Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000518
First-tier Tribunal No: EA/002289/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

USMAN AKINOLA AJOSE
Respondent

Representation:

For the Appellant: Mr Simpson, Senior Presenting Officer.
For the Respondent: No Appearance (Litigant in Person).

Heard at Field House on 10 April 2026

DECISION AND REASONS
INTRODUCTION
1. The SSHD appeals against the Decision of First-Tier Tribunal Judge S. Adcock-Jones, promulgated on 30 December 2025 (“the Decision”), allowing the Appellant’s appeal against the SSHD’s decision dated 15 April 2022 (“RFRL”), refusing the Appellant’s EUSS application under Appendix EU dated 7 January 2022.
2. For ease of reference, from here on in I shall refer to the parties as they were before the First-tier Tribunal.
BACKGROUND
Application
3. On 7 January 2022 the Appellant, a Nigerian national, submitted an application under the EU Settlement Scheme for pre-settled status as the spouse of Klaudia Lakatos, a Hungarian national who had applied under the EUSS scheme. The Appellant claimed in his application that he had entered the UK on 10 September 2020; was in the UK on 31 December 2020; had not been outside the UK for more than 6 months since that time; was in the UK at date of application; did not have a residence card; did not have ILR; and was not aware of any deadline for the application.
RFRL
4. On 15 April 2022, the SSHD refused the Appellant’s application under both the settled (EU11) and pre-settled (EU14) routes of Appendix EU.
5. Under EU11, the SSHD noted the requirement of 5 years continuous residence as the family member of a relevant EEA citizen but found that,
“You have not provided any evidence to confirm that you or your EEA sponsor were resident in the UK and Islands prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). Therefore, you do not meet the requirements for settled status on the basis of a continuous qualifying period.”
6. Under EU14, the SSHD noted the requirement of a continuous period of residence of less than 5 years, but found,
“You have not provided any evidence to confirm that you or your sponsor were resident in the UK and Islands in the 6 months prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). We have therefore been unable to confirm that you are currently completing a continuous qualifying period of residence in the UK and Islands.”
7. The RFRL goes on to state that attempts to contact the Appellant were made on 24 March 22 and 8 April 2022 to ask for the evidence of residence without success.
Decision of First-tier Tribunal Judge S. Adcock-Jones dated 30 December 2025
8. On 16 December 2025, the Appellant’s appeal against the RFRL came before FTIJ Adcock-Jones as a paper case. At paragraph [2], the FTIJ noted that the Appellant was singularly pursuing his appeal on the basis that he met immigration rule EU14 of Appendix EU.
9. At paragraph [3] the FTIJ notes that the Appellant raised Article 8 ECHR in his grounds of appeal but finds that this is a new matter which he has no jurisdiction to consider.
10. After setting out the relevant legal framework for his consideration of the issues at paragraphs [6] – [8], and noting at [7] that “the material date for my assessment is 7 January 2022”, at paragraphs [9] – [13] the FTIJ makes the following salient findings of fact:
• [9] The Appellant provided a Hungarian ID for his spouse, and a marriage certificate dated 14 December 2020,
◦ “I am therefore satisfied that the Appellant meets the initial requirement of EU14 as being a family member, in this case the spouse, of a relevant EEA citizen.”

• [10] The issue before the Tribunal is whether “they have completed a continuous qualifying period of residence in the UK of less than five years before the specified date” at 2300 on 31 December 2020.
◦ The FTIJ then confirms the entirety of the Appellant’s evidence of residence as follows:
▪ A tenancy agreement in the names of the Appellant and sponsor dated 1 December 2020.
▪ An undated Covid vaccination letter addressed to the Appellant at the same address as the tenancy agreement.
▪ A letter addressed to the sponsor dated 20 January 2022.

• [11] The FTIJ finds that whilst the evidence of residence before the specified date is limited, it is on balance enough to demonstrate that the Appellant and sponsor were resident as claimed. In so doing the FTIJ finds as follows:
◦ The tenancy agreement proves that the Appellant and sponsor had a contractual right to reside in the UK for “at least one month before the relevant date.
◦ The address in the tenancy was used by the Appellant and Sponsor as evidenced by the other correspondence submitted.
▪ The covid letter, whilst undated is addressed to the tenancy address
▪ The letter to the Sponsor dated January 2022 shows that the address was still being used by the Appellant and Sponsor 2 years after the tenancy was entered into.
◦ It is therefore more likely than not that the Appellant and sponsor were resident in the UK prior to the relevant date and continue to do so.

