Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000208

First-tier Tribunal No: EU/52396/2023
LE/03827/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 June 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

Fotios Michalaris
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

DECISION AND REASONS
1. On 6 March 2025 I granted the appellant permission to appeal against the decision of First-tier Tribunal Judge Moxon (the Judge) dated 15 October 2024 dismissing the appellant’s appeal against the refusal of his application for leave to remain in the United Kingdom under the EUSS.
2. In my decision granting permission I explained my provisional view that the Judge’s decision contained a material error of law such that it had to be set aside and the matter be remitted to the First-tier Tribunal for re-hearing afresh. I invited any party who opposed that course of action to inform the Upper Tribunal in writing with reasons, within 21 days. I have received no such representations from either party to this appeal.
3. In these circumstances I find that it is in the interests of justice and consistent with the Tribunal’s overriding objective to resolve this appeal without a hearing in accordance with r34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I find that the decision of the Judge contained a material error of law and must be set aside for the following reasons.
4. The issue before the Judge was whether the appellant had been resident in the United Kingdom for a “continuous qualifying period” i.e. between his arrival in the United Kingdom prior to 31 December 2020 and the date he made his application on 10 November 2021 (the relevant period). The respondent was not represented at the hearing. The documentary evidence before the judge included witness statements from the appellant’s sister and brother-in-law in which they give evidence about the appellant’s residence with them in a family home in the United Kingdom throughout the relevant period. The Judge records that the appellant’s brother and sister both attended the hearing to give oral evidence but that the Judge indicated to them that he had no questions to ask of them and in those circumstances the witnesses did not give oral evidence and their accounts were not challenged.
5. At [9] of his decision the Judge says “Whilst I give weight to the evidence of the Appellant’s family members, I note they are not independent witnesses and their evidence must be considered in the round with all of the evidence in the case” The Judge went on to find against the appellant and contrary to the evidence from his sister and brother-in-law concluded that the appellant had not been resident for a continuous qualifying period.
6. As the Supreme Court recently made clear in Tui v Griffiths [2023] UKSC 48; [2023] 3 WLR 1204, referring at [44] onwards to case law going back to 1820, it is contrary to fairness and justice to impeach the evidence of a witness without giving that witness an opportunity to give an explanation for their evidence. See for example the judgment of Lord Herschell LC in Browne v Dunn quoted at [45] of Tui v Griffiths:
“I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
7. In the absence of the respondent it was incumbent on the Judge applying the Surendran Guidelines (see MNM v Secretary of State for the Home Department HX/53882/2000 *) to ensure that issues about their credibility were put to the witnesses. By making a finding that they were “not independent witnesses” and reaching a conclusion that was contradictory to their evidence without hearing from the witnesses and ensuring that credibility issues were put to the witnesses, the Judge adopted an unfair procedure which amounted to an error of law.
8. Applying Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), because the error of law involved the appellant being deprived of a fair hearing, the appropriate course is to remit the appeal for a fresh hearing in the First-tier Tribunal
Notice of Decision
The decision of First-tier Tribunal Judge Moxon contains an error of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing.

Luke Bulpitt
Judge of the Upper Tribunal
Immigration and Asylum Chamber
24 June 2025