Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00350 (IAC)

Fecha: 09-Ene-2025

EUSS requirements

57.

In any event, we are satisfied that the FTT decision involved the making of an additional material error of law.

58.

The judge recorded at paragraph 1 that the appellant had applied on 2 July 2023 for pre-settled status under the EUSS. Nevertheless, his self-direction on the applicable law at paragraphs 6-8 says:

‘6. To succeed on the facts asserted here the Appellant must show he has been continuously resident for a five-year period and in the UK for at least six months in any twelve- month period prior to the relevant date the UK left the EU, namely, 31st December, 2020.

The material date for my assessment is 9th May, 2024.

The standard of proof is the balance of probabilities.’

59.

Mr Tan argues that the judge attempted to summarise in one paragraph both the legal test for settled status and the test for pre-settled status. We are unable to read paragraph 6 as such an attempt and certainly not an accurate attempt so to do. We note that the judge recorded at paragraph 4 only a single issue in dispute:

‘Has the Appellant shown, on the balance of probabilities that he has beencontinuously resident in the UK for the minimum period of five years.’

60.

We are entirely satisfied that the judge applied to the appellant’s application for pre-settled status the requirement that he should have by the hearing date have accrued five years’ continuous residence in the United Kingdom. That was an error of law. A continuous qualifying period of five years is a requirement for settled status under condition 3(b) of the table to paragraph EU11. However, it is not a requirement for pre-settled status per condition 1(b) of the table to paragraph EU14.

61.

Mr Tan argued that it was an immaterial error, and that the appeal was doomed to fail given the state of the evidence. However, in light of our findings above on procedural unfairness, we do not agree.