Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000179

First-tier Tribunal No: EA/02126/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

PHILOMENA IDEHEN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Khalid, Counsel by Direct Access
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 27 May 2025

DECISION AND REASONS
1. The appellant is a 62 year old citizen of Nigeria. On 9 March 2021 she made an application to the respondent for leave to remain in the United Kingdom under the European Union Settlement Scheme (EUSS). The respondent refused her application on 22 October 2022 and the appellant appealed to the First-tier Tribunal. Her appeal was heard by First-tier Tribunal Judge Lemer (the Judge) on 6 September 2024 and on 18 November 2024 he promulgated his decision dismissing the appeal. The appellant now appeals against the Judge’s decision to this Tribunal having been granted permission by another First -tier Tribunal Judge.
The Legal Framework
2. Whilst the United Kingdom was a member of the European Union, by virtue of the Citizens Directive 2004/38/EC, which was transposed into law in the United Kingdom by the Immigration (EEA) Regulations 2016, EEA citizens and their spouses had the right to reside in the United Kingdom as long as the EEA citizen was exercising rights in accordance with the Citizens Directive. One such way of exercising treaty rights was working in the host country. The Directive provided that after five years of continuous residence in accordance with the Directive a person acquired a right of permanent residence in the host country.
3. When the United Kingdom left the European Union on 30 January 2020 there was an agreement (the Withdrawal Agreement”) between the United Kingdom and the European Union which allowed for EEA citizens and their spouses to apply for leave to remain in the United Kingdom after the repeal of the 2016 Regulations and the end of the right of residence under the Citizens Directive. The scheme for such applications was the EUSS, the full terms of which are set out as Appendix EU to the Immigration Rules.
4. Paragraph EU11 of Appendix EU to the Immigration Rules states that a person would be eligible for indefinite leave to remain under the EUSS if they meet one of seven Conditions. The first three of those conditions are relevant in this case and are (so far as is relevant)
I. the applicant is (or was) the family member of a relevant EEA citizen or is (or was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen and has a documented right of permanent residence
II. The applicant is the family member of a relevant EEA citizen or a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen and there is valid evidence of their indefinite leave to remain
III. The applicant is (or was) a family member of a relevant EEA citizen and has completed a continuous qualifying period of five years in that (or any combination) category
5. Paragraph EU14 of Appendix EU to the Immigration Rules states that a person meets the eligibility requirements for limited leave to remain under the EUSS where they are the family member of a relevant EEA or a family member who has a retained right of residence by virtue of a relationship with a relevant EEA citizen, and the applicant is not eligible for indefinite leave solely because they have completed a continuous qualifying period of less than five years.
6. By virtue of regulation 8 of the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 there are two grounds for appeal against the decision to refuse an application made under the EUSS. The first is that the decision breaches a right the person has under the Withdrawal Agreement between the United Kingdom and the EU, the second is that the decision is not in accordance with the EUSS.
The Judge’s Decision
7. The appellant attended the hearing before the Judge with a legal representative. The respondent was also represented at the hearing. The Judge sets out in his decision the permitted grounds of the appellant’s appeal and the burden and standard of proof. At [7] the Judge records that:
In reaching my decision I have taken into account the Appellant’s bundle of documents, constituting some 267 pages as well as the Respondent’s 319-page bundle and the Respondent’s review. A failure to expressly refer to a document, in the course of this determination, does not mean that I have not considered it.
8. The judge records the appellant’s agreed history which included the fact that she married a French national Mr Makoumbou in April 2004 and that in November 2004 she was issued with a residence card recognising her right to reside in the United Kingdom under the European Union (EU) right of free movement as the family member of an EU citizen. That residence card was however revoked by the respondent in March 2006 on the basis that Mr Makoumbou as not working in the United Kingdom as had been claimed and had provided false documents. In those circumstances it was not accepted that the appellant was entitled to reside in the United Kingdom. That decision was the subject of an appeal to the First-tier Tribunal in 2006 but that appeal was dismissed.
9. The Judge noted that the appellant’s application for leave to remain had been refused by the respondent on 22 October 2022 because the appellant had not been issued with a document recognising a right of permanent residence or indefinite leave, had not provided evidence that Mr Makoumbou was a relevant EEA citizen and had not provided evidence that Mr Makoumbou was resident in the United Kingdom prior to the specified date of 31 December 2020. The Judge records that those reasons for refusal had been maintained following the service of a review undertaken by the respondent in accordance with the Tribunal’s Practice Direction.
