Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002666

First-tier Tribunal No: EU/53426/2024
LE/01184/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 1st of October 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

ALVARO MANUEL GONCLAVES ALVES DIAS
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 22 September 2025

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision, dated 28 March 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to dismiss the appeal under the Appendix EU of the Immigration Rules.
Background
2. The central issue to be decided in the appeal was whether the appellant had resided in the UK for a period of time which would enable him to qualify for status under the EUSS.
Appeal to the First-tier Tribunal
3. The appellant appealed against the refusal of his claim. The appeal was decided on the papers without a hearing. The critical part of the reasoning which went against the appellant is to be found at [21] where the judge said this:
He has submitted many Virgin media bills but again these do not show that he has been in the UK continuously as he could be using his phone on that account whilst abroad.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on the following grounds:
I. The judge misunderstood the Virgin Media bills.
II. The judge was wrong to have proceeded to decide the appeal on the papers.
5. In a decision dated 10 July 2025, Upper Tribunal Judge Jackson granted permission for both grounds to be argued.
6. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
7. At the outset of the hearing, Mr Diwnwyz clarified the respondent’s position. He indicated that he did not oppose the appeal on the strength of ground one.
8. I am satisfied that the judge’s treatment of the Virgin Media bills amounts to a mistake of fact. This type of error of law was considered in the leading authority of E & R v SSHD [2004] Q.B. 1044. At [66] of the judgment of Carnwath LJ (as he then was), the following considerations were held to be of importance in assessing whether a mistake of fact amounts to an error of law: 
[…] First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning. 
9. Mr Diwnwyz was right to concede that all of the above conditions are established here. There was demonstrably a mistake as to an existing fact because the Virgin Media bills which the judge considered related to broadband services, not a mobile phone. There is no dispute that the evidence was established in the sense that it was uncontentious and objectively verifiable. The appellant was not responsible for the judge’s error. One need only to look to the significance attached to this evidence, and how it was marginalised to dismiss the appeal to see that it was quite obviously material to the overall outcome. I am satisfied that the judge has laboured under a mistake of fact which amounts to an error of law. I set aside the decision and need not consider the second ground of appeal because it is now academic.
10. At the hearing, I indicated that I would be allowing the appeal. The parties spoke as one in inviting me to remake the decision in the Upper Tribunal. I stood the matter down to allow Mr Diwnwyz an opportunity to consider the available evidence. When I returned to court, the respondent invited me to allow the underlying the appeal because the evidence demonstrated that the appellant had been resident for a continuous qualifying period.
Notice of Decision
The decision of the First-tier Tribunal involved a material error of law. I set the decision aside and remake the appeal by allowing the appeal under Appendix EU.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2025