Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003714

First-tier Tribunal Nos: HU/52834/2023
LH/06125/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 20255

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

M A
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Taylor (Lay representatives)
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 27 May 2025

DECISION AND REASONS
Anonymity Direction

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. I make this order only as a precautionary measure and not because I am of the view that the appellant is at any risk once returned to Antigua. I do not accept that the disclosure of the representative’s name, owing to its very common use, would reveal the identity of the appellant and I consider it is proportionate in this instance.

1. The appellant appeals against the decision of the First-tier Tribunal dated 11th January 2024, which dismissed the appeal against the Secretary of State’s refusal to grant indefinite leave to remain as an adult dependant of a family member present and settled in the UK under Appendix FM and on human rights grounds. The appellant is a 48 year old citizen of Antigua and Barbuda and on 23rd June 2022 she applied for leave to remain in the UK as the adult dependent relative of her niece, who is settled in the UK. She appeals against the respondent’s decision dated 10th February 2023 to refuse her application.
2. The appellant arrived in the UK in December 2021 having been granted six months’ leave to enter as a visitor valid to 26th June 2022. She asserts that it would be unsafe for her to return to Antigua and Barbuda because her estranged husband who lives there has assaulted her and threatened to kill her. She asserts that she reported her husband’s behaviour to the police but they failed to protect her. The appellant also maintained her health problems meant that she should be permitted to remain in the UK.
Litigation History
3. The hearing before the First-tier Tribunal took place on 11th January 2024 and the decision issued by the First-tier Tribunal was issued on 21st January 2024. An application for permission to appeal that judgment was refused by the First-tier Tribunal but renewed to the Upper Tribunal and permission granted by Upper Tribunal Judge Reeds.
4. A Rule 15(2A) application was received on 12th October 2024 and the Secretary of State submitted on the same day a Rule 24 response from the appellant in readiness for the hearing.
5. On 30th October 2024 Mr Taylor, on behalf of the appellant, requested that the matter be listed before Judge Reeds, but it was explained the following day that the appellant’s appeal could not be heard by the judge who initially considered their application. A hearing bundle was submitted by Mr Taylor on 1st November 2024. There was a submission that the appellant could not index the bundle as required in the Practice Direction because of lack of funds and a bundle without proper formatting was submitted in five parts, which included a First-tier Tribunal bundle.
6. There were various documents in the supplementary bundle in readiness for the hearing listed for 13th November 2024 before Upper Tribunal Judge Blundell, which postdated the hearing before the First-tier Tribunal of 11th January 2024. These included letters of support from the parents dated October 2024, a travel e-ticket itinerary, a conditional order dated 10th July 2024. Indeed the supplementary bundle contained a range of documentation which postdated the First-tier Tribunal hearing. The bundles were embedded in emails and numerous repeat copies were produced. A further bundle was filed on 1st November 2024, which appeared to be again a repeat bundle. Mr Taylor filed a skeleton argument on 6th November 2024 and a further revised bundle was sent on 7th November 2024. The revised bundle appeared to include talking therapy letters and emails of “various dates”. The talking therapy emails and correspondence were dated from 16th October 2024 from “talking therapies” and 5th November 2024.
7. The hearing was listed on 13th November 2024 and proceeded. After the hearing, a request was made from Mr Taylor that Upper Tribunal Judge Blundell recuse himself from the matter as Judge Blundell had looked into a previous case in which Mr Taylor had been involved. Judge Blundell had requested an audio recording before the First-tier Tribunal.
8. A recusal decision was issued by Upper Tribunal Judge Blundell, noting that Mr Taylor raised two concerns. The first that the judge was actually biased in favour of the Secretary of State and that he approached the case on the basis that Mr Taylor was lying and that he had been treated with hostility. Secondly, that there was an appearance of bias and he was asked personal questions.
9. Upper Tribunal Judge Blundell, for reasons given in the decision issued on 18th November 2024 concluded that the matter should be considered afresh by a different judge on a date to be notified. As Judge Blundell explained, his concern and thus questions were to ensure that Mr Taylor was not acting in contravention of Part 5 of the Immigration Act 1999 and thus that he was not acting in the course of business and conducted a search to establish the same.
10. On 18th November 2024 a request for anonymity was submitted and the matter was listed for 7th January 2025.
11. On 2nd January 2025, correspondence was received from Mr Taylor enclosing the statements and transcript from the First-tier Tribunal hearing.
12. Also attached was an email from the post hearing team dated 25th November 2024 suggesting that Mr Taylor attend the Tribunal on 5th December 2024, apparently for a transcript recording of hearing request.
13. A letter dated 28th November 2024 from the Secretary of State noted that the hearing before Judge Blundell was part-heard to allow the Tribunal to obtain a copy of the First-tier Tribunal hearing transcript and subsequent to the adjourned hearing complaints were raised concerning this hearing.
14. On 2nd January ‘the transcript’ by Mr Taylor was filed with the Upper Tribunal. Again, further statements predating and post dating the First-tier Tribunal hearing were filed on 4th January 2025.
15. On 6th January 2025 I directed that the matter be adjourned because the audio recording of the First-tier Tribunal hearing was still awaited. Mr Taylor wrote to the Tribunal on 6th January 2025 advising that he was going to Jamaica to attend the funeral of his brother. In the event, it occurred that Mr Taylor was absent from the UK from 29th January for two weeks.
16. The audio recording was finally secured on 11th February 2025 and it appeared that the hearing was lengthy. On 18th March 2025 a full typed transcript of the First-tier Tribunal audio recording was requested. On 4th April 2025 instructions were given that the transcript of the proceedings were served on the appellant herself and the Secretary of State. The matter was relisted for 27th May 2025 and came before me.
Grounds of appeal
17. The appellant had applied for leave to remain in the UK as the dependent relative of MT, present and settled in the United Kingdom and sister SB.
18. The grounds of appeal stated that the decision reached by the First-tier Tribunal contained material errors of law, unlawful procedural error sand inadequate reasoning and “falls short of Wednesbury principle and materially perverse in principle”.
Ground 1
Unlawful procedural unfairness.
19. It was submitted that the legal requirement of any case to the applicant is to present their case fully without hindrance or fair justification and material errors were made by the judge, in the light of Article 6 of the European Convention on Human Rights, as follows:
(1) The appellant and her family produced witness statements identifying parts of the appellant’s bundle to elaborate and to give “pertinent oral evidence by way of examination-in-chief so that the Judge could get a full picture of the facts”. It was submitted the appellant was prevented from doing so by the judge’s direction based on Practice Direction not law that witness statements were to be deemed as read and there was no need for examination-in-chief [18] of the decision. It was the appellant’s case to undertake examination-in-chief and should be the advocate’s decision if he feels the circumstances are exceptional to do so. A conflict between law and Practice Direction should be resolved in favour of the law.
20. At [15] of the decision the judge recorded she confirmed Mr Taylor [said to be acting as lay representative] could perform an examination-in-chief but at [18] refused to permit him to do so and was stopped and told only to conduct re-examination. Mr Taylor felt he had no choice but to “reluctantly heed the Judge directions … believing that the Judge will be conducting the case fairly”. Thus the appellant was not allowed to put her case fully by examining all facts in all statements and it was not a fair trial.
21. The appellant wanted to develop an area based on her statement of involvement with her nephews, the niece’s children, upbringing and examination-in-chief was to highlight verbally the case of the best interests of the children and the best interests of the “child assessment is paramount”. The appellant was prevented from flushing out those facts and the appellant was not given the opportunity to put her case, which was guided by ZH (Tanzania) [2011] UKSC 4.
22. Insofar as the judge based her judgment to reject an important element in legal proceedings based on the assumption of witness statements deemed read based on practice directions was wrong in principle and unlawful. The appellant failed to have a fair trial in the light of Article 6 of the ECHR. Justice should be done and seen to be done.
Ground 2
Unlawful material unfairness
23. The facts in evidence were crucial in trials as they formed a full picture of the case. The judge in this case accepted some of the facts, circumvented some and came to a different conclusion, which appeared to be perverse:
(a) The judge at [26] found that it was not disputed the appellant had made a claim of domestic violence to the police in Antigua and Barbuda. It was clear that domestic violence could also involve threats to life. The judge accepted the appellant was a vulnerable witness and appeared to accept that she had a genuine fear of her estranged husband and the police had not done anything about it but did not came to the conclusion that the police may have not been truthful, “because their necks were on the line for not doing anything.”
(b) If the judge was basing her decision on credibility on the basis of the police letter in the bundle at [31] that there no threats to the appellant, this reasoning was perverse. This was because at AB 33 and 34, which the judge appeared to have accepted, it states there were recording of alleged threats to the appellant’s life. Evidence had been shown of the scale of domestic violence in Antigua and how the police did not respond efficiently. ‘Some of the transcripts from recordings’ were highlighted and Mr Taylor attempted to clarify objections to the “verbosity of the evidence by offering to play the recording, but neither the Judge nor the Home Office Presenting Officer, invited me to play it, so the presumption was that it was accepted in evidence”.
(c) It was unfair for the judge to now cast doubt on the credibility of the evidence. The transcript was from the appellant’s daughter and states, “My daddy said he want-he want to find a way to kill my mummy” but the judge rejected this. The appellant gave evidence to the effect that the recording of her daughter and it was reported to another police station.
