United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004929
	First-tier Tribunal No: EA/00734/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

19 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RASTOGI

 

Between

 

Klersa Karaxhuku

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Not present and not represented

For the Respondent: Ms S. Nwachuku, Senior Home Office Presenting Officer

 

Heard at Field House on 7 January 2025

 

 

­ DECISION AND REASONS

1.              The appellant appeals, with permission, the decision of First-tier Tribunal Judge Moffatt ("the judge") who dismissed her appeal against the respondent's decision to grant her leave to remain pursuant to the European Union Settlement Scheme ("EUSS"). The judge's decision is dated 15 August 2024.

2.              The appellant did not attend the hearing. She had sent an email to the Tribunal on 6 January 2025 explaining that she could not attend due to complications of pregnancy and asking for the hearing to proceed in her absence and for it to be allowed.

3.              At the outset of the hearing, Ms Nwachuku indicated she would be conceding the appeal. Notwithstanding my preliminary view that fairness may necessitate an adjournment, I decided that as the likely outcome was favourable to the appellant and as she had asked for the hearing to proceed without her, it was in the interests of justice to proceed with the appeal in her absence pursuant to rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

4.              Ms Nwachuku explained that she was conceding the appeal on the basis that the judge failed to deal with Ground 1 of the grounds of appeal before the First-tier Tribunal in which the appellant asserted a right of residence in her own right (rather than as a joining family member). Ms Nwachuku acknowledged that her position at the hearing was different to the position taken in the Rule 24 response but she did not think the author of that response had sight of the First-tier grounds.

5.              I accepted at the hearing that the concession was properly made. As to disposal, Ms Nwachuku confirmed she was not conceding that the appellant's appeal should be allowed on remaking, but she noted there was evidence to show the appellant was in the United Kingdom prior to the specified date. However, she submitted the original decision was correct at the time it was made because the appellant could not succeed on the basis on which she originally applied.

6.              At the end of the hearing, I formally reserved my decision.

Background to the Appeal

7.              The appellant is a national of Greece (and therefore an EEA national). Notwithstanding that fact, on 23 June 2021, she applied for status under the EUSS as the joining family member of a relevant sponsor, namely her parents. She sent various documents with her application including a boarding pass showing her entry to the UK on 18 December 2020 (see page 70 respondent's bundle (RB)) and Barclays bank statements in her name containing transactions from 22 December 2020 to 1 October 2021 (RB page 71).

8.              The respondent refused her application on 31 December 2021 on the basis that there was no evidence to show she was the "child of a relevant sponsor" on the basis that her parents do not meet the definition of "relevant sponsor" (RB page 6). The respondent did not find her to meet the requirements of Appendix EU of the Immigration Rules on that, or any other, basis.

9.              When the appellant applied for an Administrative Review of that decision, the respondent provided further justification for the refusal by way of a letter dated 26 February 2024 (RB page 10). The respondent explained that her parents could not be relevant sponsors as they were not in the UK before the specified date (11pm 31 December 2020) and they are, themselves, joining family members so not eligible to sponsor the appellant.

10.          The appellant exercised her right of appeal to the First-tier Tribunal against the respondent's refusal. The grounds on which she relied (see page 62 of the Hearing Bundle (HB)) made it clear that she had acquired Greek citizenship on 12 September 2017 and that she had moved to the United Kingdom before the specified date and had been here since. She claimed that the status of her parents is therefore irrelevant and the respondent failed to consider her evidence about her own rights of residency. In support of her position, she re-submitted the Barclays bank statements and boarding pass. The appellant asked for her appeal before the First-tier Tribunal to be decided without a hearing.

11.          In her decision, the judge treated the appellant's application to be on the basis of a 'joining family member' [2] and noted that her parents were not the correct sponsors but that her brother could have been [9] and [18-19]. The judge said in terms at [15] that at the date of application the appellant was not relying on her own residence in the UK although the judge said that at the date of application she was not in the UK although she was by the time of the administrative review. The judge noted the appellant could not change her sponsor [19] and would need to make a fresh application [20] and neither could she appeal on Article 8 grounds [22]. Therefore she concluded the appellant did not meet the requirements to show she was a joining family member of a relevant sponsor [24] and dismissed the appeal.

Error of Law

12.          Whilst the appellant initially applied on entirely the wrong basis and then compounded the position by electing not to come to the hearing to clarify her position, it was clear from the grounds and the documents on which she relied that the appellant was asserting an ability to meet Appendix EU in her own right.

