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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-001252 |
|
First-tier Tribunal Nos: EU /52835/2023 LE/02010/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
9 th May 2025
Before
UPPER TRIBUNAL JUDGE BULPITT
UPPER TRIBUNAL JUDGE LOUGHRAN
Between
Maria Alisa Toma
(NO ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation :
For the Appellant: Ms S Ferguson, Counsel instructed by Richard Nelson LLP Solicitors
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
Heard at Field House on 16 April 2025
DECISION AND REASONS
1. The appellant appeals with the permission of the Upper Tribunal against the decision of First-tier Tribunal Judge Mulready ('the judge') dated 15 January 2025.
Background
2. The appellant, a citizen of Romania, applied on 17 February 2023 for EU Settlement Scheme leave on the basis that she qualifies for pre-settled status under Appendix EU to the Immigration Rules because she has been continuously resident in the UK for less than five years with that period of residence beginning before 23:00 GMT on 31 December 2020.
3. It is the appellant's case that she came to live in the UK on 6 December 2020, returned to Romania on 9 January 2021 for a permitted period of absence before coming back to the UK in November 2021 and has lived in the UK ever since.
4. On 18 April 2023 the respondent refused the appellant's application on the grounds that she had not provided sufficient evidence to confirm she was currently completing a continuous qualifying period of residence in the UK. The respondent was unable to verify personal photographs and images, to accept the personal photographs that she provided as evidence of her UK residency, to accept a flight booking without accompanying evidence of travel having being undertaken and to validate wage slips or other employment related documents without an accompanying valid national insurance number or accompanying ID. The respondent did not accept that the appellant came to live in the UK on 6 December 2020.
The appeal to the First-tier Tribunal
5. The appellant appealed against that decision and the appeal came before the judge on 12 January 2024.
6. The judge records the following being the sole issue in dispute between the parties:
"Is the appellant currently completing a continuous qualifying period of residence within the meaning of the appendix which started before 23:00 GMT on 31 December 2020? "
7. The appellant was represented by Mr S Hosen and the respondent was represented by Ms A John. The appellant, her two sisters and her two brothers-in-law all gave evidence.
8. In a decision dated 15 January 2024 the judge dismissed the appellant's appeal. The judge accepted that the appellant came to the UK on 6 December 2020. The judge noted that there was a lack of definition of "residence" in the immigration rules, but was not persuaded that it meant presence in the UK. The judge considered that the appellant was in fact resident in Romania on 6 December 2020 because her home, family and studies were there and she was only on holiday in the UK. The judge therefore did not accept the appellant began a continuous qualifying period of residence in the UK before 23:000 GMT on 31 December 2020. The judge found that the appellant therefore did not meet the relevant requirements of the Appendix EU and on that basis dismissed her appeal.
9. The appellant applied for permission to appeal to the Upper Tribunal relying on four grounds, which can be summarised as follows:
Ground 1: The judge erred in law by misdirecting herself and interpreted the immigration rules incorrectly
The judge misdirected herself in law by finding that the appellant was present in the UK, but not resident for the purpose of meeting the residence requirement under Appendix EU of the immigration rules.
Ground 2: The judge's findings are flawed, and procedurally unfair as sufficient reasoning not given and insufficient evidence to support the decision made.
The judge provided insufficient reasoning for dismissing the appeal.
Ground 3: The FTJ failed to consider core evidence in the bundle as well as relevant oral evidence.
The judge failed to have regard to relevant evidence addressing the appellant's absence from the UK.
Ground 4: The FTJ erred in law in failing to consider the provisions of the UK-EU withdrawal agreement.
The judge overlooked the rights afforded to the appellant under the Withdrawal Agreement.
10. The First-tier Tribunal refused the appellant permission to appeal. However the Upper Tribunal granted permission to appeal on the following basis.
"It is arguable that the First-tier Tribunal erred in finding that the appellant could not meet the requirements of Appendix EU for pre-settled status despite being present in the UK before 31 October 2020. It is further arguable that the reasons provided for that finding were inadequate."
11. The respondent and the appellant provided responses under Rules 24 and 25 of the Upper Tribunal Procedure Rules respectively.
12. On 9 April 2025 the respondent filed and served a skeleton argument, in which she changed her position and confirmed that she no longer wanted to rely on her Rule 24 response. The respondent accepted that the appellant's brief stay in the UK commenced a period capable of being continuously qualifying period stating:
"4. Having sought policy advice and considered the wording of the relevant rules, the Secretary of State no longer considers that any question arises as to whether the period 6 December 2020 to 9 January 2021 was capable of starting a CQP. Thus, Judge Mulready erred in law in conducting an exercise looking at the nature of that period and comparing ties here and in Romania. Simple presence was enough.
5. This approach is supported by the fact that the initial right of admission under the still valid regulation 13 of the 2016 Regulations transposing Article 6 of the Directive was termed "initial right of residence" (emphasis added) in the regulations."
13. The respondent therefore accepted that the judge materially erred in law.
14. The respondent identified in the skeleton argument that the only issue left to be determined was whether or not the appellant's absence from the UK (from 9 January 2021 - 28 November 2021) should be considered as a permissible absence for an important reason.
15. In response to the skeleton argument the appellant applied under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for permission to adduce further evidence in support of her appeal. That evidence included:
(1) an additional witness statement by the appellant. In the witness statement the appellant explained that her classes had ended in June 2021. However due to failing of certain subjects she was required to resit an exam in August 2021, after which she passed. She was unable to secure an appointment for her COVID vaccinations enabling her to travel until October 2021 and was subsequently required to wait a further two weeks for her second dose until November 2021.
(2) an email from the appellant's tutor Adriana Ciorcilã dated 11 April 2025, which confirmed that 4 June 2021 was the appellant's last day of school, but she had taken an exam on 20 August 2021;
(3) a copy of Adriana Ciorcilã's passport;
(4) a letter from Anghel Saligny Technological High School which purports to confirm the employment of Adriana Ciorcilã but is untranslated;
(5) an article from Euractiv entitled "Romania postpones vaccinations appointments due to shortage" which is dated 21 January 2021; and
(6) the appellant's COVID vaccine records showing a dose was administered on 13 November 2021.
Hearing and Discussion
16. At the hearing Mr Deller confirmed that as outlined in his skeleton argument it was the respondent's position that the judge had materially erred in law. He confirmed that the decision needs to be set aside. Accordingly, we set aside the decision of the First-tier Tribunal in its entirety.
17. We indicated to both parties that we were satisfied we could go on to remake the decision today and both parties confirmed that they were content for us to proceed in that manner.
18. Mr Deller confirmed that he had received the new evidence the appellant sought to rely on and had no objections to it being admitted. We therefore admitted the new evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
19. The parties agreed that although the judge had not addressed the issue of whether or not the appellant's absence from the UK should be considered as a permissible absence for an important reason, that issue had been identified by the parties before the hearing. The judge had not considered it because the judge had not got to that point. It was therefore agreed by the parties that it was the only remaining issue before us that we were required to determine.
20. Mr Deller informed us that having reviewed the new evidence the respondent was satisfied that the appellant's absence from the UK was for a good reason i.e. continuing her studies and in order to get vaccinated prior to her travel back to the UK.
21. We are satisfied that Mr Deller's concession was rightly made and the evidence established that the appellant's absence should be considered as permissible absence for an important reason. We therefore remade the decision allowing the appellant's appeal.
Notice of Decision
22. The decision of the First-tier Tribunal is set aside.
23. We remake the decision allowing the appellant's appeal.
G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber