Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003536
First-tier Tribunal No: EU/51076/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

ANDREA GIUSEPPE GERINA
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Not present and unrepresented
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on 6 July 2026

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal, promulgated on 20th May 2025, dismissing the appellant’s appeal against a decision of the Secretary of State made on 22nd January 2024, refusing his application under Appendix EU.
Background to the appeal
2. The appellant is an Italian national who entered the UK on an unknown date. He applied for status under Appendix EU as the durable partner of a relevant EEA citizen. The appellant stated that he was in a relationship with an Italian citizen and that they had cohabited in Italy from 2018 until she relocated to the UK to attend University. He stated that he joined the relevant EEA citizen in the UK after 31st December 2020.
The First-tier Tribunal decision
3. The Tribunal dismissed the appeal. The Judge found that it was not necessary for the appellant and the relevant EEA citizen to show that they were in a durable relationship for two years prior to 31st December 2020 [13]. He noted that the appellant had requested a paper hearing and that the Tribunal was therefore unable to request further information from the appellant or clarify any issues with him [14]. The Judge found that this did not automatically mean that the claim was not made out but that it was relevant to the assessment of whether the appellant had established his case [15]. The appellant had provided various documents but some of these were untranslated. The Judge found that he could not take account of the documents which were not in English [16]. The Judge stated that he had taken account of all of the evidence which was in English but found that the evidence was insufficient to show that there was a durable relationship as at the specified date [17].
The appeal to the Upper Tribunal
4. On 2nd February 2026, the Upper Tribunal granted permission to appeal to the Upper Tribunal. The Upper Tribunal found that it was arguable that the Judge should not have disregarded the documents which were not in English. The Upper Tribunal also stated that it was arguable that the Judge did not consider whether an oral hearing was required under the principles in SSGA (Disposal without considering merits; R.25) Iraq [2023] UKUT 00012 (IAC). Permission to appeal was granted on all grounds.
The grounds of appeal
5. The appellant put forward three grounds of appeal.
Ground 1
6. The appellant submitted that the Judge did not adequately consider the evidence of cohabitation provided by the appellant. The appellant stated that he had provided evidence of cohabitation since 2018 and evidence of two years’ cohabitation in the UK which was not adequately considered by the Judge.
Ground 2
7. The appellant submitted that the judge failed to give adequate reasons for his decision and did not provide sufficient reasons for rejecting the evidence provided by the appellant.
Ground 3
8. The appellant further submitted that the judge had failed to consider the impact on the appellant’s family and private life under Article 8 if he were required to leave the UK.
Ground 4
9. Ground 4 was not raised by the appellant but was raised by the Upper Tribunal of its own accord. The Upper Tribunal found that it was arguable that the Judge had not considered the guidelines in SSGA and considered whether an oral hearing was necessary given that credibility was an issue in the appeal.
The Rule 24 response
10. The respondent did not file a Rule 24 response.
The hearing
11. The appellant did not attend the hearing. The CE file showed that a Notice of Hearing was served on the appellant by post and email on 28th May 2026. The appellant did not request an adjournment of the hearing and there was no explanation for his absence.
12. I considered Rule 38 of the Tribunal (Upper Tribunal) Procedure Rules 2008 which states:
‘If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.’
13. The Notice of Hearing was sent to the appellant by email and post. I was satisfied that the appellant had been notified of the hearing or that reasonable steps had been taken to notify the appellant of the hearing.
14. I then considered whether it was in the interests of justice to proceed with the hearing. There was no explanation for the absence of the appellant. There was no application for an adjournment by the appellant. I was satisfied that the notice of hearing had been properly served on the appellant. The hearing had previously been adjourned when the appellant failed to attend the hearing. An adjournment would lead to a delay in the error of law hearing being heard and there was no explanation as to why an adjournment was necessary. I found that it was in the interests of justice to proceed in the absence of the appellant.
15. I heard submissions from Mr Simpson. The submissions are fully set out in the recording of the proceedings.
Error of law decision
16. I bear in mind that an appellate Tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so I apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]. I further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72].
17. Mr Simpson submitted that the respondent had not been able to verify the Italian documents and therefore little weight could be placed on them. He submitted that the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the Procedure Rules”) required documents to be translated into English where an appellant wished to rely on them. He further submitted that the Judge properly considered the evidence and applied the correct Immigration Rules giving sufficient reasons for his findings. Mr Simpson submitted that the Upper Tribunal raised the issue of SSGA of its own accord. He submitted that it was not a R v SSHD ex parte Robinson [1997] EWCA Civ 3090 obvious point and that it was not clear that the ground had a strong prospect of success. He submitted that the appellant was aware of the issues and had time to respond but chose to ask for a paper hearing. Mr Simpson submitted that, in any event, the Judge gave an explanation for why he proceeded to decide the appeal on the papers. He further submitted that the Judge could not consider any human rights arguments as the appeal was an appeal against a decision to refuse status under Appendix EU.
