Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000581
First-tier Tribunal No: EU/57470/2024
LE/00125/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of Juine 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GONZALO VALDES DAVILA
Respondent

Representation:
For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: In person

Heard at Field House on 8 April 2026

DECISION AND REASONS

Introduction
1. The Secretary of State appeals from the decision of the First-tier Tribunal dated 28 August 2025 allowing the Respondent’s appeal against the refusal of his application for settled status under the EU Settlement Scheme.
2. For the reasons set out below, I have concluded that the First-tier Tribunal’s decision involved the making of a material error of law. The decision is set aside and the appeal is remitted to the First-tier Tribunal for rehearing before a different judge.

Background
3. The Respondent arrived in the UK on 15 September 2017 with leave to remain as a student. His leave was subsequently extended to 25 October 2026.
4. On 24 September 2019 the Respondent, who was at the time a Mexican national, filed an application for Spanish citizenship with the Spanish Ministry of Justice. On 25 January 2021 that application was granted and on 3 April 2024 the Respondent obtained a Spanish passport.
5. On 2 June 2024 the Respondent applied for settled status under the EU Settlement Scheme (‘EUSS’). The application was refused on 23 September 2024 on the basis that the Respondent did not meet the eligibility requirements. Although the Secretary of State accepted that the Respondent was a Spanish citizen, he had not provided sufficient evidence to confirm that he had been a ‘relevant EEA citizen’ for the duration of his continuous qualifying period as defined in Annex 1 to Appendix EU to the Immigration Rules. For the same reason, the Respondent did not meet the requirements to be granted pre-settled status.
6. The Respondent appealed the decision and his appeal was determined by the First-tier Tribunal on the papers. The First-tier Tribunal judge found that, although the Respondent had not secured formal recognition of his Spanish nationality until after the qualifying period, he was nonetheless “a Spanish national by origin” from birth and had been a relevant EEA citizen for the purposes of Appendix EU throughout the qualifying period. The First-tier Tribunal allowed the appeal.
7. The Secretary of State was granted permission to appeal by the First-tier Tribunal on 7 February 2026 and the appeal came before me at an error of law hearing on 7 February 2026. Having heard submissions from the parties I gave my decision that the First-tier Tribunal had erred in law, the reasons for which are set out below.
Discussion and decision
8. The central issue in this appeal is whether the First-tier Tribunal erred in concluding that the Respondent had been, throughout the relevant qualifying period, “a Spanish national by origin” and therefore a ‘relevant EEA citizen’ for the purposes of Appendix EU to the Immigration Rules.
9. It was not in dispute before the First-tier Tribunal that the Respondent applied for Spanish citizenship in September 2019 or that he was formally granted citizenship on 30 November 2021. The basis on which the Respondent obtained citizenship under Spanish law was via Law 12/2015, which sets out a procedure for conferring citizenship on descendants of Sephardic Jews of Spanish origin who can prove their Sephardic origin and a sufficient connection to Spain.
10. Foreign law is a matter of fact, which must be proved by evidence: Hussein & Anor (Status of passports: foreign law) [2020] UKUT 250. In Hussein, the appellant, who was born in Somalia, claimed that he was not entitled to the Tanzanian passport in his name which he had used to enter the UK. The appellant’s arguments about Tanzanian nationality law were rejected by the Upper Tribunal, which noted at §9-10:
“…First, foreign law is a matter of fact and must be proved by evidence. It is not sufficient to produce Tanzanian statutes and assert that the statute represents the whole of the law on the subject. A moment's consideration shows why that is so: it is absurd to suggest that a person who had access to the Queen's Printer's copy of the British Nationality Act 1981 would be able to deduce reliably from it the status of any postulant for nationality: it has been subject to numerous amendments, and it says nothing about the operation of policy or prerogative. Foreign law needs to be proved by expert evidence directed precisely to the questions under consideration, so that the Tribunal can reach an informed view in the same way as anybody taking advice on an unfamiliar area of law. It is surprising that this well-known principle has apparently escaped the notice of the appellant's professional advisers: if authority is needed it can be found in CS [2017] UKUT 00199 (IAC).; see also R (MK) v SSHD [2017] EWHC 1365 (Admin) at [5]-[8]. There is no evidential basis in the present case for any of the arguments about Somali, Kenyan or Tanzanian law that were made before the First-tier Tribunal or in the grounds.
10. Secondly, there is no presumption of the continuance of nationality. There is a presumption about the continuance of domicile, but that is a totally different matter. On the evidence, a person who shows that he had a particular nationality at birth may not be subject to any serious challenge about still having that nationality, if there is no evidence to the contrary: but where there is evidence of a different nationality the matter has to be determined on the evidence, and in a refugee claim the burden of proof is on the claimant. In this case, it was and is for the appellant to establish to the requisite standard that he is at risk of persecution in any country whose nationality he has, and the starting-point is for him to establish his nationality.”
