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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005556 |
|
First-tier Tribunal No: EU/50526/2024 LE/03763/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 6 th of May 2025
Before
UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE SMEATON
Between
ANTONINO KAPINALA SACATO CALANDULA
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr Broachwalla (counsel, instructed by ICS Legal)
For the Respondent: Ms Tariq (Senior Presenting Officer)
Heard at Field House on 23 April 2025
DECISION AND REASONS
1. The Appellant appeals with the permission of the Upper Tribunal ('UT') (Judge Owens) against the decision of the First-tier Tribunal ('FtT') (Judge Greer). By his decision promulgated on 24 September 2024 ('the Decision'), Judge Greer refused the Appellant's appeal against the Respondent's refusal of his claim for leave to remain under the EU Settlement Scheme ('EUSS').
Background
2. The Appellant is a national of Portugal currently resident in the UK. It is not in dispute that he has been in a relationship with his unmarried partner, Rute Louisa Correia, since 2014 and that they lived together in Portugal prior to 31 December 2020 ('the Specified Date'). Ms Correia naturalised as a British citizen on 20 October 2011. Her nationality prior to that date is unclear but is not material to this appeal.
3. At a date unknown but prior to 25 May 2021, the Appellant applied from Portugal for leave to enter the UK under the EUSS. The Appellant was unrepresented at the time. It is not clear from the application form on what basis he said he met the requirements of Appendix EU but it is clear that he was not applying in his own right as an EEA national resident in the UK prior to 31 December 2020 ('the Specified Date'). He relied on his relationship with Ms Correia.
4. The Respondent considered the application under rules EU11 and EU11A of Appendix EU. The application was refused on 20 October 2021 on the basis that the Appellant was not the durable partner of a relevant EEA citizen because Ms Correia was an Angolan citizen who became a naturalised British Citizen on 20 October 2011.
5. On 14 November 2021, the Appellant made an application for an Administrative Review of the refusal. Again, the basis upon which the Appellant maintained that he met Appendix EU was not clear.
6. The Appellant maintains that, as part of the Administrative Review process, he submitted a number of documents demonstrating that Ms Correia was in the UK prior to 2300 GMT on 29 March 2022 ('the Material Date'). The Respondent does not accept that the documents were submitted as alleged. We return to this below.
7. On 5 January 2024, the original decision was withdrawn and a new decision was made refusing the application on different grounds. The Respondent repeated that Ms Correia was not a 'relevant naturalised British citizen' because there was no evidence to demonstrate that she was an EEA national prior to becoming a naturalised British Citizen. The Respondent also treated the application for Administrative Review as raising an argument that the Appellant was entitled to leave under Appendix EU in his own right as an EEA national and refused the application on the basis that he was not resident in the UK prior to the Specified Date. It is not, however, and has never been, the Appellant's case that he satisfies the Immigration Rules in this respect.
8. At no point did the Respondent consider the application on the basis that the Appellant was the unmarried partner of a Qualifying British Citizen.
The appeal to the FtT
9. The Appellant appealed to the FtT. By that point he was in the UK.
10. In the 'Appeal Reasons', the Appellant asserted that the Respondent was wrong to refuse his application because, when he started his relationship with his partner in 2014, she was an EEA citizen. No evidence was brought to our attention in support of that assertion and it is not a point that was pursued by Mr Broachwalla. The Appellant did not suggest in his Appeal Reasons that his application should have been granted on the basis that he was the unmarried partner of a Qualifying British Citizen.
11. The Appellant asked that the appeal be heard on the papers.
12. The appeal was heard by FtT Judge Greer, sitting at Taylor House IAC, on 24 September 2024. The Appellant remained unrepresented at that time. He did not provide an Appellant's bundle. The Respondent provided a bundle for the FtT hearing which included various documentary evidence but nothing demonstrating Ms Correia's residence in the UK prior to 29 March 2022.
13. In the Decision dismissing the appeal, Judge Greer:
13.1. recorded that it was not in dispute that the Appellant is the durable partner of a British Citizen or that the relationship started in 2014;
13.2. identified the sole issue for determination as being whether the Appellant is the family member of a qualifying British Citizen for the purpose of Appendix EU;
13.3. found that there was no documentary evidence that Ms Correia had returned to the UK prior to the Material Date; and, accordingly
13.4. concluded that the Appellant did not meet Appendix EU of the Immigration Rules.