10. The respondent maintained that position at the hearing, and the judge records at [10] the respondent’s case that the appellant did not meet the requirements of the EUSS for being granted indefinite leave to remain because (i) she did not have a documented right of permanent residence or indefinite leave to remain, (ii) she had not completed a continuous qualifying period of five years as the family member of a relevant EEA citizen. Further she did not meet the requirements of the EUSS for being granted limited leave to remain because she could not establish that she was either the family member of a relevant EEA citizen or a family member who has a retained right of residence by virtue of a relationship with an EEA citizen.
11. The judge notes at [14] of his decision that the way the appellant sought to pursue her application under the EUSS had been obscured by confusing grounds of appeal which had been cut and pasted from other cases and which referred to the appellant’s relationship with her Irish cousin who is her carer. The Judge records however at the end of that paragraph that the appeal progressed in the hearing before him on the basis that the appellant was entitled to leave under the EUSS on the basis of her relationship with Mr Makoumbou.
12. At [11] the Judge sets out case which advanced on behalf of the appellant in the hearing, which was that Mr Makoumbou lived and worked in the United Kingdom from the 1980 until he left in 2021 and went to Nigeria, where he subsequently died on 10 January 2022. It was argued that the appellant lived with Mr Makoumbou from their marriage in 2004 until he left in 2021 and that throughout that time Mr Makoumbou was exercising treaty rights and so residing in accordance with the right of free movement. In those circumstances it was said the appellant met the requirement of the EUSS for being granted leave to remain.
13. Between [18] – [33] the Judge considered whether the appellant met the requirements of the EUSS as a result of her relationship with Mr Makoumbou. He recognises that there was no challenge to the fact the appellant was married to Mr Makoumbou from 2004 until to his death in 2022. The Judge finds at [19] that the appellant did not have a documented right of permanent residence and did not have evidence of indefinite leave to remain, so accordingly the Judge found that she could not meet the first two conditions under the EUSS for being granted indefinite leave to remain.
14. To determine whether the appellant met the third condition under the EUSS for being granted indefinite leave to remain the Judge considered whether the appellant had completed a continuous qualifying period of five years as a family member of a relevant EEA citizen, or the family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen. Referring to the relevant definitions of these terms in the EUSS, the Judge finds at [27] that the appellant’s case “breaks down” because of an absence of evidence to show that Mr Makoumbou was resident in the United Kingdom for a continuous five year period before 31 December 2020. At [28] the Judge explains this, stating that in addition to the account of the appellant, he would have expected to see some form of corroborating evidence to show Mr Makoumbou’s residence in the United Kingdom, but that no corroborative was provided of his residence in the United Kingdom during the five years immediately preceding 31 December 2020.
15. At [29] the Judge considers whether there is evidence of Mr Makoumbou residing in the United Kingdom continuously for an earlier period of five years. He refers to tax returns that were adduced for Mr Makoumbou for a period between 2005 and 2011 but finds he cannot rely on them, noting that Mr Makoumbou’s name and address could simply have been added to the documents. At the end of [29] the Judge gives his conclusion that Mr Makoumbou had not resided in the United Kingdom for a five year period at an earlier point.
16. At [31] – [33] the Judge concludes that the appellant likewise does not meet the eligibility requirements for limited leave to remain under paragraph EU14 because he is not satisfied that Mr Makoumbou was resident in the United Kingdom when the appellant made her application on 9 March 2021.
17. For the sake of completeness the Judge went on at [34] –[36] to consider whether the appellant met the requirements of the EUSS as a result of her relationship with her Irish cousin but concluded that she did not. The Judge therefore dismissed the appeal.
The Appeal to the Upper Tribunal
18. It is unclear who prepared the appellant’s grounds of appeal. They were submitted in the appellant’s name but at the hearing before me it was acknowledged that someone else drafted them on the appellant’s behalf. They contain three grounds but they are often incomprehensible and refer to irrelevant matters and other cases.
