Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000722
First-tier Tribunal No: EU/56391/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
31st July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

GIL COUTINHO
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Litigant-in-person (did not attend)
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at Field House on 14 July 2026

DECISION AND REASONS
1. The Appellant is a Portuguese national. On 4 October 2021 he made an application for status under Appendix EU of the immigration rules, i.e. the EU Settlement Scheme (EUSS), which was refused by the Respondent in a decision dated 28 February 2022. The Appellant sought Administrative Review which was refused on 8 August 2024, after which – as was his right – he pursued a statutory appeal.
2. Having elected not to have an oral hearing, the Appellant’s appeal was considered on the papers by FTJ Adcock-Jones at Taylor House on 6 November 2025. There was a 126-page Stitched Bundle generated by the FTT. The FTJ identified the central issue to be “whether the appellant meets the eligibility criteria for settled status or pre-settled status under rules EU11 and EU14 to Appendix EU of the Immigration Rules, specifically whether the appellant meets the continuous qualifying period of residency in the UK and Islands” [my emphasis added].
3. In a decision promulgated on 7 November 2025, the FTJ dismissed the Appellant’s appeal on the basis that he was not satisfied, on the balance of probabilities, that the Appellant was “resident in the UK … for the necessary continuous qualifying period as required by Appendix EU”.
The grant of permission
4. The Appellant applied to the FTT for permission to apply to the Upper Tribunal on six grounds. Permission was refused by FTJ RA Pickering on 4 February 2026. The Appellant renewed his application to the Upper Tribunal.
5. In a decision dated 27 March 2026, Upper Tribunal Judge Hirst granted permission on Grounds 1 and 2 only. She observed as follows:
4. In relation to Ground 1, the judge did not give any reasons for selecting 4 October 2021 as the ‘material date’ for his assessment, and it is unclear how that date was selected or how it related to the relevant provisions of Appendix EU or the issue which the judge was required to determine. That was an error which was arguably material to the judge’s consideration of continuous lawful residence.
5. Ground 2 is also arguable. Although the judge found (§10) that the Appellant had not demonstrated that Covid-19 was the reason for his absence from December 2019 to late 2020, he did not identify the evidence which was provided by the Appellant nor explain why he did not accept that evidence.
The error of law hearing
6. The Appellant did not attend at 10am on the day of the hearing. He had hitherto been engaging regularly with the Tribunal, including submitting a Bundle and even a Skeleton Argument on 7 July 2026. There had been no application for adjournment or any other notice. I asked the clerk to email him. I was informed by the clerk that, after the email at 10.26am, Mr Coutinho replied at 10.33am and said that he could not attend today. There was no explanation. I asked the clerk to telephone the Appellant and also check with the correspondence team. The clerk tried to call the Appellant three times over a period of 20 minutes. There was no answer. I remained in the hearing room until 11.21am at which point I decided to proceed in the Appellant’s absence. Mr Pugh agreed. I was given no further update as to the Appellant’s whereabouts or the reasons he had not attended. The hearing lasted until 12.15pm. I – and indeed Mr Pugh – sought to identify any arguments or issues which may have assisted the Appellant and which he is likely to have raised if he had attended.
My conclusions on Grounds 1 & 2
7. The ‘material period’ is not identified by the FTT in the determination: at paragraph 7 he states that “the material date for my assessment is 4 October 2021” and then, at paragraph 12, he states – obliquely/indirectly - that the period with which he is concerned is “the period of time highlighted by the respondent in the administrative review letter dated 8 August 2024”. When I turn to the AR letter to identify the “period of time”, the Home Office has identified a number of dates but with a particular emphasis on “your residency covering December 2020 and January to December 2021”.
8. There was a logic to this, although the FTJ never spelled it out: namely, that it was necessary for the Appellant to show, at the very least, that he met EU14 (for pre-settled status) by establishing his continuous residence in the UK from 31 December 2020 (the UK’s final departure from the EU) to 4 October 2021 (the date of his application for status). The
9. It was this period with which both the Respondent and the FTJ were concerned: the period from exit until the date of application. The “date of application” is expressly articulated in EU14 as being the point at which an applicant’s ability to meet “conditions” is evaluated. In the Appellant’s case, that meant the date of application (which fell 10 months after 31 December 2020) also framed the period in which the Respondent required the Appellant to prove that he remained continuously resident and was not outside the UK for more than 6 months in any 12-month period such that residence would have been broken prior to application. For that reason, the Respondent more than once invited the Appellant to provide evidence for that period, prior to the final decision to refuse.
10. This is a central issue because the Appellant’s Ground 1, on which permission was granted by UTJ Hirst on 24 March 2026, contended that “the FTT had wrongly treated 4 October 2021 as the ‘material date’ for his assessment of continuous lawful residence and erred by failing to take into account residence after October 2021”.
11. The grant of permission considered it arguable that “judge did not give any reasons for selecting 4 October 2021… and it is unclear how that date was selected or how it related to the relevant provisions of Appendix EU or the issue which the judge was required to determine”.
12. However, in my view the relevance of 4 October 2021 flowed from it being the date of application which is itself a material date embedded in the architecture of the immigration rules.