• [13] The Appellant therefore meets the requirements of EU14.
Grant of PTA and Grounds of Appeal
11. On 26 January 2026, FTIJ Burnett granted the SSHD permission to appeal the Decision of FTIJ Adcock- Jones without restriction. However, Judge Burnett found that the ground’s contention at paragraph [3], that the marriage was not valid, had not been raised previously and as such, it was not appropriate to raise it now.
12. In this regard, Mr Simpson confirmed before me that paragraph [3] of the grounds was now no longer pursued.
13. In grounds of appeal settled by L J Carroll of the Home Office Specialist Appeals Team dated 30 December 2025, the SSHD advanced one ground of appeal. In the light of Mr Simpson’s concession, I set out the salient paragraphs as follows:
Ground 1: Failing to give adequate reasons for findings on a material matter: cohabitation
1. At [10] of this brief determination the FTTJ has regard to the evidence that that appellant and sponsor claim show that they were living together prior to the relevant date, 31/12/2020. The evidence is particularised as a tenancy agreement dated 1/12/2020, an undated letter to the appellant concerning a covid vaccination and a letter to the sponsor dated 21/1/2022. It is submitted that a tenancy agreement on its own does not demonstrate that the appellant and sponsor were living together, merely that they have produced a tenancy agreement purporting to have been signed on the date claimed. The undated letter does not further the appellant’s claim, neither does the letter dated 21/1/2021 to the sponsor. The FTTJ has failed to consider t [sic]
2. At [11] the FTTJ makes a finding that the sponsor and appellant were resident together in the UK prior to the relevant date based on that evidence. It is submitted that in making this finding that the FTTJ has failed to have regard to the evidence contained in the respondent’s bundle which containing contractor evidence of the appellant’s and sponsor’s evidence. A Nigerian proxy marriage certificate dated 17/12/2020 states that both parties were living in Leicester, whereas the tenancy agreement is for an address in London. It is submitted that the FTTJ has erred in making a finding based solely on the tenancy agreement and has failed to resolve this discrepancy in crucial evidence. Furthermore, the FTTJ has failed to note that if the appellant and sponsor were genuinely living together as claimed there would be further evidence to place them at the property, for example, utility bills, council tax bills, bank statements etc.
3. [……]
14. There was no Rule 24 reply.
15. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
ERROR OF LAW HEARING
Preliminary Matters
16. Unfortunately, when this matter came before me, the Appellant made no appearance. As such, I put this matter to the back of the list whilst the Tribunal Clerk made attempts to contact him.
17. Under rule 38 of The Tribunal Procedure (Upper Tribunal) Rules 2008 I am entitled to proceed with a hearing in the absence of a party in the following circumstances,
38. 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.
18. When this matter was called back on, the clerk advised that she had been unable to contact the Appellant using the email and telephone number held on the court file. I am further satisfied that the notice of hearing was served on the Appellant on 3 March 2026 at the postal and email addresses held on file and that there is nothing on Ce-File to suggest that the Appellant has informed the Tribunal of any change in contact details.
19. I am therefore satisfied that reasonable steps have been taken to notify the Appellant of this appeal hearing and find that r.38(a) is met.
20. I find that the Appellant has provided no explanation for his absence, he has served no response to the SSHD’s grounds of appeal, nor has he served any further evidence or made any suggestion about disposal should a material error of law be found. In short, it appears that the Appellant is disinterested in the outcome of today’s appeal hearing. I therefore find that it is in the interests of justice to proceed to hear this appeal in his absence and that r.38(a) is also met.
21. I then ensured that Mr Simpson had a copy of the Upper Tribunal consolidated hearing bundle before him, consisting of 66 pages (“CB”) and the 19-page IAFT-5 notice of appeal to the First-tier Tribunal.
LAW
22. For the purposes of the pleaded grounds of appeal before me, I set out the essential legal framework as follows:
Immigration Rules at the date of RFRL on 15/4/22
Appendix EU
Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen
EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, condition 1 or 2 set out in the following table is met:
Table
1. (a) The applicant is:
[…..]
(ii) a family member of a relevant EEA citizen;
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen
Annex 1
Family member of a relevant EEA citizen
a person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(a) the spouse or civil partner of a relevant EEA citizen, and:
(i) the marriage was contracted or the civil partnership was formed before the specified date; or
[….]
in addition, where the applicant does not rely on meeting condition 1, 3, or 6 of paragraph EU11 of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen, the family relationship continues to exist at the date of application
Continuous Qualifying Period
a period of residence in the UK and Islands […..]