(d) At [30] the judge appeared to have accepted the appellant’s account that the police were not doing anything about the appellant’s genuine belief and that people were recruited by the husband, following her and taking pictures and there was background evidence before the judge but at [37] the judge found there was no background evidence of the Antiguan police ignoring reports. At [38] the judge also accepted the appellant may have told the police that she was being followed but there was no such report in the police letter of that event of 24th May 2023. That should cast doubt on the veracity of the police letter. The conclusion did not follow the facts.
Ground 3
Misleading and inadequate reasoning.
24. At the outset the judge sought clarity of the refusal from the Secretary of State and pointed that there were discrepancies in the refusal but the judge failed to make adequate rulings on this point:
(a) The judge appeared to accept the explanation that the appellant was never a genuine visitor. The judge failed to provide adequate reasoning on the question of 9.8.3 and there was no evidence of previous breaches of any conditions of the appellant’s permission. This paragraph only dealt with previous breach of immigration laws which did not apply here. The judge at 4(c) [55] and [61] noted that the appellant came to the UK and returned back to Antigua in 2016. There was no previous breach of any condition of permissions and the judge failed to adequately address these discrepancies at [67].
(b) The judge was invited to rule on the appellant’s human rights under family life as an adult dependent relative because there were no biological children involved and the Secretary of State directed herself to assess the private life limb of Article 8. A crucial aspect to the appellant’s case was whether the Secretary of State was correct or not to have considered her adult dependency in relation to Article 8 i.e. family life. There was nothing in the judge’s finding on this assessment.
Ground 4
Article 8 family life/private life inside and outside the Rules.
25. The judge made her findings under Article 8 of the ECHR but her reasoning was not sound and fell short of Wednesbury principles (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The judge did not adequately show how she achieved the balancing of interest and how they were weighed outside the Rules:
(a) The judge assessed the private and family life of the appellant and weighed in immigration control under Section 117B . It was submitted that reintegration would be difficult and given the fact that the judge found evidence cited of people following the appellant and domestic violence was found, which could amount to a very significant obstacle, still the judge attached little weight to the facts of the case.
(b) Turning to family life, “inside the Rules” Section 117B(4) and (5) did not apply but the judge did not show how she achieved her balancing exercise with competing interests, private and public interest. The judge not properly apply Section 117A(2) correctly and apply the considerations under Section 117B.
(c) The judge did not find the appellant to be a credible witness and that she did not meet the Immigration Rules but the judge should have directed herself on Article 8 family life outside the Rules and apply Razgar [2004] UKHL 27 and the proportionality test correctly. The judge should have applied Section 117B(2) because the appellant gave her evidence in English. Secondly, the appellant is not financially dependent on the state and the judge accepted there was a genuine and subsisting relationship with the appellant’s niece’s children (albeit no examination-in-chief was allowed to develop this point further.
26. Further to Section 117B(6) it was not reasonable to expect the children and the family to leave the UK to Antigua and an argument developed before the judge by the guidance of Beoku-Betts [2008] UKHL 39. The niece’s children and their best interests were paramount further to ZH (Tanzania) and the level of interference would be significant and disproportionate and the judge did not attempt to look at Section 117B(6).
27. Permission to appeal was refused by the First-tier Tribunal but granted by Upper Tribunal Judge Reeds, who whilst acknowledging that ground 1 was essentially a case management issue, stated that it was not clear whether the First-tier Tribunal did not permit additional evidence-in-chief pursuant to the Practice Direction or whether the questions that were in issue, were ones asked in re-examination as appeared from the start of [18] [of the judge’s decision]. It depended whether the questions were requested to be asked were examination-in-chief rather than re-examination and if relating to examination-in-chief it was arguable that a judge did not provide an opportunity for any explanation as to why those additional questions were necessary.
28. Although Judge Reeds identified that the issue of procedural fairness also formed part of ground 2, relating to a recording/transcript, no transcript was before her and no transcript was requested by her. Judge Reeds permitted challenge on the basis of ground 1 and any procedural reference in ground 2, but found that the remaining grounds were essentially a disagreement with the decision.
Submissions
29. At the hearing before me, Mr Taylor submitted that the judge did not allow an examination-in-chief and he made reference to the vulnerable witness guidelines. He acknowledged the judge accepted he should be able to cross-examine but submitted the judge changed her stance. At paragraph 7.7 of the Practice Statement on vulnerability, the judge should allow the case to be put because there were a lot of challenges in relation to a vulnerable witness. In particular, the position on the children’s best interests was not able to be elaborated upon.
30. In relation to ground 2, Mr Taylor submitted that the judge did not look at the background evidence and ruled that the transcript recording of the daughter should not be played and that was an error in terms of the assessment to be undertaken. Although there was a written transcript in the bundle, that was insufficient to be able to persuade her because the tone was not able to be captured. The question was asked whether there was any formal application to listen to the transcript and Mr Taylor submitted that this was likely to be a submission. The judge’s reasoning was perverse and he asked the judge whether she would like to listen to the recording and she refused to do so.