13.          As the respondent rightly recognises, this was plainly in issue before the judge as it was clearly raised in the Grounds of Appeal. The same documents on which she relied in her appeal had been before the respondent at the time of the respondent's decision. In these circumstances, by failing to deal with an issue in the appeal the judge made an error of law, namely, failing to have regard to a material matter (the grounds of appeal) and/or misdirecting herself in law as she considered the wrong parts of Appendix EU. The error clearly went to the core of the appellant's appeal and therefore the decision is set aside pursuant to section 12(2) of the Tribunals, Courts and Enforcement Act 2007.

The Re-making of the Appeal

14.          Ms Nwachuku did not object to me proceeding to decide the appeal and the appellant specifically invited the Tribunal to do so in her email of 6 January 2025. Aside from one observation made on the appellant's supporting documents (see [19] below) Ms Nwachuku simply confirmed she did not concede the appeal on re-making and that it was a matter for me as to whether the Rules were met.

15.          There is no dispute that the appellant is a Greek national and therefore an EEA citizen.

16.          The appellant does not claim to meet the requirements for indefinite leave to remain. In order to qualify for limited leave to remain as an EEA citizen, the appellant would have to meet the requirements of paragraph EU3 and EU14 (on the basis of being an EEA citizen not a joining family member).

17.          No issue was taken at any stage of this application and appeal with the validity of the appellant's application.

18.          Pursuant to paragraph EU14(1)(a)(ii) the appellant would have to show she is a 'relevant EEA citizen' defined in Annex 1 (for applications made before 1 July 2021) as including "(a) an EEA citizen .... Resident in the UK and Islands for a continuous qualifying period which began before the specified date: or .....".

19.          The appellant relied on a number of documents to show her ability to meet the above definition. Ms Nwachuku observed that the bank statement only covered a week prior to the specified date.

20.          I am satisfied the boarding pass dated 18 December 2020 in the appellant's name from Greece to London supports her claim to have entered the UK on that date. It is accompanied by a corresponding boarding pass for the appellant's mother (the appellant was a child at that time). Further, the appellant's bank statements show payments out of her account between 22 December 2020 and the specified date placing her in the UK, for example TFL payments (Transport for London) and those types of payments continue throughout the period of the statement up to and including 1 October 2021.

21.          Other than Ms Nwachuku's observation above, there was no challenge to these documents. I am satisfied they are sufficient to show the appellant was more likely than not in the UK from 18 December 2020 (prior to the specified date) and continuously present from then till the date of her application. There is no suggestion or submission to the effect that she has since left. I am further satisfied her residence in the UK has continued since then.

22.          Applying those facts to the legal framework, I am satisfied the appellant meets the requirements of paragraphs EU3 and EU14(1)(a) of Appendix EU such that she is entitled to limited leave to remain.

23.          In any event, based on my findings, as a EEA citizen resident in the UK before the specified date and continuously since, I find the appellant to come within the personal scope of the Withdrawal Agreement (Article 10) which includes Union citizens who exercised their rights to reside in the UK in accordance with EU law before the end of the transition period and who continued to reside here thereafter. Accordingly, the appellant has residence rights pursuant to Article 13 of the Withdrawal Agreement. There is no dispute that she applied for residence status to confer her rights under the Withdrawal Agreement (as provided for in Article 18). Whilst she did so on the incorrect basis, it was clear from the documents she submitted with her application and in the possession of the respondent at that stage and at the time of the administrative review that she was a Greek national who submitted evidence of presence in the UK prior to the specified date and since. Pursuant to Article 18(o) of the Withdrawal Agreement, the respondent:

"shall help the applicants to prove their eligibility and to avoid any errors or omissions in their applications; they shall give the applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions;

24.          I am satisfied that it was sufficiently clear from the evidence before the respondent prior to the application being decided and certainly prior to the administrative review decision that the appellant was eligible for leave as an EEA citizen in her own right and should have acted in accordance with Article 18(o) to assist her to prove that.

25.          It follows that the respondent's decision to refuse the appellant's application for leave to remain is a breach of her rights as protected by the Withdrawal Agreement and not in accordance with the Immigration Rules.

Notice of Decision

1.   The decision of the First-tier Tribunal contained an error of law and is set-aside.

2.   The decision is re-made in the Upper Tribunal and allowed.

 

 

SJ Rastogi

Judge of the Upper Tribunal

Immigration and Asylum Chamber

17 Febr uary 2025