(a) which, unless the person is a joining family member of a relevant sponsor, is a relevant EEA family permit case, is a specified relevant person of Northern Ireland (or is the dependent relative of such a person) or relies on sub paragraph (b)(i)(cc), (b)(i)(dd) or (b)(i)(ee) below, began before the specified date; and
(b) during which none of the following occurred […..]
(c) which continues at the date of application [……]
DISCUSSION
23. The singular issue before the FTIJ was whether the Appellant had resided in the UK with his sponsor from before the specified date until the date of application. The main thrust of the grounds at paragraph [2], as expanded upon by Mr Simpson in his very able submissions, is that the Judge materially erred at paragraph [11] when finding that the documentary evidence demonstrated that the Appellant had lived at the tenancy address since before the specified date and continued to do so. This was because the FTIJ had failed to take into account the other evidence before him confirming that the Appellant was associated with a different address during the continuous qualifying period when reaching his conclusions.
24. In this regard, as set out above, in the Decision at [10] the FTIJ identifies the tenancy agreement dated 1 December 2020, an undated covid letter and a letter addressed to the sponsor after the specified date in January 2022, as the totality of the evidence of residence before the specified date. At [11] the FTIJ then finds,
“[…..] the tenancy agreement which is dated 1 December 2020 proves that the Appellant and his sponsor had a contractual right to reside at a UK address for at least one month before the relevant date. Furthermore, I am satisfied that that address was used by the Appellant and his sponsor by virtue of the additional correspondence which has been provided in support of the appeal, the covid vaccination letter, whilst undated, is addressed to the Appellant at the tenancy address, likewise the letter addressed to the sponsor dated January 2022 shows that the address was still used by the Appellant and sponsor over two years after the tenancy was entered into. I am therefore satisfied that it is more likely than not that the Appellant and his sponsor were resident in the UK prior to the relevant date and continue to do so.”
25. However, I find that the FTIJ was in error when finding that this was the totality of the residence evidence before or after the specified date. In this regard, the bundle of evidence before the FTIJ, in chronological order contains the following:
• At CB [59] is an assured shorthold tenancy agreement dated 1 December 2020 in the Appellant’s and sponsor’s names for, Flat 5 Latimer, Beaconsfield Rd, London SE17 2EN.
• At CB [56] is a “sworn affidavit on declaration of marriage” issued by the Customary Court of Oyo State of Nigeria dated 17 December 2020. The affidavit identifies the Appellant’s address as 5 Wilnicott Rd, Leicester LE3 2TE.
• At CB [63] an undated coronavirus vaccination letter addressed to the Appellant, identifies his address as Flat 5 Latimer, Beaconsfield Road London SE17 2EN.
• At CB [42] the Appellant’s EUSS application dated 7 January 2022, identifies the Appellant’s address as 5 Wilnicott Rd, Leicester LE3 2TE.
• At CB [66] a Community Fibre broadband letter dated 20 January 2022 addressed to the sponsor at Flat 5 Latimer, Beaconsfield Rd, London SE17 2EN.
• In a separate IAFT-5 appeal document dated 7 October 2024, the Appellant’s address is identified as Flat 5 Beaconsfield Rd, London SE17 2EN.
26. I find that nowhere does Judge Adcock-Jones acknowledge the Appellant’s association with the Leicester address in the various documents, in addition to London address identified in the tenancy agreement. I find it plain that these two addresses are referred to intermittently between 1 December 2020 and 20 January 2022, including before the specified date. As such, I am satisfied that the FTIJ erred by failing to take into account the evidence of the Leicester address and accordingly failed to give adequate reasons for accepting that the Appellant and sponsor had lived at the same address since before the specified date and continued to do so.
27. When considering the materiality of this error I am mindful of the test for materiality enunciated at [43] of ASO [2023] EWCA Civ 1282,
“Whether it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion'.”
28. Given the absence of any reasoning relating to the Leicester address, and the general paucity of evidence of residence before the First-tier Tribunal, I find that I cannot be satisfied that any rational Tribunal would inevitably have found that the Appellant resided in the UK throughout the continuous qualifying period as claimed.
CONCLUSION ON ERROR OF LAW
29. For the reasons above, I find that the Decision of First-tier Tribunal Judge Adcock-Jones contained a material error of law and must be set aside.
DISPOSAL
30. Having regard to the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), the Appellant’s failure to engage with the appeal at the Upper Tribunal and the absence of any further evidence being submitted to clarify the central issue in dispute, I find it appropriate to retain the appeal in the Upper Tribunal and remake the Decision pursuant to s.12(2) of the 2007 Act.
REMAKING
31. Under s.12(4)(a) and (b) of the 2007 Act, the Upper Tribunal can, when remaking a decision of the First-tier Tribunal which has been set aside, make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and it may make such findings of fact as it considers appropriate.
FINDINGS
