Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000110

First-tier Tribunal No: EA/03671/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th June 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

KALEEM ULLAH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jafar, counsel
For the Respondent: Mr Deller, Senior Presenting Officer

Heard at Field House on 12 June 2025

DECISION AND REASONS
Introduction
1. This decision follows a resumed hearing after a material error of law was found by Deputy Upper Tribunal Judge Sills in a decision promulgated on 14 April 2025. For reasons which will become clear, this decision must be read in conjunction with that decision.
Background
2. The appellant appeals against the respondent’s refusal decision of 2 November 2023 in which he was found not to qualify for settled or pre-settled status under the EU Settlement Scheme as implemented by Appendix EU of the Immigration Rules. The decisive basis on which the application was refused was because a previous application for residence status, made before the specified date, under the fore-running 2016 regulations, was found to be invalid. As a consequence, his application under the EUSS was refused because he was neither residing in the UK with a relevant document nor was his residence being facilitated so as to bring him within the embrace of the applicable rules and the Withdrawal Agreement. The remaining eligibility criteria were not addressed in substance save to say that it was found that he did not meet any of the other requirements.
Appeal to the Upper Tribunal
3. In the error of law decision, DUTJ Sills comprehensively analysed the authorities touching on how such invalidity questions fell to be resolved when they were of relevance to an appeal before the tribunal. He found that material errors of law were involved in the First-tier Tribunal Judge’s approach to the important issue of whether the pre-specified date application under the 2016 Regulations was lawfully treated as invalid. In adjourning for the underlying decision to be remade in the Upper Tribunal, directions were issued to the parties to provide any further evidence they sought to rely upon. The respondent was further directed to set out any reasons, apart from the validity issue, as to why the EUSS application ought not to succeed. The respondent did not comply with the second direction. Contemporaneous records were produced from the Home Office Atlas system which recorded notes about why the December 2020 application was treated as invalid. Case note 1, of 5 February 2021, included the following narrative: “Fee Error payment delcined [sic]. No proof of relationship provided to prove relationship between applicant and sponsor.”. A further note, dated 17 March 2021, stated: “Final Rejection Minute Home address checked: Y Representative details verified: N/A Warehouse checked: Y CID notes checked: Y REASON FOR REJECTION (PLEASE DETAIL): Fee error- declined.”.
4. At the remaking hearing, Mr Deller initially suggested that we should revisit the legal basis on which DUTJ Sills reached the conclusion that the decision of the First-tier Tribunal Judge involved material errors of law. The respondent’s initial position was that it was not lawfully open to the Tribunal to consider whether the respondent’s validity decision of March 2021 was properly made in the absence of a timely and direct challenge to that decision. It was said to be too late and procedurally misconceived to bring such a challenge in the context of an appeal against an EUSS decision taken several years later. After hearing submissions, we rose to consider how we should proceed. When we returned, Mr Jafar made the point that good reasons would be required before we could seek to go behind the settled error of law decision. Mr Deller recognised the force of this argument and abandoned the suggestion that the validity issue did not fall to be decided in this forum. Instead, he accepted that the only issue to be resolved in remaking the appeal was to assess whether the respondent had discharged her burden in accordance with authorities, in particular Basnet v SSHD [2012] UKUT 00113 (IAC) and Mitchell (Basnet revisited) [2015] UKUT 00562 (IAC), to establish that the validity decision was properly taken in refusing the subsequent claim.
5. We heard oral evidence from the appellant and Mr Siddique, whose banking details were provided for the purposes of paying the fee for the pre-specified date application. Both witnesses gave unchallenged evidence that the correct banking details were provided with the application for Mr Siddique’s account, from which the fees were to be claimed. Mr Deller clarified that he was not seeking to challenge the proposition that the correct payment details were provided with the application and payment was duly authorised.
6. After the oral evidence was heard, Mr Deller proceeded to make oral submissions. I asked him to clarify whether the respondent was in a position to rely on any direct evidence tending to show that the collection of the appropriate fees to facilitate the December 2020 application was not duly authorised or that the details provided were those used to attempt to process the payment. It was accepted that there was no such evidence. After taking a moment to reflect on the respondent’s position, Mr Deller conceded that the respondent’s burden could not be discharged on the available evidence and that the inevitable result must be that the appeal fell to be allowed under the Withdrawal Agreement. In the circumstances, we did not hear submissions from Mr Jafar.
Discussion
7. A concession by the respondent does not bind the tribunal to accept it. The decision whether to allow or dismiss the appeal remains one which we must exercise independently. However, we are satisfied that the concession was properly made and that it functions as an important indication in these adversarial proceedings as to the merits of the appeal. The respondent has accepted that she cannot discharge the burden of proof which is upon her even against the nuanced approach referred to in Mitchell. We agree. This is not a case where it has ever been suggested that the mandate to collect the fees from Mr Siddique’s bank account was not properly authorised with the correct details provided with the application. As DUTJ Sills observed, this is not a case like Kousar v SSHD [2018] EWCA Civ 2462, where the appellant had not duly authorised payment when the application was prepared. On the very limited available evidence from the respondent, it simply cannot be known whether the details provided were the same as those used to process the payment nor is there any safe evidential foundation to conclude that Mr Siddique’s bank rejected the payment because insufficient funds were available; the bank statements provided by the account holder strongly suggests the fee payment could be satisfied given the ample balances which were available at the relevant times.
8. The respondent has not discharged her burden to show that the decision to invalidate the application of December 2020, before the specified date, was properly taken. No other reason has been offered as to why the EUSS application should fail. It follows that the appellant’s pre-specified date application for residence under the 2016 regulations remains extant such that the decision to refuse his application under the EUSS amounts to a breach of Article 10 of the Withdrawal Agreement because he remained subject to facilitation. His appeal therefore succeeds.
Notice of Decision
The appellant’s appeal is allowed as the refusal decision breaches his rights under the Withdrawal Agreement.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 June 2025