Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004506
First-tier Tribunal No: EU/52911/2024
LE/00198/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

ZAHNIA JOELLE CANUL
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr. E. Da Silva, Senior Immigration Advisor, Foutain Solicitors
For the Respondent: Ms. L. Clewley, Senior Home Office Presenting Officer

Heard at Field House on 17 March 2026

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision of the First-tier Tribunal, dated 30 November 2025, dismissing her appeal in relation to her application under the EU Settlement Scheme, as a family member, namely the durable partner of Mr. Sanchez (her “sponsor”).
Background
2. On 23 November 2023, the appellant made an application under the EU Settlement Scheme. On 28 March 2024, the respondent refused her application because she had not provided adequate evidence to demonstrate she had been the durable partner of her sponsor by the “specified date”, namely 31 December 2020, which is the date of the end of the Brexit transition period. The appellant appealed against the respondent's refusal of her application.
First-tier Tribunal Decision
3. The appellant’s appeal was heard by the First-tier Tribunal judge (“the judge”) on 6 May 2025. The judge heard oral evidence from both the appellant and the sponsor and considered documentary evidence which had been submitted in support of the appeal. The judge was satisfied that the appellant and the sponsor were in a durable relationship by the time of the appeal hearing, accepting at [21] “that the evidence that had been adduced for the more recent years, after 2021, would support a relationship”. However, significantly, the judge was not satisfied that there was sufficient evidence to demonstrate that the appellant and her sponsor had been in a durable relationship on the “specified date”, namely 31 December 2020 [22]. Consequently, the judge dismissed the appeal.
The Grounds of Appeal
4. In granting permission to appeal Upper Tribunal Judge Owens noted the grounds had not been very well drafted but characterised them as raising three distinct grounds and granted permission on all grounds. The first ground of appeal related to potential procedural impropriety and unfairness, and concerned whether the judge made a material error by referring to the issue of a “durable relationship of convenience” when this was not something that had been referred to by the respondent in refusing the application. The second ground of appeal was whether the judge had erred by failing to take into account material evidence. The third ground of appeal, was whether the judge had erred by failing to give adequate reasons for rejecting the appellant’s and sponsor’s oral evidence.
The Hearing before the Upper Tribunal
5. The hearing before the Upper Tribunal was listed to take place by CVP. The Home Office representative attended via CVP. The appellant and the sponsor were also present by CVP. However, Mr. Da Silva, who represented the appellant, was unable to connect via CVP and instead joined the hearing by telephone. There was no objection by either party to Mr. Da Silva joining the hearing by telephone. Although there was a technical difficulty partway through this was identified and rectified by Mr. Da Silva hanging up and calling into the hearing again. Thereafter, it was possible to complete the hearing without any further technical difficulty.
6. At the start of the hearing I checked whether the parties had the relevant documentation for the hearing. Mr. De Silva indicated he did not have the Rule 24 Notice. I was satisfied from the Tribunal records, confirmed by Ms. Clewely that the Rule 24 had been served in December 2025. I therefore gave Mr. Da Silva the time he required to read the Rule 24 Notice before continuing with the hearing. I also confirmed that the parties were content to proceed on the basis of the three grounds of appeal referred to by the Upper Tribunal judge who granted permission to appeal. Mr. Da Silva agreed that there were no additional grounds or issues, other than an application under Rule 15(2A) of the Upper Tribunal Rules 2008, to introduce fresh evidence. I provided reasons for rejecting this application during the hearing. In summary, the application related to some further documentary evidence which had existed prior to the hearing before the First-tier Tribunal judge, but which the appellant had not appreciated might be useful and had only provided to his solicitor after that hearing. I did not admit the documents, which did not meet the test in Ladd v Marshall [1954] 1 WLR 1489 and were not relevant to whether there had been an error of law. I also noted that there were procedural deficiencies in the Notice provided by the appellant’s legal representatives, which did not comply with Rule 15(2A).
Decision
Ground 1
7. I am satisfied that the judge did not make a material error of law in relation to the first ground of appeal. The references made by the judge to a “durable relationship of convenience” at [6], [7] and [16] are all made in the context of the judge setting out the law. However, the judge did not need to, and did not apply the law applicable to a “durable relationship of convenience” in reaching his factual findings. I am therefore unable to conclude that the mention made by the judge of a “durable relationship of convenience” in the context of setting out the law, affected his decision making. I accept the submission made by Ms. Clewley, that the judge identified the issue which needed to be determined, namely whether the appellant and the sponsor were in a durable partnership at the specified date ([4] and [16]), and in concluding there was insufficient evidence of the same was not influenced by whether the relationship was a “durable relationship of convenience”.
Ground 2
8. The second ground of appeal ss that the judge fell into error by failing to take account of material evidence. The judge referred to the evidence in support of there being a durable relationship by the specified date as comprising of tenancy agreements for a shared address in Belize dated 1 March 2019, 1 March 2020 and 1 March 2021 [17] and four photographs pre-dating December 2020 [19]. The judge considered this evidence, in addition to the oral evidence given by both the appellant and the sponsor but concluded it was not sufficient to demonstrate that their relationship had been durable before the specified date [22]. In so concluding, the judge referred to the lack of formal or official documentation in addition to the tenancy agreements to support that the relationship was durable at that time [18], the limited evidentiary value of only four photographs [19], and the absence of any evidence of communications between the couple prior to December 2020 [20].
9. At the hearing before the Upper Tribunal, Mr. Da Silva submitted that the judge did not take into account copies of the sponsor’s driving licence at page 183 of the bundle, which includes one issued on 17 November 2020, which showed his address as the same as that in the tenancy agreements. Mr. Da Silva urged me to conclude, first that the evidence is relation to the driving licence had been missed by the judge, and second that taken with the tenancy agreements it was enough for the judge to find there had been a durable relationship by the end of December 2020. Ms. Clewley submitted that the copies of the sponsor’s driving licences did not assist in showing there was a durable relationship at the specified date, because it only evidenced the sponsor’s connection with the address at the time, but did not show that the appellant was living there with the sponsor, nor that they were in a durable relationship. Ms. Clewley pointed to a copy of the appellant’s driving licence at page 185 of the bundle, which referred to the shared address but was issued only on 20 April 2021 (i.e. after the specified date).
10. It is important to recall that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, which is a specialist fact finding tribunal who, unlike the Upper Tribunal considering whether there has been an error of law, will have had the benefit of hearing the entirety of the evidence: Yalcin v SSHD [2024] EWCA Civ 74, (Underhill LJ at [50] referring to Lord Hamblen in HA (Iraq) [2022] UKSC 22, [2022] 1 WLR 3784). The judge in this appeal had the benefit of hearing evidence from both the appellant and the sponsor, as well as the documentary evidence submitted at the time of the hearing. At [22] the judge stated, “I do not intend to recite any further evidence but in making my decision I have considered all the evidence in the round”.
11. Although I accept that the judge did not refer to the copies of the sponsor’s driving licence, I am not persuaded that the judge made a material error of law. First, the judge was not required to refer to all of the evidence provided in support of the appellant’s case. Second, even if this evidence was missed by the judge, I am unable to accept Mr. Da Silva’s submission that taken together with the tenancy agreement it was sufficient to demonstrate that there was a durable relationship between the appellate and sponsor by 31 December 2020. I agree with Ms. Clewley that a driving licence in the name of the sponsor only shows the sponsor was connected to the address in 2019, but it does not establish that the appellant and the sponsor had been in a durable relationship at the relevant time.
Ground 3
12. The third ground of appeal is that the judge failed to give adequate reasons when rejecting the oral evidence. At the hearing before the Upper Tribunal Mr. Da Silva submitted that the sponsor and the appellant had been consistent in their oral evidence that the sponsor constantly travelled between Belize and the UK and the judge had not had regard to this consistency in their evidence, which was relevant because a couple do not necessarily have to be living together for a relationship to be considered as durable. Ms. Clewley, submitted that the judge at [20] had expressly acknowledged that a couple do not need to be living together for a relationship to be durable, and had reasonably relied upon the absence of any evidence of communications between them prior to the specified date. Ms. Clewley submitted that even if the sponsor had frequently travelled between Belize and the UK there would have been at least some communication during periods of separation, and it had been reasonably open to the judge to reject the oral evidence in relation to the durability of the relationship prior to December 2020, and adequate reasons for so doing had been provided by the judge.
13. Although it is well established that a duty to give reasons may amount to an error of law: (MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) [7 – 12], the Upper Tribunal should exercise judicial restraint and should not assume that the judge had misdirected themselves because not every step in its reasoning is fully set out: see Yalcin and HA (Iraq) and Ullah v SSHD [2024] EWCA Civ 201, Green LJ at [26] referring to R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, at [25]. In Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC) the Upper Tribunal referred to Lord Phillips MR in English v Emery Reimbold & Stick (Practice Note) [2002] EWCA Civ 605, who summarised the duty to give reasons as follows:
“19. [The duty to give reasons] does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the matter in which he resolved them explained”.
14. In this appeal, the judge gave reasons for accepting some parts and rejecting other parts of the oral evidence. At [21] read with [14] the judge accepted that “a reasonable explanation has been given” in relation to why the appellant and sponsor were “unable to provide any bills or documentation relevant to [the property] in their joint names or, in the Appellant’s name for that period” because the “Sponsor paid the bills” and that they both had separate personal bank accounts.
15. However, at [20] the judge found “both the Sponsor’s and the Appellant’s oral evidence to lack credibility in regard to their relationship being a durable partnership at the specified date”. The judge explained that this was “particularly in relationship to the Sponsor’s evidence” and referred to the sponsor having applied for pre-settled status prior to the end of 2020 but the judge not having been told when he was granted pre-settled status. The judge reasoned, “it can only be inferred that he must have produced at that time for it to be granted evidence of his residency in the UK”. Again at [20], the judge set out as an additional reason for rejecting the oral evidence regarding the relationship being durable by the specified date, namely the lack of any evidence of any contact between the appellant and sponsor whilst they were apart. The judge recorded that the sponsor had sought to explain this “because he was constantly travelling between Belize and the UK”. However, this explanation was not accepted by the judge, who also noted the absence of a stamped copy of a passport from the sponsor, and observed that the copy of the passport provided by the appellant only recorded travel in 2023 and not before.
16. As noted in para [3] above, the judge did not conclude that the appellant and sponsor were not in a relationship but significantly for the outcome of this appeal, did not conclude that the couple had been in a durable relationship by the specified date. As noted in relation to Ground 2, it is important to exercise restraint before interfering in a decision made by a First-tier Tribunal judge who has had the benefit of hearing and considering all the evidence. As can be seen from the extracts from the Decision noted in the paragraph [15] above, the judge did provide reasons for rejecting the oral evidence given in relation to the relationship being durable by the specified date and although the appellant disagrees with the judge’s assessment of the evidence, I cannot conclude that the reasons given by the judge were either absent or inadequate. I therefore do not find any error of law in relation to Ground 3.

Notice of Decision
1. The decision of First-tier Tribunal judge MM Thomas, dated 10 May 2025, does not contain an error of law. The error of law appeal is dismissed and the First-tier Tribunal decision is upheld.

K. Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 March 2026