18. The Judge considered whether he could take account of the documents which were in Italian. He found that he could not do so as they had not been translated in accordance with Rule 12 of the Procedure Rules.
19. Rule 12(5)(b) of the Procedure Rules states:
‘if a document provided to the Tribunal is not written in English, it must be accompanied by an English translation.’
20. It was open to the Judge to find that he could place no reliance on those documents when they had not been translated in accordance with the requirements of the Procedure Rules. Whilst the respondent’s decision refers to the documents as being a joint tenancy agreement and joint non UK utility bills, the decision also refers to the documents not being able to be verified as they were not in English. The documents did not comply with the Procedure Rules because there was no English translation. The appellant was aware from the decision that this was an issue but chose not to provide a translated copy of the documents. In those circumstances, the Judge cannot be criticised for failing to place any weight on those documents.
21. The Judge considered the other documents which were before him and gave cogent reasons for finding that the evidence was insufficient to show that there was a durable relationship as at the specified date of 11.00pm on 31st December 2020. The Judge was entitled to reach the conclusion he reached regarding those documents. There was limited evidence before the Judge. The appellant was aware of the issues to be decided. He asked for a paper hearing but chose to submit limited documents in support of his account to have been in a durable relationship as at the specified date. The Judge was entitled to reach the view he reached with regard to those documents.
22. It was not open to the Judge to consider any human rights arguments. The decision in Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC) confirms that, in an appeal against an Appendix EU decision, human rights cannot be considered without the consent of the respondent. The respondent did not give consent for human rights to be considered. The Judge was not, therefore, able to consider any human rights arguments and there is no material error of law in the Judge failing to do so.
23. The last ground for permission to appeal was one raised by the Upper Tribunal of its own volition. The Upper Tribunal found that it was arguable that the Judge failed to consider whether it was necessary to list the appeal for an oral hearing because credibility was in issue. The decision in SSGA states:
‘(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.’
24. Mr Simpson submitted that this was not a Robinson obvious point. However, SSGA gives clear guidance to the First-tier Tribunal as to whether an oral hearing should be listed even if an appellant has requested a paper hearing. It is not clear from the face of the decision whether the Judge considered whether it was necessary for there to be an oral hearing. The Judge makes reference to the appellant requesting a paper hearing and finds that there was ‘no good reason to depart from the joint view of the parties’ regarding the type of hearing [7]. However, at [14] the Judge also states ‘The difficulty with the Appellant’s case starts with the fact that he has sought a paper hearing of the appeal. This means that he has decided not to attend the Tribunal and therefore the Tribunal is unable to seek further information or to clarify matters with him. Equally the decision to pursue a paper hearing means that Tribunal has not received any evidence from the sponsor at all.’
25. The Judge was therefore aware that (a) there were credibility issues and (b) they could not easily be addressed because the appellant had chosen to request a paper hearing. In those circumstances, it was necessary for the Judge to give clear reasons as to why he was content to continue the hearing as a paper hearing. As is stated in SSGA, where credibility is materially in issue it would only be in rare cases that it would be appropriate to determine an appeal without a hearing. In this case, credibility was an issue because the respondent did not accept that there was a durable relationship prior to the specified date of 11.00pm on 31st December 2020. The Judge did not give clear reasons for finding that it was appropriate to continue the hearing as a paper hearing rather than adjourn the hearing and list for an oral hearing. It is clear from the decision that the choice of the appellant to have a paper hearing meant that the Tribunal could not easily assess the credibility of the appellant’s claim to have been in a durable relationship as at the specified date because it did not have evidence from the appellant or the sponsor. The Judge did not make clear reference to the principles in SSGA when deciding to continue with a paper hearing. I find that the Judge has failed to clearly apply the principles in SSGA and that there has, therefore, been a material error of law.
26. For the reasons given above, I conclude that the First-tier Tribunal decision did involve the making of an error of law.
27. I have considered whether to retain the appeal before the Upper Tribunal but the material errors of law relate to credibility issues and it will be necessary for there to be a credibility assessment undertaken as a result. In those circumstances, I find that it is appropriate for the decision to be wholly set aside and for the appeal to be remitted to be reheard before the First-tier Tribunal afresh. The matter should be listed as an oral hearing when listed before the First-tier Tribunal.

Notice of decision
1. The First-tier Tribunal decision did involve the making of an error of law.
2. I remit the appeal to the First-tier Tribunal to be heard by a different judge. For the avoidance of doubt, none of the findings of fact are preserved.

F Beach
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
20th July 2026