32. Under regulation 3(1)(c) of The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (the “EU Exit Regs”) the Appellant,
“May appeal against a decision made on or after exit day –
(c) not to grant any leave to enter or remain in the United Kingdom in response to P's relevant application”
33. As the decision under appeal is dated 15 April 2022, and exit day was at 11pm on 31 January 2020 (s.20 the European Withdrawal Act 2018), I am satisfied that the Appellant has a valid appeal before me.
34. Under regulation 8 of the EU Exit Regs, there are 2 available grounds of appeal. In summary, the first ground is that the decision under appeal is not in accordance with the Withdrawal Agreement and the second is that the decision under appeal is not in accordance with the provision of the Immigration Rules by virtue of which it was made. As noted by Judge Adcock-Jones, the grounds of appeal as contained in the IAFT-5 singularly argue that the Appellant meets the requirements of immigration rule EU14 of Appendix EU.
35. The burden of proof is upon the Appellant on the balance of probabilities.
Appeal under the Immigration Rules
36. The singular issue in dispute identified within the RFRL is whether the Appellant and sponsor resided in the UK prior to the specified date at 2300 on 31 December 2020. In this regard, I note that under rule EU14 the Appellant must demonstrate that this residence continued at the date of application on 7 January 2022 (the continuous qualifying period).
37. I find that the SSHD does not dispute that the Appellant’s marriage is valid.
38. I find conflicting evidence before me of the Appellant’s alleged address before the specified date. This evidence is limited to an assured shorthold tenancy agreement dated 1 December 2020 in the Appellant’s and sponsor’s names at Flat 5 Latimer, Beaconsfield Rd, London SE17 2EN (CB [59]), and a “sworn affidavit on declaration of marriage” issued by the Customary Court of Oyo State of Nigeria dated 17 December 2020, evidencing the Appellant’s address as 5 Wilnicott Rd, Leicester LE3 2TE (CB [56]).
39. This is the only evidence of residence before me to suggest that the Appellant and sponsor resided in the UK before the specified date. I find nothing in the papers before me to explain why the Appellant and sponsor entered into a tenancy agreement on 1 December 2020 at a London address, only for the Appellant to confirm that his address was in Leicester on 17 December 2020.
40. I appreciate that the validity of the marriage is not disputed, that married couples can individually live at different addresses for many reasons and that separate addresses are not fatal to whether the Appellant and sponsor were resident in the UK before the specified date.
41. However, in this case, residence is disputed, the Appellant has failed to explain the use of 2 addresses and there is no corroborating evidence of any kind before me demonstrating the Appellant’s residence at, or connection to the Leicester address. There is no tenancy agreement, evidence of ownership, evidence of residence such as bills, or evidence of who else may be residing there and their connection to the Appellant. I further note that there is nothing in the papers to suggest that the sponsor has any connection to this property.
42. In this regard, I am mindful that the RFRL put the issue of residence in dispute and that the burden of proof rests with the Appellant on the balance of probabilities.
43. After the specified date, I find that the Appellant’s EUSS application dated 7 January 2022 (CB [42]), further connects him to the Leicester address on 7 January 2022. However, only 13 days later on 20 January 2022, the Sponsor was receiving mail at the London address. Aside from the 1 December 2020 tenancy agreement, there is nothing in the papers to suggest that the Appellant had any connection to the London address between 1 December 2020 and 7 October 2024, when he submitted his IAFT-5.
44. Whilst the Appellant has provided a coronavirus vaccination letter addressed to him at the London address this is undated and in the light of the conflicting evidence regarding the Appellant’s address, on balance I am not satisfied that this letter is probative of his residence at the London address during the continuous qualifying period.
45. Accordingly, given the conflicting evidence of addresses, the failure to provide an explanation for the 2 addresses and the absence of any evidence corroborating the Appellant’s residence at the Leicester address, I am not satisfied that the Appellant has on balance demonstrated that he was continuously resident in the UK from before the specified date until the date of application.
46. In this regard, I am mindful that the Upper Tribunal Directions served upon the Appellant on 6 February 2026 made clear that “there is a presumption that, in the event of the Tribunal deciding that the decision of the FtT is to be set aside as erroneous in law, the re-making of the decision will take place at the same hearing”.
47. As such, on balance I am not satisfied that the Appellant has discharged the burden of proof to show that the requirements of immigration rule EU14 are met.
CONCLUSION
48. I therefore dismiss the Appellant’s appeal under the immigration rules.

NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Adcock-Jones involved the making of a material error of law and is set aside.
2. I remake and dismiss this appeal under the Immigration Rules.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 May 2026