31. The judge did not take into account the domestic violence reports and did not take the evidence fully into account. The judge had made up her mind against the principles elucidated in AM (Afghanistan) [2017] EWCA Civ 1123 and did not look at the whole of the evidence properly, including the police response.
32. At this point Mr Taylor submitted that they now had further evidence in relation to the emails but in response to confirmation that these postdated the FtT hearing, it was explained that this evidence was not before the First-tier Tribunal and at this juncture could not be considered.
33. Ground 3 was not developed further in oral submissions and in terms of ground 4, Mr Taylor relied substantially on the written grounds and explained that the appellant wished to develop the arguments in relation to the best interests of the child. It could not be expected that the child should be relocated to Antigua and if the answer was no, the public interest assessment should go in favour of the appellant. If the family were to be split, that would affect the human rights of both the appellant and the children, who were qualifying children. He accepted that the relationship was not a parental relationship. Evidence to that effect may have not been before the Tribunal but there was now evidence, which should be considered in the round.
34. Mr Parvar, in terms of ground 1, showed that at pages 44 and 45 of the formal Tribunal transcript showed that there was examination-in-chief of Ms SB, who gave evidence first. The picture put forward by the appellant was very different from that which was contained in the formal Tribunal transcript. Nothing improper occurred and Mr Taylor had retreated from his request to ask questions and moved on. The judge did not prevent Mr Taylor from asking questions and there was no proper argument on ground 1. It was common ground from the Joint Presidential Guidance from 2019 on permission to appeal that the proper place to raise unfairness with the judge was at the hearing and this had not been done. If the aim was to flush out facts in relation to the best interest of the children, that could have been done at the time of the hearing. There was nothing to ground 1.
35. In relation to ground 2, the opening of the ground asserted the judge accepted the appellant had a fear of her estranged husband but that was not what was found at [40] of the decision. Here the judge made no such finding and that was repeated at [49]. The police letter contradicted the claim made by the appellant.
36. At [38] the judge made clear that she would not expect the appellant to have withdrawn the request to the police and that should be seen against the background of [36] and [37]. Context was important and the findings were clear.
37. The appellant submitted that the judge should have concluded that the police were not truthful as their ‘necks were on the line’ but that was not an error of law challenge and in any event, the judge considered at [39] whether the police were lying and simply the judge preferred the evidence from the police. On the balance of probabilities it was open to the judge to make these findings.
38. In terms of the recording at the police station, the whole point of a transcript was to set out what was said in the recording and it should be a verbatim record of the recording and it would not strike someone as unusual that a recording was not played and written transcript would normally suffice the not improper paragraph. It was clear that the judge did consider the transcript at [30] which did not show the police that the husband was threatening to kill the appellant.
39. Turning to the invitation to listen to the transcript relating to the daughter, this was made in the middle of asking questions in relation to the transcript. That was not a formal request or application made during the preliminaries or asking the judge for a ruling as to listening to the transcript and it was not saying anything about what was raised in the recording in relation to tone or the way in which it was communicated. This was not properly communicated to the judge and there was simply a reference made inside a question to the witness and nothing could properly be discerned in relation to unfairness from this part of the formal Tribunal transcript. The Tribunal transcript itself indicates that the transcript relating to the daughter presented at the hearing was part of a conversation between family members.
40. Crucially on ground 2, the judge found at [33] that the appellant withdrew her evidence from the police because she was frustrated. What was said at ground 2(d) about the police doing nothing did not make sense in the light that the appellant had withdrawn her application.
41. Ground 3 was weak. The Rules the judge was considering were the Immigration Rules in relation to an adult dependent relative and the niece did not fall under those provisions. The judge had properly considered the private life of the appellant and Article 8.
42. Turning to ground 4, the written grounds in relation, for example speaking English were neutral factors.
43. Section 117B(6) was an entirely new component of the case and there was no record of these issues being pleaded in relation to the appellant having a parental relationship with the children of her niece. The Tribunal transcript did not reveal Mr Taylor made any submissions on the relationship with the children. Nothing was said about the children leaving the United Kingdom. The application of leave to remain could be found within the bundle and at no point did the appellant state that she wished to stay because of the children. It was purely based on family life and significant obstacles. The appellant had a close relationship with the extended family and it was open to the judge not to assess the relationship in the terms of a parental relationship. The appellant merely lived with the children for two years. Any parental relationship would not be obvious to the fact-finder. There was no indication of a parental connection and it was not pleaded.
44. In essence Mr Taylor was suggesting that this tied into ground 1 and his intention to ask evidence in relation to that but he retreated from that as can be seen in the Tribunal transcript and did not make a formal application to introduce a new matter.
45. In terms of the anonymity direction there was no competing interest besides the fact that this was a divorced woman. Further, no application was made to the First-tier Tribunal.
46. Mr Taylor submitted that looking at the transcripts he was not allowed to examine-in-chief but only to respond to the Home Office questions and the judge indicated she had to stop him because the questions were leading. He intended to conduct a full examination-in-chief and he should have been allowed the latitude to do so.
47. In terms of ground 2, the judge made it clear that he offered to play the recording of the transcript of page 30 and he did not do so. The tone in the transcript might have “swung” the judge’s assessment. The recording was made by the appellant’s daughter and had the daughter’s voice and she is recorded saying what she heard her father said.
48. Ground 3 still held weight and in terms of ground 4 the best interests of the children were primary and the relevant sections of 117B should have been factored in, particularly in relation to children.
Conclusions
49. I respond to each of the grounds in turn.
Ground 1
50. The Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal of 13th May 2022 and in force at the date of the hearing, directs as follows at Section 5:
“5. Evidence Generally
5.1 A witness statement should be capable of standing as the totality of the evidence in chief of the person giving that statement.
5.2 A witness statement may be added to by the provision of a supplementary statement provided that the supplementary statement is filed and served in accordance with any directions given in the appeal.
5.3 Only in exceptional circumstances and with the leave of the Tribunal, will a witness be permitted to provide additional evidence in chief.
5.4 Where a hearing is adjourned because of the introduction of late evidence the Tribunal will consider whether to exercise its costs powers.
51. This explains that a witness statement should be capable as standing as the totality of the evidence-in-chief of the person giving that statement and further that supplementary statement may be provided and only in exceptional circumstances and with the leave of the Tribunal will a witness be permitted to provide additional evidence-in-chief.
52. The revised Senior President Practice Direction dated 1st November 2024, at Section 8 stipulates at 8.4 that “Only where there is good reason and with the permission of the judge, will a witness be permitted to provide additional evidence-in-chief”.
53. Having checked the electronic files before the First-tier Tribunal it is clear that on 4th July 2023 that the FtT noted that no evidence was filed in support of the appeal reasons and that it had been indicated by the appellant that the documentary evidence, witnesses and written evidence would be available at the time of the hearing. However, it was pointed out by the FtT that it was necessary “To file all documents that will be required upon the hearing now” so that the respondent can carry out a substantive review of your case to decide whether you have made a valid case for overturning the original decision”. Further, it was added “The hearing may be adjourned in court if you raise a new matter on the day of the hearing and the Home Office has not had time to consider it. A guide on evidence can be found below”.
54. A direction was given that any documentation that the appellant wished the respondent or the judge to consider at a substantive hearing must be uploaded by 19th July 2023. In other words it is evident that the appellant was directed to provide written evidence to explain her case well before the hearing and was advised that a new matter may present an adjournment.
55. It is quite clear in the Practice Direction that it is not the advocates’ decision if he considers that the circumstances are exceptional, that he should be permitted to cross-examine and it is clear that the judge complied with the overriding objective in the First-tier Tribunal Procedure Rules which set out as follows:
“Overriding objective and parties’ obligation to co-operate with the Tribunal
2.— (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.”
56. That the judge seemingly gave permission for Mr Taylor to conduct the evidence-in-chief and re-examination and make submissions at the hearing and does not mean to say that it was necessarily required for the judge to permit questioning or refinement by Mr Taylor of the appellant’s case on every detail or at each juncture.
57. When considering the grounds of appeal I considered the transcript provided by Mr Taylor of the FtT hearing (‘the appellant’s transcript’), which ran to six pages and the ‘formal FtT hearing transcript’ of the same hearing, which I directed from the Upper Tribunal typist’s, which in fact ran to 110 pages and presented a rather different picture.
58. At the outset of the hearing, it can be seen from the formal FtT transcript that the judge states “When we come to hear from you, erm, I do have witness statements from you, from all three of you and I will read them very carefully. So, don’t be worried, if you’re not asked everything in the statements because I can read that for myself.”
59. To this the appellant states ‘ok’. This indicates acquiescence by Mr Taylor and the appellant to the approach taken by the judge. The judge then states “erm, what will happen is, erm, it’s possible that Mr Taylor will have a couple of questions for you and I need to discuss that with him”.
60. The judge then proceeded to explain the procedure that the Home Office would ask some questions and at the end, that if there were anymore questions that arose “from her questions” then Mr Taylor may “check a few things with you.” The judge added that after hearing the evidence then she would hear submissions from both representatives and Mr Taylor would get the last word. Nothing in the approach to the FtT inviting evidence or the judge’s approach or explanation of the court proceedings indicated any procedural irregularity.
61. The judge also explained that normally, when there was a legal representative, that the rules say that everything a witness wants to tell the court should be in their witness statement, to which Mr Taylor replied, “yes”. Thereafter the judge stated “did, …, did you have anything else you wanted to add to the witness statement or are you happy with, that they represent the case, err, Ms A’s case?”
