KS v Secretary of State for Work and Pensions

I am satisfied on the arguments before me that that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 22 October 2024 and that its decision should be set aside as a result.

The FTT erred in law in failing adequately to address the appellant’s case (in her skeleton argument) that her husband had not in fact ceased to be self-employed by 11 November 2023. That case was set out in the FTT’s bundle at Addition A, at pages 5-7 of that Addition A in particular. Although the FTT in paragraphs 7, 19 and 22 refers to this skeleton argument, its reasoning in paragraphs 22-26 does not provide an adequate explanation for why it rejected the appellant’s arguments about why her husband had remained self-employed.

The Secretary of State supports the appeal being allowed on the ground on which I have allowed this appeal in a helpful submission to the Upper Tribunal dated 10 October 2025. The material parts of that submission, with which I agree, read as follows:

“11.

Judge Wright stated that he considers it is arguable with a realistic prospect of success that the FtT failed to adequately address [the appellant’s] case that her husband had not in fact ceased to be self-employed by 11 November 2023, and that FtT had failed to provide an adequate explanation as to why it rejected her arguments in this regard.

12.

I agree with the Judge’s observations above.

13.

In paragraph 25 of the SOR, the FtT found as fact that [the appellant’s husband] ended his self-employment on 11 November 2023, was not involuntarily unemployed and did not cease self-employment due to a lack of work (page 5 of the Addition F, FtT bundle). The Tribunal also pointed out that there was a 3-week break before [the husband] registered his unemployment with the Secretary of State. In paragraph 26 of the SOR, the FTT concluded that [the appellant’s husband] did not retain his self-employed status at the date of claim to UC on 7 December 2023.

14.

I would submit that, despite the FtT’s decision above, it is not clear how this conclusion was reached. It was stated in the evidence to the FtT that it was [the husband’s] work contract that ended on 11 November 2023 (page 5 of the Addition A, FtT bundle). This in itself, however, is not necessarily an indication that [the husband] had completely removed himself from the UK’s labour market and had no intention of returning to work. As Tribunal had noted in para 14 of the SOR, [the husband] obtained a CSCS card shortly after his claim to UC, which would indicate that he did intend to work.

15.

Furthermore, the FTT cited a 3-week break between [the husband’s] work ending and the claim to UC. It is not clear whether the FtT were of the view that [the appellant’s husband’s] self-employed status could not be retained due to ‘undue delay’, as set out in the UT decision of SSWP v MK [2013] UKUT 0163 (AAC).

16.

In this decision, UT Judge White explained that to retain one’s right to reside as a worker, one must record their involuntary unemployment with the relevant unemployment office without undue delay. That means that the delay of more than a very few days has to be considered, and, once a full enquiry into the reasons for delay has been made, it has to be decided whether there were reasonable grounds for the delay. The longer the delay, the more compelling must be the reasons for it. In the current case, the FtT simply stated that there was a 3-week delay, but didn’t appear to have looked at any reasons for it.

17.

Based on the above, it is my submission that the FtT erred in law in failing to give adequate reasons for their decision that at the date of claim to UC [the appellant’s husband] was not retaining a right to reside as a self-employed person and that [the appellant] could not derive a qualifying right to reside from him as a result.

Alternative right to reside

18.

Separately to the issue discussed above, I would like to bring to the attention of the UT to the further evidence that has, regretfully, been overlooked and might affect the outcome decision.

19.

According to departmental records, the Secretary of State has previously accepted that [the appellant’s husband] had gained a permanent right to reside. As part of the appeal proceedings in 2018, [the appellant’s husband] had this confirmed to him in writing (evidence.001). At the time this evidence had been accepted by the Secretary of State and [the husband] was awarded UC.

20.

As it is accepted that [the appellant’s husband] has a permanent right to reside under regulation 15 of the Immigration (EEA) Regulations 2016, and it is the Secretary of State’s view that [the husband] would not have lost it, his wife, [the appellant], would be able to derive a right to reside from him under Regulation 14(2) of the same Regulations for as long as she remains his family member. Therefore, it would be fair to conclude that [the appellant] would be able to rely on her husband’s permanent right to reside for the purposes of her claim to UC.

11.

The Secretary of State respectfully submits that although the FtT did err in law in failing to give adequate reasons for their decision that [the appellant’s husband] was not retaining his self-employed status at the date of [the appellant’s]claim to UC, the appeal should not be remitted to the FtT. If the UT judge accepts the Secretary of State’s submission that [the appellant’s husband] had acquired a permanent right to reside before [the appellant’s joint]] claim to UC, I invite the UT judge to allow [the appellant’s] appeal and remake the FtT decision instead.”

For the reasons set out above, the appeal succeeds, the FTT’s decision is set aside and, given the further evidence that is now before me (and ought to have been disclosed to the FTT), I remake the decision in the terms set out above.