UI2023003260

              The first part of these written reasons on whether the First-tier Tribunal erred in law reflect the full oral reasons which we gave to the parties at the end of the hearing. We reserved our decision in which we remade the decision on the appellant's underlying appeal.

              We pause to note the terms of the refusal letter of 8 th December 2022 considered the applicant's application made after 30 th June 2021, so after the end of the so-called 'grace period' under the EU Settlement Scheme (see The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020). No issue on timeliness was taken. The respondent refused the application on the sole basis that she regarded the marriage between the appellant and his former wife as one of convenience.

"In all his appeals the Appellant has not been able to demonstrate that his former wife was exercising her treaty rights in this country when they divorced in May 2015. On the evidence available to me in this appeal, the position remains the same. It follows that he cannot show that he has a retained right of residence based on that relationship."

The Judge went on to consider, at ¶11 onwards, Article 18.1 of the Withdrawal Agreement and the issue of proportionality. The Judge concluded that the appellant could not succeed on any argument in respect of proportionality in the Withdrawal Agreement and that in relation to the question of Article 8 ECHR, this was not a permitted ground of appeal. The Judge dismissed the appeal.

              First-tier Tribunal Judge Hollings-Tennant granted the appellant permission to appeal on 8 th August 2023. He considered that whilst the Judge found there was insufficient evidence to establish retained rights of residence, the Judge had failed to address the question of whether the respondent should have made enquiries with HM Revenue & Customs to assist in proving the appellant's eligibility, as per Amos v SSHD [2011] EWCA Civ 552 and the relevant Home Office guidance.