62. Mr Taylor at this point responded “They represent the case, err, presented before you of relevance. I mean, you know they are about sort of domestic issues but no relevance to this case”. Nothing here indicated the appellant’s representative, Mr Taylor’s dissatisfaction with the process.
63. At this point Mr Taylor confirmed that he himself had prepared the transcript of the recording of the appellant’s daughter’s (‘the daughter transcript’) included in the appellant’s bundle at page 33 and he stated that he was adducing it under “Section 85”. This transcript, Mr Taylor confirmed was “The recording was sent from Antigua, I think in 2021 via, erm, from, err, Mrs As’ daughter to, her sister, which is SB”.
64. The judge directed that the Home Office Presenting Officer should establish who remained in Antigua as part of the cross-examination.
65. Immediately before the cross-examination began, Mr Taylor also confirmed that “We are still pursuing, erm, adult dependent relative, erm, under Article 8, in or out of the Rules”.
66. There was no reference to Section 117(6) and, which would have been, quite obviously, a new matter to which the Secretary of State had not given consent.
67. On the opening of Ms SB’s evidence there was no request by Mr Taylor to ask further questions in evidence-in-chief and he had accepted the direction in relation to all of the witnesses from the judge. During the course of the cross-examination, Mr Taylor interjected to state that he did not know whether it was relevant but Ms SB had “some sort of learning difficulty as well” so “She struggles to understand these sorts of questions but I’m not going to interfere”.
68. It was put to Ms SB in cross examination, that, in fact ,she was said to have been able to provide assistance to the appellant and she also confirmed in evidence that she was in fact working. It was established that the appellant has two daughters in Antigua aged 19 and 12 and the evidence was given that the appellant went to court to organise custody matters with her estranged husband and there was shared custody of the children during the Christmas period. She was asked whether she told the court that she was afraid of her life and Ms SB stated that she did “every day of the court”.
69. Mr Taylor was then permitted to undertaken re-examination and confirmed he had no more questions at the close of the cross-examination.
70. The appellant was then called to give evidence and advised by the judge that her witness statement was available dated 10th January. After the appellant adopted her statement Mr Taylor stated, “Oh, erm, judge, are you, I am allowed to ask a few questions before or should I just move on? ”. The judge responded, “Well is there anything that’s not in the witness statement because we did say, you did say you didn’t have anything to add to the witness statement?” and Mr Taylor responded, “Err, just, just a few clarifications and that’s it really.”
71. The judge then asked what they were because it was said at the beginning there “wouldn’t be extra questions but go tell me what they are”. To which Mr Taylor replied “I, I’ll leave it as it is”. The Home Office Presenting Officer then proceeded to her cross-examination. There was no application to ask further questions and Mr Taylor made plain that he was content to proceed. This does not indicate any procedural error on the part of the judge.
72. During the cross-examination Mr Taylor interjected stating that he knew “this is very highly charged and emotional moment” but “just for clarity I won’t interfere with any one of the procedure” but added that in relation to the witness “she is speaking off the top off her head. I’m just giving her some guidance to say that can you state the date”.
73. A further interjection from Mr Taylor requested that the appellant could use the bundle to “drag a memory” and the judge agreed. If anything this indicated an indulgence of the lay representative which possibly would not have been afforded to a legal representative.
74. The Home Office Presenting Officer cross-examined on the shared custody arrangements and that the court permitted the children to stay with the father.
75. What is clear is extensive evidence was taken from the appellant and after the extensive cross-examination Mr Taylor was permitted to ask some more clarificatory questions. At this point the appellant stated that she was threatened by the ex-husband in 2021 “during the time of the custody arrangements”.
76. It was during this cross-examination that Mr Taylor stated with reference to the daughter’s recording:
“Okay, erm, I’m looking at page 33 of the bundle … I can see where Ella made a statement sent to your sister via WhatsApp and it says my dad has said he wants, he wants to find a way to kill my mum. Now, erm, judge, just, just in case, erm, you know, for the avoidance of that and ambiguity, a few seconds, I’ve got that clip if you want to hear it, I’m willing to play it. But, erm, that’s, that was O, was that the first threat?”
77. That was the sum total of the request to play the recording of which there was already the daughter transcript. There was no formal application and this was merely a reference to it should the judge require it. There was no reference to tone. Mr Taylor was then permitted to ask questions (which included leading questions) about the threat and the judge interjected when the date was given incorrectly. Judge Andrews at this point pointed out that Mr Taylor was supposed to be asking questions, not giving evidence in relation to the GP evidence.
78. Extensive latitude was afforded to Mr Taylor to ask further questions and elucidate further points in relation to the police and the medical evidence and the appellant’s mental health. The judge assisted with accurate dating of the evidence and was directed to further aspects of the evidence, including research into domestic violence in Antigua.