The appeal to this Tribunal
14. The Appellant appealed to this Tribunal. By that point, he was represented by his current representatives.
15. No specific error of law is identified in the grounds of appeal. The Appellant maintained that evidence demonstrating that Ms Correira was in the UK prior to the Material Date had been submitted as part of the application and the application for Administrative Review, but not uploaded to the FtT due to the Appellant's misunderstanding of the procedure rules.
16. The Respondent also made an application under rule 15(2A) of the Tribunal Procedure (UT) Rules, seeking to rely on that evidence.
17. Permission to appeal was granted by Judge Owens. She noted that there was evidence of the sponsor paying rent and council tax in the UK prior to 29 March 2022 and using a bank account in the UK prior to that date. She found it arguable, in light of the Appellant's assertion that that evidence was before the Respondent prior to the Administrative Review decision and that the Appellant attempted to upload it onto the system (n.b. this last part is not accurate) that there had been procedural unfairness.
18. The matter was listed for hearing before this Tribunal (UT Judge Bulpitt and DUTJ Smeaton) on 23 April 2025.
19. We heard submissions from both representatives. We do not propose to rehearse the submissions made here, but will consider what was said during our analysis of the appeal.
Analysis
20. This appeal has a complex and confusing history. Without seeking to apportion blame, we note that both parties are partially responsible for that confusion. The Appellant did not make clear in either his original application or his application for Administrative Review, the basis upon which he claimed to meet the eligibility requirements of Appendix EU. We note, however, that Appendix EU can be extremely difficult to navigate, even for legal representatives.
21. The Respondent complicated matters by failing on two occasions to consider the Appellant as the family member of a Qualifying British Citizen. Ms Tariq conceded at the hearing that that should have been the basis upon which the Respondent approached the application and no reason was given for why that had not been done.
22. Accordingly, the first time that the application was considered on what the parties now agree to be the correct basis, was at the hearing before Judge Greer.
23. Neither party suggested to us that Judge Greer was wrong to proceed as he did, notwithstanding that the Appellant had not expressly claimed to be eligible for leave as the family member of a qualifying British Citizen and notwithstanding that the Respondent had not considered the application on that basis.
24. Although no challenge was made to Judge Greer's approach in this respect, the consequence of it is that the Appellant had had no prior notice of the issue found by the FtT to be in dispute or of the evidence which was said to be required or missing. In the circumstances, his failure to provide the FtT with documents demonstrating Ms Correia's residence in the UK prior to the material date is unsurprising, particularly given the complex nature of Appendix EU, that English is not his first language, and that he was unrepresented.
25. Ms Tariq accepted at the hearing that under the EU-UK Withdrawal Agreement (see article 18(1)(e)) the Respondent has an obligation to facilitate applications made under the EUSS. This includes an obligation to provide applicants with the opportunity to correct or supplement their application. The Respondent did write to the Appellant on 16 November 2023 asking for additional evidence that he was resident in the UK prior to 31 December 2020 and had been continuously resident in the UK since that date but, as set out above, that was not (and has never been) the Appellant's case. The Respondent did not write to the Appellant asking for evidence of Ms Correia's residence in the UK prior to the Material Date because the application was never considered by the Respondent on that basis.
26. Given that the matter was dealt with by Judge Freer on the papers, there was no opportunity at the hearing for the Judge to clarify the issues with the parties or to explore with the Appellant or Ms Correia the question of where Ms Correia was living at the Material Date.
27. Against that background, the appeal to this Tribunal was primarily pursued by Mr Broachwalla on a 'procedural unfairness' basis.
28. During the discussions, we canvassed with the parties whether the appeal was more appropriately characterised as a 'mistake of fact leading to unfairness' challenge, applying the approach in E and R v SSHD [2004] EWCA Civ 49; the mistake of fact being the conclusion that there was no evidence of Ms Correira's residence in the UK prior to the Material Date. The evidence provided before us appeared to show that Ms Correira was in the UK at the material time, and both parties initially appeared to agree with Judge Greer that this was the sole issue in the appeal. Mr Broachwalla agreed that the appeal could be characterised in this way.
29. When discussing this with the parties, however, Ms Tariq submitted that, if an error of law were to be found, the matter should be remitted to the FtT. She noted that the Respondent had not yet had the opportunity to consider the additional evidence and was not in a position to say whether it did or did not determine the appeal in the Appellant's favour. In that way, she resiled somewhat from the position that Judge Greer was right to narrow the issues in the way he did (to one sole point of dispute). We are concerned that the Respondent has not yet made a decision on whether Ms Correira satisfies the definition of a Qualifying British Citizen and whether the Appellant satisfies the requirements for leave as a family member of a Qualifying British Citizen. Accordingly, and in the absence of any clear concessions from the Respondent, we have considered this appeal on the basis of the appeal ground originally pursued by Mr Broachwalla, procedural unfairness, only.