19. Ground one asserts a lack of jurisdiction and or procedural unfairness. This ground erroneously refers to the respondent refusing a human rights claim and the appeal being refused on Article 8 human rights grounds. It complains that the appeal was refused “on flimsy grounds”. At [21] the grounds say that in the alternative it is submitted that the proceedings were procedurally unfair because the appellant:
“had the benefit of all documents numbering in excess of 1100 pages in the bundle and these were not considered at all as the decision states that he has only considered 267 pages see the determination at 11”.
20. Ground two asserts that the Judge failed to consider whether the appellant’s deportation would be unduly harsh on the children of the appellant’s cousin. Within this ground there is a suggestion that the hearing went ahead in circumstances where the appellant’s health was very bad. Ground three asserts that the Judge failed to consider the appellant’s health in the proportionality balancing exercise of determining undue harshness.
21. Although permission to appeal was not limited, the First-tier Judge granting permission referred only to an arguable procedural irregularity as a result of the Judge’s reference to considering a bundle of 267 pages submitted on behalf of the appellant.
22. Having received the appeal on these terms the Upper Tribunal issued a direction on 14 February 2025 requiring the appellant to file and serve a witness statement in which she explained:
(a) How many bundles of evidence she or her legal representatives filed with the First-tier Tribunal.
(b) How may pages each of those bundles contained.
(c) The dates on which those bundles were filed with the First-tier Tribunal.
(d) The method used to file those bundles with the First-tier Tribunal.
(e) Whether her legal representative before the First-tier Tribunal informed Judge Lemar that she had provided more evidence than that contained in the 267-page bundle or sought to rely on evidence not contained in the 267-page bundle.
23. The appellant did not comply with this direction. Instead the night before the hearing the appellant sent by email a copy of the respondent’s bundle from the First-tier hearing, a witness statement within which the appellant says “I submitted 679 pages of evidence”, and a skeleton argument which refers to the three grounds of appeal being: (1) Material error of law in assessing treaty rights and retained rights; (2) Procedural Unfairness and failure to consider material evidence; and (3) Flawed proportionality assessment under article 8 ECHR.
24. At the hearing before me Mr Khalid stated that he had recently been instructed. I allowed him extra time to read the Judge’s decision. There was no application to amend the grounds of appeal from those on which the First-tier granted permission. In accordance with rule 23(1A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 therefore they stand as the appellants grounds in these proceedings.
25. Mr Khalid submitted that the Judge had not considered all the evidence relied upon by the appellant and if he had, the Judge would have found that the appellant met the requirements of the EUSS and should have been granted the leave he sought. Mr Khalid argued that the 697 pages of evidence submitted by the appellant showed that Mr Makoumbou had been residing in the United Kingdom between 1980 and 2021 and that the Judge erred by finding otherwise.
26. On behalf of the respondent, Mr Terrell argued that the appellant had failed to establish that the 697 page bundle was ever served on the Tribunal. In any event, he argued the additional pages, which were all bank statements in the name of the appellant, would have had no bearing on the Judge’s dispositive finding that Mr Makoumbou was not resident in the United Kingdom for a continuous five year period and was not resident in the United Kingdom immediately prior to 31 December 2020 or when the appellant made her application under the EUSS.
Analysis and Decision
27. This appeal is a clear example of the failings which led the Tribunal to recently publish its reported decision Rai and DAM (Grounds of Appeal – Limited Grant of Permission) [2025] UKUT 00150 (IAC) reminding appellants and practitioners of the need to identify the arguable errors of law in the grounds of appeal adequately so that the arguable error can be considered by a judge. There has been a distinct failure to comply with the Tribunal’s directions and to apply procedural rigour to this litigation which has led to a lack of clarity about the basis of the appeal and the arguments being relied and which upon cannot be explained by the fact that the appellant has at times during these proceedings been unrepresented. It is noteworthy that the appellant has been represented both at the hearing before the First-tier and the hearing before me.
28. Dealing with the grounds of appeal upon which permission to appeal was granted it is very clear that grounds two and three are entirely misconceived. Ground two refers to the three children of the appellant’s cousin and asserts that the judge failed to consider whether the appellant’s deportation would be unduly harsh on them, though there has never been any suggestion of deportation and the children were of no relevance to the issues to be determined by the Judge. Ground two inexplicably refers section 32 of the UK Borders Act 2007 which deals with the deportation of foreign criminals when there has been no suggestion that the appellant is a foreign criminal. Ground two complains that the hearing was unfair because the appellant’s health was bad when this was not raised by her advocate at the hearing, there was no application to adjourn the hearing and no apparent complaint about her health during the hearing at which she gave evidence.