13. In order to qualify for pre-settled status under Appendix EU, the Appellant needed to satisfy the First-tier Tribunal that prior to 31 December 2020 he was resident in the UK until the date of his EUSS application of 4 October 2021, and that he had not been absent from the UK for a total of six months in any 12-month period, subject to the exceptions provided by the immigration rules.
14. It was for the Appellant to show that he met EU14 by establishing his continuous residence in the UK up to 4 October 2021 (the date of his application).
15. The immigration history appears to be as follows:
2019 Living in London and working for Deliveroo. Returned to Portugal for medical treatment.
3.2020 Covid-19 public health emergency which is said to have delayed his return to the UK.
22 December 2020: The Appellant may have flown from Portugal back to London (evidence of a purchased flight).
4 October 2021: The Applicant applied under EUSS and received a Certificate of Application. He continued to live and work in the UK thereafter.
16. In the original refusal letter dated 28 February 2022, the decision-maker stated that:
You have applied under the EU Settlement Scheme as an EEA national, who was resident in the UK prior to the specified date of 23:00 GMT on 31 December 2020, also known as pre-settled status. Under Appendix EU to the Immigration Rules to meet the requirements for pre-settled under rule EU14, you must have been a resident in the UK prior to the specified date of 2300 GMT on 31 December 2020 and have completed a continuous qualifying period of less than five years. The definition of a continuous qualifying period as per Appendix EU of the Immigration Rules is a period of residence in the UK and Islands which began before the specified date and during which an absence that has exceeded a total of six months within any 12-month period from the UK and Islands has not occurred
…
While there is evidence that you have resided in the UK periodically between July 2017 and July 2024, there is an absence in your residency which has exceeded a total of six months within any 12-month period from the UK and Islands between December 2020 and January 2022, thus you have broken your continuous qualifying period of residency in the UK and therefore, you are not eligible for a grant under the scheme.
17. While the refusal letter states that “there is an absence in your residency which has exceeded a total of six months”, presumably it ought to have said that, in the Respondent’s view, there was an absence of evidence to establish on balance of probabilities that the Appellant was resident (and not absent) for more than six months between 31 December 2020 and the date of application on 4 October 2021.
18. The evidence provided by the Appellant potentially relevant for the period covering 31 December 2020 to 4 October 2021 was: a flight ticket (in fact, with boarding pass confirmation) dated 22 December 2020 which was presumably served to show when the Appellant had returned to the UK after the first two phases of Covid-19 and a statement of fees for an HSBC account which remained open (but no bank statements per se for 2021).
19. The rest of the evidence, ranging from itemised bank statements to a tenancy agreement all related to 2022 onwards. This led the Respondent to ask for evidence for ongoing residence in 2021 itself, which was not provided; nor had it been provided at the time the FTJ decided the appeal on the papers.
20. My task is to decide whether FTJ Adcock-Jones erred in law in dismissing the appeal. On Ground 1, there is no error. As explained above, the FTJ was rationally concerned with the period between final Brexit date and the date of application and was not satisfied there was sufficient evidence of continuous residence throughout 2021. The FTJ was not also in a position to hear oral evidence in a live hearing (a procedural issue on which this Appellant has not been granted permission). The evidence that had been submitted was almost entirely for 2022 onwards but the FTJ was seeking to evaluate whether continuous residence had been broken before then.
21. As regards Ground 2, the grant of permission observed that “although the judge found (at 10) that the Appellant had not demonstrated that Covid-19 was the reason for his absence from December 2019 to late 2020, he did not identify the evidence which was provided by the Appellant nor explain why he did not accept that evidence”.
22. Ahead of the hearing itself, I issued Directions on 13 July 2026 to both parties, one of which was in the following terms: “the Appellant has provided a skeleton argument for the hearing: it refers to the FTJ failing to evaluate the evidence provided by the Appellant relevant to his absence from the UK and Covid-19 in 2020. Could the Appellant please identify the evidence he provided to the Home Office on his delayed return to the UK in 2020 and which he says was not considered by the First-tier Tribunal when it made its decision?”
23. The reason I did so was because, having carefully reviewed all the papers, I could not myself locate any evidence at all relating to Covid-19. In the absence of any evidence, there cannot be a criticism of the FTJ for failing to address it.
24. As of the error of law hearing on 14 July 2026, I had obviously still not been taken to any such evidence purportedly provided to the FTT.
25. The immigration rules state, under continuous qualifying period, that there cannot be an:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period, except for:
(aa) a single period of absence which did not exceed 12 months and was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting, or because of COVID-19); or
(bb) a single period of absence which did not exceed 12 months and which, although the absence was not originally for an important reason, is to be treated as being for an important reason as it exceeded six months because of COVID-19
26. At most it can be said that FTJ Adcock-Jones will have been aware that the Appellant left the UK at some stage in 2019 and then returned in December 2020 (the flight ticket/boarding pass). The FTJ would have been aware that the first phase of the Covid-19 public health emergency began in March 2020 and continued throughout the year, with a partial “opening-up” in the summer before a further lockdown. Certainly, people did face obstacles to returning to the UK, including the cost and difficulty of quarantine hotels, even when flights did resume. But the FTJ was right to comment that the Appellant had neither provided evidence to show that the pandemic was indeed the reason for the absence nor articulated in bare terms an account of that year.
Notice of Decision
There is no error of law in the FT determination and the appeal to the Upper Tribunal is dismissed.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 July 2026