30. Mr Broachwalla's primary submission was that the additional evidence demonstrating Ms Correira's residence in the UK was before the Respondent at the date of the Administrative Review (he clarified that, contrary to his skeleton argument and the Appellant's witness statement, it had not been submitted as part of the initial application). He was not able to point to any evidence of this, beyond the Appellant's statement. He confirmed that the Appellant had not sought to upload it to the FtT's system prior to the hearing before Judge Greer. His position was, in summary, that it was procedurally unfair for the appeal to be dismissed given that the Respondent was in possession of evidence which demonstrated Ms Correira's residence in the UK at the Material Date. He did not seek to criticise Judge Greer but maintained that the decision could not stand.
31. Ms Tariq accepted that Judge Greer had properly identified the correct legal provisions relevant to the appeal. Subject to what we say above, she did not appear to take issue with Judge Greer narrowing the issues in the way he did and proceeding on the basis that the remaining requirements of Appendix EU/regulation 9 of the Immigration (EEA) Regulations 2016 were met. She did not, however, accept that the additional evidence had been submitted with the Administrative Review, as alleged. She referred to the evidence identified in the Administrative Review decision and maintained that that was the totality of the evidence before the Respondent at the material time.
32. There was insufficient evidence before us to reach a conclusion on whether the evidence had been provided to the Respondent as part of the Administrative Review. We note that the Appellant's evidence on this has been inconsistent (he said in his statement that it was provided with the original application and corrected that at the hearing before us). Equally, we do not accept Ms Tariq's submission that the documents which were provided are clearly set out in the Administrative Review decision. We note that the Administrative Review decision does appear to refer to documents from 2022 which were not reproduced in the Respondent's bundle at the FtT. The absence of the documents relevant to Ms Correia's residence in the UK at the Material Date could be explained either on the basis that the documents had not been produced by the Appellant or on the basis that the Respondent did not consider them relevant given the way in which she approached the application.
33. In the circumstances, however, we did not consider the matter to be material to our decision.
34. Notwithstanding that both parties agree that Judge Greer correctly identified the basis for the application, we find that it was procedurally unfair for him to dismiss the appeal on a ground not previously relied upon by the Respondent and in circumstances where the Appellant had no proper opportunity to respond to the point or provide the missing evidence. This is so even if the Respondent is correct and the additional evidence had not been submitted by the Appellant as part of the Administrative Review. We take into consideration the fact that the Appellant was unrepresented, that Appendix EU is difficult to navigate, that the Respondent does not appear to have facilitated the Appellant's attempts to make the correct application, and that the Respondent accepts that she did not consider the application properly initially. We also note that the error cannot be rectified by a new application, given that the route upon which the Appellant relies is now closed.
35. Whilst no criticism is made of Judge Greer, who was trying to navigate a complex, and poorly managed application, the resulting decision contained a material error of law and must be set aside.
36. In the circumstances, it is not necessary for us to determine the application made under rule 15(2A) of the UT Procedure Rules. The Appellant will have the opportunity to submit new evidence as set out below.
Notice of Decision
37. The Decision of FtT Judge Greer dated 24 September 2024 involves the making of an error of law. The Decision is set aside and remitted to the FtT to be reconsidered. We make the following directions for the re-making of this appeal.
DIRECTIONS
38. By 4pm on Wednesday 4 June 2025, the Appellant shall file with the Tribunal and serve on the Respondent any further evidence on which he wishes to rely at the re-hearing together with an Appeal Skeleton Argument addressing the issue in dispute which is as follows:
38.1. Did the Appellant satisfy the requirements for leave under Appendix EU as a family member of a Qualifying British Citizen?
39. By 4pm on Wednesday 2 July 2025, the Respondent shall carry out a review of the decision dated 5 January 2024, setting out the position on the issue in dispute as now clarified between the parties.
40. The hearing will be listed before any judge at the FtT on the first available date after Tuesday 2 August 2025, face to face, with a time estimate of ½ day.
41. The Appellant is to notify the FtT by no later than 4 June 2025 if an interpreter is required for the resumed hearing.
J. SMEATON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
2 May 2025