mr Parvar accepted on behalf of the respondent that the Judge made a material error of law in dismissing the appeal on the basis of matters not raised in the decision letter, which had not been put to the appellant, which in line with the guidance in SSGA, gave rise to procedural unfairness. Mr Parvar submitted that the appropriate course of action was to remit the appeal, as the issues raised by the Judge were material and would require further fact finding. The appellant in his written submission asked for the appeal to be remitted in the event I found a material error of law.
14. I noted that it was unclear whether the respondent considered the application on the basis of the appellant’s relationship with his current spouse. I noted that notwithstanding that the summary of the application form contained in the respondent’s bundle contains the name of the appellant’s former spouse, the respondent’s bundle contains a copy of the passport of the appellant’s current spouse and various other documents relating to her. Mr Parvar stated that he could not confirm whether the respondent considered the application on the basis of the appellant’s relationship with his current spouse or not. He indicated that this could be dealt with by case management directions in the First-tier Tribunal on remittal.
Discussion
15. I find that the decision of the Judge contains a material error of law for the following reasons.
16. Mr Parvar confirmed before me that the sole reason for refusal in the decision under appeal was that the appellant had not established his continuous residence in the United Kingdom, which had begun before 31 December 2020.
17. The Judge made a positive finding in relation to the sole controversial issue in the appeal, but nevertheless dismissed the appeal on the basis that there is a conflict in the evidence as to who is the appellant’s spouse, such that she could not be satisfied that the appellant met all of the relevant eligibility criteria. The Judge acknowledges at paragraph 15 of her decision:
As stated above the respondent has not assessed this evidence and the appellant chose to have his appeal decided on the papers, so I cannot clarify any issues with him. The respondent may have raised other issues if these documents had been submitted with the application.
18. The Judge was therefore alive to the fact that she had not been able to put matters to the appellant that she regarded as material to the outcome of the appeal and ought to have appreciated that this gave rise to procedural unfairness.
19. The Judge has regard to rule 25 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the Procedure Rules), in the final paragraph of her decision. She finds that no party has objected to the appeal being determined without a hearing, meaning that rule 25(1)(a) is engaged. However, in the circumstances of this appeal, this is not sufficient, and does not take into account the guidance of the Upper Tribunal in SSGA. Specifically, the Judge ought to have had regard to paragraph 74(iv) of the decision (repeated at paragraph 4(iv) of the headnote), which provides:
(iv) A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially in issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal.
20. The appellant’s credibility was not directly in issue; however, there was a conflict of evidence/fact which could not be resolved without putting the matter to the appellant. The Judge did not do so and proceeded to dismiss the appeal on the basis of that unresolved conflict of evidence/fact. This gave rise to procedural unfairness which was material to the outcome of the appeal.
21. Having had regard to paragraph 7.2 of the Practice Directions and what was said by the Court of Appeal in AEB v SSHD [2022], Civ 1512, I find that the appeal should be remitted to the First-tier Tribunal for a fresh hearing. This is because given my findings, I cannot simply remake the decision without submissions and further evidence. I considered that the nature of the fact finding required means that it is appropriate to remit the appeal.
22. I considered whether any of the Judge’s findings ought to be preserved, and find that the Judge’s finding at paragraph 22 of her decision that it is more likely than not that the appellant has been resident in the United Kingdom since 31 December 2020 should be preserved. I note here that I consider that there is a missing word in the Judge’s sentence in paragraph 22 and that it should read: ‘I accept that it is more likely than not that the appellant has been in the UK since [before] 31 December 2020.’ This is because of what the Judge states at paragraph 12 of the decision:
The appellant has provided a large amount of evidence to show that he has been in the United Kingdom since before the 31/12/2020. He has provided joint bank statements with his spouse, his own bank statements, car insurance, home insurance, penalty notice charge and an order for recovery of an unpaid penalty charge, vehicle tax reminder, Suits Me accounts and statements, registration at a GP. All these documents relate to the appellant being at 2 Stanhope Road, Greenford. (Emphasis added)
23. The Judge’s finding that the appellant had resided in the United Kingdom before 31 December 2020 was based on the evidence and is not infected by the error of law.
24. The evidential/factual issue identified by the Judge is potentially material to whether the appellant satisfies the requirements of the EUSS for a grant of leave to remain. The First-tier Tribunal will need to have regard to the guidance in paragraph 74(iv) of SSGA when making case management directions.
Notice of Decision
25. The decision of the First-tier Tribunal involves the making of an error of law.
26. The decision of the First-tier Tribunal is set aside save that the findings of fact set out in paragraph 22 that the appellant has resided in the United Kingdom since 31 December 2020 is preserved.
27. The appeal is remitted to the First-tier Tribunal at Hatton Cross for a hearing before any judge other than Judge Rothwell.
J K Swaney
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 March 2025