29. Ground three complains about the “proportionality balancing exercise” and identifies a series of cases dealing with human rights claims despite the fact this was not a human rights appeal and the Judge was not required (indeed not permitted given the respondent did not consent to it) to consider “whether it would be unduly harsh on the appellant’s health , her cousin and the three children”.
30. Mr Khalid did not add anything relevant to these grounds nor could he as they are entirely without merit. The skeleton argument served the night before the hearing also referred to irrelevant matters such as a proportionality assessment under Article 8 ECHR which had not taken place and a misapplication of the 2016 Regulations which had not been the subject of the Judge’s consideration.
31. Much of ground one is similarly irrelevant or misconceived. The ground of “a lack of jurisdiction or procedural unfairness vitiating the determination of the [Judge]” referring to the appeal being refused on Article 8 human rights grounds which was simply not the case and refering to sections 82 and 84 of the Nationality Immigration and Asylum Act 2002 which were not relevant to the appellant’s appeal. The First-tier Judge who granted permission to appeal however identified one issue which he considered to be arguable that was raised at [21] of ground one, which was the suggestion that the Judge failed to consider all of the evidence that was submitted by the appellant. That issue was therefore the focus of the hearing before me.
32. It is far from clear to me exactly what evidence there was from the appellant before the Judge. It is regrettable that the appellant failed to comply with the direction that was issued by this Tribunal in any attempt to clarify the position and has not provided a witness statement identifying what evidence she served, when she served it and how she served it. The First-tier Tribunal’s file refers to a 267 page bundle submitted by the appellant. Mr Terrell stated that the respondent’s file also contains a 267 page bundle submitted on behalf of the appellant. Mr Khalid accepted that a 267 page bundle was indeed served by the appellant initially, however he stated that a second bundle which contained the original 267 pages plus an additional 430 pages of bank statements was served on the Tribunal on the day of the hearing as a paginated PDF bundle of 679 pages. Mr Khalid said that this second, enlarged bundle was emailed to the Tribunal the night before the hearing and directly to the Judge on the morning of the hearing. Although Mr Khalid was able to show emails being sent to the Tribunal on those occasions, it is not possible to discern what was attached to those emails or whether they were actually received by the Tribunal or the Judge.
33. Given the lack of detailed information provided and the abject failure to comply with a direction to provide such information, I conclude that it is not possible to say that there was evidence adduced before the Judge which he then failed to consider. It is not possible to conclude that there was a procedural unfairness during the proceedings at the First-tier Tribunal that amounted to an error of law.
34. In any event, having had the opportunity to assess the full 697 page bundle, it is clear that the additional 430 pages of bank statements it contains would have had no material effect on the Judge’s consideration of the key disputed issue in the appeal, namely whether Mr Makoumbou resided during the material times. The additional 430 pages of evidence were all bank statements relating to the appellant’s bank account, they did not relate to Mr Makoumbou at all. When I asked him Mr Khalid said the relevance of the bank statements were they showed the appellant living at the same address as was recorded on HMRC documents for Mr Makoumbou. This however missed the point which was not whether the appellant has ever lived with Mr Makoumbou but whether Mr Makoumbou was resident in the United Kingdom at any of the material times.
35. The reality is that the content of the appellant’s bank statements could not shed any light on the disputed issues of whether and when Mr Makoumbou was resident in the United Kingdom. Specifically they would have no impact on the Judge’s findings about whether Mr Makoumbou was continuously resident in the United Kingdom for five years before 2020, whether he was resident in the United Kingdom immediately before 31 December 2020 and whether he was resident in the United Kingdom at the time of the appellant’s application for leave to remain in March 2021. The Judge found against the appellant on those issues and even if it was the case that the Judge did not consider the 430 pages of the appellant’s bank statement when reaching those findings there is no prospect that the additional pages could possibly have led him to a different conclusion.
36. I find therefore that there was no error of law in the Judge’s decision and there is no reason to interfere with that decision.
Notice of Decision
The appeal is DISMISSED. The decision of First-tier Tribunal Judge Lemer does not contain an error of law and shall stand.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

02 June 2025