79. After some time, the Home Office Presenting Officer objected and interjected to state that this was not re-examination and the judge specifically states
“No its not re-examination. I’m allowing him some latitude because he is not legally represented. I mean what you are meant to be doing at this point, err, because he’s not a lawyer. What you’re meant to be doing at this point is just addressing the issues that came out of Ms, err, Nwaguchu’s questions”.
At this point Mr Taylor replied “yes yes”.
80. Even at this point the judge permitted Mr Taylor to ask further questions “If it really is just a few more questions I will allow it Mr Taylor because you’re not a lawyer”. Mr Taylor went on to ask more questions about a report of the appellant about a report on domestic violence and her views on it, at which point, a further interjection from the Home Office is greeted by the judge with “yes, no, I will allow you the opportunity to respond, because this is like evidence-in-chief, I agree”. The judge pointed out that there was no need to ask the appellant to confirm was in the report and he responded, “One final question on this and then I am done”. Mr Taylor proceeded to ask further questions about the husband’s male friends and their wives and then stated finally “A final couple of questions on the health and then I am done”.
81. At this point the judge specifically asked if there was anything that is not already in the documents and Mr Taylor responded “yeah, yeah, it’s, it’s addressed in the witness statement. So I think, erm, that’s my final bit”.
82. The final witness gave evidence in the name of Ms Taylor and Mr Taylor confirmed he had no further questions and stated, “over to you Ms Nwaguchu”. The judge at the close of the cross-examination asked if there were any further questions in re-examination and Mr Taylor confirmed “no I’m done”. The proceedings moved on to submissions.
83. Not only did the First-tier Tribunal not err in law in following its own practice, no exceptional points were raised such that further evidence should be permitted in addition to the witness statements and it quite clear from the very careful scrutiny of the formal Record of Proceedings that the judge afforded Mr Taylor extensive latitude in his questioning. At no point did he object to the approach of the judge nor object to the procedure. If anything the approach was advantageous to the appellant. Nothing in the approach suggested anything contravened the guidance in AM (Afghanistan). Indeed, I was not persuaded that all Mr Taylor’s legal references and citations were legally focused but no doubt that is understandable owing to his status as a lay representative.
84. If anything, the judge erred in favour of the appellant in relation to the conduct of the procedure.
85. The grounds at 1(b), such that Mr Taylor felt he had no choice but to “reluctantly heed to the judge’s directions believing that the judge would be conducting the case fairly” is simply not sustainable on a reading of the formal FtT hearing transcript.
86. No formal application was made to make an examination-in-chief and, as can be seen from the recitation of the proceedings, there was not even an informal application by Mr Taylor.
87. There was no assumption made by the judge in relation to the witness statements.
88. I should add that Article 6 of the ECHR does not apply to immigration proceedings although the common law principles of fairness do.
89. Nothing was presented in the grounds, which on reading the formal FtT hearing transcript disclosed unfair conduct of the proceedings by the judge.
Ground 2
90. Turning to ground 2, the judge arrived at an arguably cogent and rational conclusion in relation to the threats of domestic violence. Nothing in the decision could be construed as ‘perverse’. Perversity has a very high hurdle and not sustainable here as a challenge.
91. As the Court of Appeal said at para [18] of Herrera v SSHD [2018] EWCA Civ 412, it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence, Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197 (IAC).
92. The judge carefully considered the correspondence between the appellant and the Antiguan police and the judge at [31], [32] and [33] recorded the following:

“31. 4 May 2023 email from the appellant to the police, requesting a copy of her 13-15 September 2021 report (as referred to in paragraph 4(d) above). This email asserts that:

(i) the September 2021 report was made regarding her husband making threats to her life;

(ii) the appellant had observed a car following her everywhere she went; and

(iii) her mechanic told her that her car had been tampered with, and that it would have caught fire, had it been started. The police promptly acknowledged receipt of this email (on 5 May 2023).

32. 24 May 2023 response from the police, stating that they are in receipt of a domestic violence report made by the appellant between 13 and 15 September 2021. However, ‘There was never any report of threat made to the Police.’

33. 18 July 2023 email from the appellant to the police, withdrawing her request. She states, ‘I made the report but it appears no one wrote it down’. At the hearing, the appellant told me that she withdrew her request because she was upset and frustrated.”
93. The judge was clearly invited by the Home Office Presenting Officer to prefer the evidence of the police dated 24th May 2023 letter and that there was evidence of a very competent police force and the judge agreed with the emails and letters from the Antiguan police that suggested they responded efficiently to enquiries. The judge for cogent reasoning given within the decision simply preferred the evidence of the police.
