Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-003196

First-tier Tribunal No: HU/00072/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

IKALESI TRISHA TABAIWALU
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr A Beech, instructed by Worthingtons Solicitors
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 12 March 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (“FtT”) promulgated on 10 May 2024, dismissing he appeal against a decision of the respondent to refuse her further leave to remain.
2. The core of the appellant’s case is that she is entitled to leave to remain on the basis of her marriage to a British citizen. The marriage took place after the initial refusal of leave, and only after the respondent had investigated the proposed marriage (permission to marry was granted). For that reason, it was not considered in the original refusal letter but was considered on review, the respondent maintaining the refusal. She did not accept that the eligibility requirements to live together permanently were met as the couple lived together for only part of the week. She was not satisfied either that they could be maintained and accommodated adequately without recourse to public funds.
3. The FtT heard evidence from the appellant and her husband. The judge directed himself [20] that he should consider the extent to which the appellant met the requirements of Appendix FM of the Immigration Rules, finding that:
(i) Relationship requirements were in issue [20];
(ii) The appellant had not demonstrated that she intended to remain with her husband [31].
4. The FtT reached the latter conclusion on the basis of the respondent’s observation that the couple do not live together for the entire week.
5. The appellant sought permission to appeal on the grounds that the FtT had erred:
(i) In finding that the relationship between the appellant and her husband was not a genuine marriage as this had not been raised as an issue by the respondent, nor had relevant questions been put in oral examination; and, that this was a procedural defect rendering the hearing unfair
(ii) In reaching perverse findings in respect of the financial requirements of the rules;
(iii) In failing properly to apply section 117B of the Nationality, Immigration and Asylum Act 2002 or conduct a proper proportionality exercise;
6. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Bulpitt on 1 August 2024.
7. When the matter came before me, Ms Blackburn accepted that there had been a procedural error in that it had not been part of the respondent’s case that the marriage was not genuine, nor had that been put to the FtT.
8. In my view, Ms Blackburn’s concession was correct. While concerns about the cohabitation requirement had been raised as they couple spent some nights of the week apart, it was not submitted that the marriage was not genuine. For the FtT to make a finding on that issue against the appellant when she had not had an opportunity to address it and when it had not been put in issue, is a fundamental failure to apply the principles of natural justice. The effect of this was to render the hearing unfair, and the decision manifestly involved the making of an error of law. I therefore set the decision aside.
9. As the appellant has not had a fair hearing, it is in all the circumstances appropriate to remit the appeal to the First-tier Tribunal for it to be determined afresh by a differently constituted panel. For the avoidance of doubt, none of the findings of fact made by the FtT are preserved.

Notice of Decision
1. The decision of the FtT involved the making of an error of law and I set it aside,
2. I remit the appeal to the First-tier Tribunal for it to be heard afresh on all issued.

Signed Date: 12 March 2025

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul