[2025] UKUT 00350 (IAC)

The grounds of appeal seeking permission to appeal to the Upper Tribunal (‘UT’) appear to suggest that not all of the documents provided to the respondent were taken into account by the FTT. When granting permission, the FTT recognised that the appellant was acting in person and that the grounds of appeal were not structured as legal challenges. As such, the FTT considered whether there were any obvious issues with the decision and identified the following arguable errors of law: the FTT arguably overlooked the possibility of the appellant satisfying paragraph EU14 of Appendix EU to the Immigration Rules; the FTT arguably failed to consider properly the appellant’s evidence; given the lack of clarity in the appellant’s case, the FTT (via its legal officers) arguably unfairly failed to ask ‘clarifying questions’; and, the FTT arguably unfairly failed to recognise the lack of clarity in the appellant’s case and give appropriate directions.

In her rule 24 response dated 8 July 2024, the respondent submitted that the FTT had directed itself appropriately. The respondent accepted that the decision was inadequately reasoned; however, it was argued that this was an immaterial error. Given the absence of evidence, dismissal of the appeal had been inevitable. The rule 24 notice further observed that the legal officer’s failure to ask clarifying questions may well have been an ancillary decision not amenable to appeal.

At the hearing, Mr Tan argued that the self-direction on the law at paragraph 6 of the decision under appeal dealt with the tests for settled status and pre-settled status together and was sufficient for us to be satisfied that there had been no misapplication of the law. He did not accept that trying to combine two legal tests in a single self-direction would necessarily lead to error and maintained that there had been no error in the self-direction. Mr Tan appeared to resile from the rule 24 concession on inadequate reasoning, arguing that little more needed to be said when there was no evidence addressing the key issues in the case. However, he maintained that any such error would have been immaterial.

Mr Tan accepted that the appellant’s ‘appeal reasons’, uploaded to the FTT in accordance with its reformed appeal process on 1 December 2023, could properly be considered as part of the appellant’s evidence, but that it had not been listed in the judge’s exposition at paragraph 5 of the documents submitted by the appellant. He argued that it would have been open to the appellant to provide a separate statement rehearsing the facts outlined in his ‘appeal reasons’, if he had wished them to be considered as his evidence.

Mr Tan also accepted that the ‘appeal reasons’ appeared to suggest that the appellant was asserting his presence in the United Kingdom before and perhaps even at the specified date. However, he submitted that these assertions were insufficiently clear. When asked if they therefore begged clarification, Mr Tan submitted that the appellant had been given the opportunity to provide further clarification and/or supporting documentation when directed by the FTT on 18 April 2024 that he should consider the respondent’s response to his appeal and could upload additional documents.

The appellant relied on his grounds of appeal and the grant of permission. He indicated that, if we were persuaded that the FTT decision involved the making of a material error of law, he would wish us to remake the decision. It appeared that Ms Botorea might in such circumstances be able to provide relevant documentary and oral evidence.

Mr Tan agreed that, in the event we found an error of law, it would be appropriate for us to re-make the decision. We indicated to Mr Tan that we would, if minded to take that approach, give him time to talk to the appellant and Ms Botorea and to consider any new evidence before rehearing the appeal.