94. No background evidence was provided to suggest that the Antiguan police would ignore reports of threats [37]. The judge noted the exerts or reports on domestic violence in Antigua and Barbuda but there was no indication that the Antiguan police would ignore those reports. As the judge stated, although the appellant advanced that she told the police that the husband had made several threats to her life if that were true, she would, first not have expected the police to have written the letter of 24th May and secondly, not expected the appellant to have withdrawn at her request for the information from the police.
95. The judge factored in and weighed relevant evidence including as to whether the police were lying, as asserted by the appellant, but in considering the evidence in the round, preferred the evidence from the police and did not accept, even on the balance or probabilities that she had reported death threats to the police as claimed. That was unarguably open to the judge, Volpi v Volpi [2022] EWCA Civ 464 which confirms at 2(i) that ‘An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong’. That is the position here
96. Mr Taylor made a reference to the recording of the appellant’s daughter, but as can be seen from above there was no clear application to have this recording played and the judge was provided by the appellant herself with the ‘daughter transcript’, of which no reason was put forward by the appellant at the time of the FtT hearing, as to why it was insufficient or deficient and the hearing of any recording was a matter for the judge. The question of “tone” was a matter only raised subsequently in the grounds as can be clearly deduced from the formal Tribunal FtT transcript.
97. Nothing in this ground was sustainable.
Ground 3
98. The finding on the Immigration Rules was in relation to the adult dependent relative rule. That rule was properly set out at [47] of the judge’s decision.
99. The point taken by the Secretary of State under paragraph 9.8.3 of the Immigration Rules (whereby an application for permission to stay may be refused where a person has previously failed to comply with the conditions of their permission) and in her decision letter was not an issue taken by the judge and even if it were, was not material.
100. The judge did not make any findings at paragraph 3(f) in relation to whether the appellant’s application should be refused under paragraphs 9.8.3 or 9.13.1 of Part 9 of the Immigration Rules. The decision reveals no holding of any previous breaches of immigration laws against the appellant and the judge found at [67] that as the appellant could not meet the Immigration Rules in any event, and properly found it was not necessary for her to address Part 9 of the Immigration Rules.
Ground 4
101. In terms of ground 4 and Article 8, there is a mere assertion that the judge’s findings were inadequate. As the decision of the Secretary of State under appeal confirmed, the appellant made no application on the basis of any child for the purposes of Section 117B(6) of the 2002 Act. If the appellant had done, which she did not, it would have been a new matter. No application was made in relation to including a new matter in the appeal.
102. There was no family life “inside the Rules”. In terms of Section 117B of the 2002 Act, the judge clearly and lawfully applied Section 117A and 117B. It was open to the judge to find that the appellant was not credible and there were no significant obstacles to her return to Antigua. The factors under Section 117B, such as the appellant being able to speak English and not being financially dependent on the state, are neutral factors. I would add that the reference to the medical conditions of the appellant in the grounds suggests that the appellant was, in fact, using the NHS (ie not financially independent) but even this was not a point relied on by the judge.
103. That the judge accepted that there was a genuine and subsisting relationship at [58] with the appellant’s niece’s children does not mean there was a parental relationship. The arguments in relation to Section 117B(6) are irrelevant because there was no parental relationship. I repeat this would have been a new matter.
104. At [8] the judge addressed the question of family life at [56] noting the relationship with the niece and the niece’s children but bearing in mind the nature of that relationship and having taken into account the “best interests of the appellant’s niece’s children at [58] identified at [59], that the appellant had only lived with these children for a little over two years and there was no evidence as to any impact on the children should the appellant return to her home country”, it was open to the judge to find that “overall I am not satisfied that the appellant’s removal would be contrary to the best interests of either the appellant’s niece’s children” and that was a finding the judge was lawfully permitted to make on the facts. These children were the appellant’s niece’s children with whom she had lived for a short period.
105. Albeit that family life may have been found overall the question of proportionality as to removal was the issue.
106. The judge conducted a proper balancing exercise setting out a balance sheet approach from [60] onwards. The appellant could not fulfil the adult dependant relative rules and that does not appear to have been challenged. The judge noted the appellant’s immigration status was precarious throughout and that thus little weight should be given to her private life. She had resided in the UK for a very short space of time and had only ever been granted six months’ leave to enter as a UK visitor and had no right to expect that would be extended.
107. The judge found that although the appellant received medication for her health and her treatment may be interrupted, there was no indication that she would be unable to obtain necessary medication in Antigua and Barbuda.
108. Bearing in mind the weight afforded to the appellant’s family life and private life, it was unarguably open to the judge to find that the public interest outweighed the factors found on the appellant’s side of the balance. The judge unarguably applied Agyarko [2017] UKSC 11 , such there would be no unjustifiably harsh consequences on the appellant’s return..
Notice
109. I find no material error of law and the decision of First-tier Tribunal Judge Andrews will stand.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28th July 2025