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EUSS Settlement Scheme Appeal & Specified Date

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This appeal relates to an application lodged by ICS Legal on behalf of the appellant under the EU Settlement Scheme - Pre-Settled Status, which was then wrongly refused by the Home Office and the First Tier Tribunal agreed with ICS Legal in allowing the immigration appeal.

Full facts of the case and what we did is enclosed. Please note due to data protection, the appellant's name or any relevant details are not enclosed. 

Summary case facts

The appellant who is an EEA national entered the UK after the specified date under the EU Settlement Scheme. However she relied on exceptional circumstances

Immigration Judge Fitzgibbon KC presided over the matter on the 16th March 2023 at IAC Taylor House. 

ICS Legal applied for the EU Settlement Scheme application with our legal defence, which was turned down by the Home Office. The appeal was lodged in line with paragraph 3(1)(c) of The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. 

The Home Office decision letter claims as follows: 

"The Secretary of State refused the application on the basis that the appellant had failed to show that she had been resident in the United Kingdom for the period of five years required for the purposes of paragraphs 11 of Appendix EU of the Immigration Rules, or the shorter period for paragraph 14. She did not comply with the requirements for settled status or pre-settled status. There was no evidence that she has been resident in the UK before 1 January 2021."

Following the appeal being lodged, the Home Office did conduct a respondent's review, however failed to consider the material evidences presented by ICS Legal. 

Outcome of the matter

The appellant was represented by ICS Legal and we served upon a full appeal bundle, containing our ASA. We made our initial submissions on the following:

"The central issue on this appeal is that the Appellant did not provide sufficient evidence to confirm that she entered the UK prior to the cut-off date of 31 December 2020. He relied on the case of Sapkota [2014] 1 WLR 401 and MM Lebanon [2017] UKSC 10 in support of the contention that it would be unfair to exclude the appellant from the Settlement Scheme in these circumstances."

The appeal matter related to this EU Settlement Scheme application was not on the basis of credability but the point of law on the specified date post Brexit. 

The closing submissions made by Immigration Judge Fitzgibbon KC was as follows:

"It regrettable that the respondent did not consider whether the Home Office guidance applied to this case, having received the appellant’s evidence for the reasons that she did not come to the UK before 01 January 2021. Had that been done, it is likely that there would have been no need for an appeal hearing. It is therefore appropriate to make a full fee award."

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