11. In the present appeal, the Respondent was required to show that he had been a ‘relevant EEA citizen’ throughout the qualifying period. The burden was therefore on the Respondent to adduce evidence proving that although he had formally acquired Spanish citizenship on 25 January 2021 he had nonetheless been a Spanish citizen by operation of law prior to that date.
12. The First-tier Tribunal considered the issue of the Respondent’s citizenship in a brief passage at §17-21 of the decision, as follows:
“17. Annex 1 defines an ‘EEA citizen’ as a person who is, and throughout any continuous qualifying period relied upon, was a national of the relevant EEA State. The appellant asserts that he was entitled to Spanish nationality from birth by descent.
18. On one view, entitlement to nationality is not equivalent to possession of nationality. The appellant did not apply for or secure recognition of his Spanish nationality until after the qualifying period relied upon. Accordingly, he cannot demonstrate that he was a Spanish national throughout that period.
19. On this view the definition is not satisfied as nationality is not formally held.
20. On another view, which on balance I prefer, the appellant has acquired Spanish nationality automatically at birth in law, notwithstanding that formal recognition was obtained at a later date – after the qualifying period. The appellant has demonstrated that he has the “status of a Sephardic Jew originally originating from Spain by descending from the families that were unjustly expelled or forced to convert to the catholic religion starting in 1442”.
21. It follows that, throughout the relevant period, the appellant was a Spanish national by origin. That status arising automatically at birth under Spanish law. The subsequent acquisition of documentary confirmation does not alter this position, since nationality by origin exists from birth and is not dependent on formal recognition, i.e. applying for nationality and obtaining relevant documentation.”
13. That passage of the First-tier Tribunal’s decision discloses a significant and material error. The appeal was determined on the papers. The Tribunal does not appear to have had before it a copy of Law 12/2015; it did not have any expert or other evidence about the operation of Spanish nationality law. Nor did the Tribunal have written submissions from the parties addressing the issue of whether, as a question of law, the Applicant had acquired Spanish nationality at birth. There was therefore no evidential basis on which the First-tier Tribunal could properly conclude (§21) that the Respondent’s status as a Spanish national was one “arising automatically at birth under Spanish law” or that “nationality by origin exists from birth and is not dependent on formal recognition”.
14. Further, even if there had been evidence as to the operation of Spanish nationality law, the First-tier Tribunal judge’s reasoning was not adequate to explain his conclusions. In particular, his reference at §18-20 to different “views” of entitlement to nationality was entirely unclear, and does not appear to have been based on the evidence before him. The judge did not explain where the two opposing views of nationality came from or why on balance he preferred the view that the Respondent’s nationality had been obtained by birth. Nor did the judge explain why the Respondent having demonstrated his Sephardic descent meant that he had been, as a matter of law, a Spanish citizen since birth.
15. The importance of the issue, and the materiality of the error, can be illustrated by analogy with British nationality law. The British Nationality Act 1981 provides for different routes by which British citizenship may be obtained. An individual may be a British citizen by birth under ss 1-2 of the Act; he may alternatively acquire British citizenship by registration under ss3-5 or may acquire it by naturalisation under s6 of the Act. However, an individual who is eligible to register as a British citizen does not become a British citizen unless and until he is registered as such; his British citizenship is not ‘backdated’ to the point at which he became eligible to register. Similarly, an individual who is eligible for citizenship by naturalisation becomes a British citizen from the point at which he is granted a certificate of naturalisation by the Secretary of State, not the point at which the applicant fulfils the requirements of Schedule 1 to the Act.
16. In this appeal there was before the First-tier Tribunal simply no evidence (expert or otherwise) which was capable of supporting any conclusion as to how Spanish nationality law operated in the circumstances of the Respondent’s case. The First-tier Tribunal judge therefore erred in concluding that, as a matter of Spanish law, the Respondent’s Spanish nationality had arisen automatically from birth. That error was plainly material as it went to the central issue in the appeal.
17. I therefore set aside the decision of the First-tier Tribunal. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a different judge with no findings preserved.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law. The decision is set aside.
The appeal is remitted to the First-tier Tribunal for a de novo hearing before a different judge with no findings preserved.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 June 2026