UI-2024-003965
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003965
First-tier Tribunal No: EA/50955/2023
LE/02354/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
14th July 2025
Before
DEPUTY UPPER TRIBUNAL JUDGE WILSON
Between
SADIO HASSAN TURE
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: No Representation
For the Respondent: Ms S Rushforth (Senior Home Office Presenting Officer)
Heard at Cardiff Civil Justice Centre on 14 May 2025
DECISION AND REASONS
Introduction
1. The Appellant appeals against the decision of a First-tier Tribunal Judge (‘the Judge’) dated 16 July 2024 dismissing her appeal against the respondent’s decision to refuse her application for leave to enter pursuant to Appendix EU (Family Permit), as a spouse of an EEA national.
Background and Procedural History in the First tier Tribunal
2. In the Reasons for Refusal Letter dated 30 November 2023 the respondent did not accept that the Appellant satisfied the requirements of Appendix EU (Family Permit). The respondent concluded that the sponsor was married at the time of his marriage to the Appellant. As such, the marriage to the Appellant was not recognised in the United Kingdom and the Appellant did not fall within the definition of “spouse” pursuant to Appendix EU (Family Permit).
3. The Appellant appealed to the First tier Tribunal on 13 December 2023 on the grounds that:
“my culture allow me to marry up to four wives i have two wives but none in uk that's why I come with another request when my ex wife we divorce then I want someone to live and share life here you can. There is nothing wrong with my marriage and I have already provided all the proof documents about everything. already provide marriage certificate my previous wife and divorce certificate and even the other one manage certificate and divorce certificate and also other support in documents like you bills, all transport or visit my wife. therefore I should be valued for my culture and religion. I have not broken any UK laws.” (sic).
4. The Appellant was unrepresented in proceedings before the First tier Tribunal.
5. At the outset of the appeal the Appellant requested an oral hearing before the First tier Tribunal and paid the higher fee for a “decision with oral hearing”.
6. On 2 February 2024 the Appellant applied to adduce further evidence.
7. On 13 May 2024 the Appellant uploaded to MyHMCTS documents in support.
8. On 23 May 2024 the Appellant made an application to the First tier Tribunal requesting that the appeal be determined in her favour on account of the Respondent’s non-compliance.
9. On 1 June 2024 the Appellant uploaded to MyHMCTS further documents in support together with responses to Tribunal clarifying questions.
10. On 9 July 2024 the Appellant, via the sponsor, made the following application. “I am Abdi Kadir Osman and I have commissioned Ibrahim Abdullahi Hassan. In the case of my wife, I want to represent me. and he is better than me. In terms of the law and any evidence that is needed, he will present it.” The Appellant provided contact details for Mr Hassan. The application was refused by a Legal Officer on the basis that if Mr Hassan was a legal representative he must make an application to be placed on the Tribunal record. The Legal Officer indicated that, if the representative did not apply to be placed on the Tribunal record, then the sponsor should attend the hearing as his evidence may be required.
11. On 12 July 2024 the Appellant, via the sponsor, confirmed that Mr Hassan was a lawyer and again requested that Mr Hassan represent her. The Appellant indicated that the chosen representative would attend the hearing on 15 July 2024.
12. On 13 July the Appellant applied for an adjournment. The application read as follows: “Because I am not prepared well and even I will choose representative lawyer (sic). Even I'm not prepared and sorted, How it used to be Therefore I wanted to be within the next 15 working days” [Sic]. The Legal officer did not determine this application. The Application was determined by the Judge on the day of the hearing.
The Decision of the First Tier Tribunal
13. In a Decision and Reasons promulgated on 16 July 2024 the Judge dismissed the Appellant’s appeal. The Judge considered the applications dated 12 and 13 July 2024 at the hearing [6]. The Judge also considered whether it was appropriate to proceed in the sponsor’s absence. The Judge directed himself to Rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 [7]. The Judge correctly identified that notice of hearing had been adequately served on 9 June 2024. The Judge appropriately concluded that the Appellant and the Sponsor had been notified of the hearing given the various applications made in the days before the hearing [8]. The judge went on to state that “it was evident from the backdrop to that request [for an adjournment] that the Sponsor had no intention of attending the hearing” [8]. The Judge noted that the Appellant and sponsor had submitted a bundle of evidence and had received the respondent’s bundle. The judge reminded himself of the requirements of the overriding objective and focused on delay and Tribunal resources [9]. Taking these factors into account the judge concluded that the Appellant had been given sufficient opportunity to put forward her case and it was in the interests of justice to proceed with the hearing. As such, the adjournment application was refused and the Judge proceeded in absence of the sponsor [10].
Grounds of Appeal to the Upper Tribunal
14. In the grounds of appeal to the Upper Tribunal the sponsor submits that he was outside of the UK at the time of the notice of hearing and at the time of the hearing itself. The appellant has produced evidence of the sponsor’s air travel in support. The sponsor and Appellant are not content that the First tier Tribunal proceeded in the sponsor’s absence as the sponsor wanted the opportunity to produce documentary evidence and give oral evidence.
Permission to Appeal
15. Permission to appeal was granted by First-tier Tribunal Judge Kudhail in a decision dated 28 August 2024. Judge Kudhail granted permission on the grounds that the Appellant’s two applications of 12 and 13 July 2024 were evidence of an intention to engage. Accordingly, it was arguable that refusing the adjournment application and proceeding in absence resulted in procedural unfairness.
The Upper Tribunal Hearing and Submissions
16. I heard oral submissions from the Appellant’s sponsor and Ms Rushforth.
17. In oral submissions the sponsor expanded on the themes contained in the grounds of appeal explaining that he left the UK as his father had died. Prior to leaving the UK the sponsor had spoken to people who were assisting with the appeal and asked that they inform the tribunal and seek an adjournment. The sponsor thought this had been done. The sponsor then focused upon his marriages. The sponsor submitted that he had not committed any offence in entering into his current marriage while he was still married to his first wife. The sponsor submitted polygamous marriages were permitted in his home country and his culture. He did not understand why marrying his wife would be wrong. In any event, he was now divorced from his first wife. The sponsor gave an initial indication that he wanted further time to seek advice to advance his case. When this was explored with the sponsor he confirmed that the Appellant did not pursue an adjournment of the Upper Tribunal proceedings and this appeal should be decided without an adjournment.
18. There was no rule 24 response from the respondent. In oral submissions, Ms Rushforth submitted that the adjournment application was fairly and adequately dealt with by the Judge. The Judge considered the application before him. That application did not indicate that the sponsor was out of the country. The application before the Judge was not supported by the evidence of air travel. This information came later when the application for permission to appeal was made. The judge should not be criticised for failing to take into account evidence that was not before the Judge. The Judge satisfied himself that notice of hearing was appropriately served. The Judge was entitled to conclude that it was fair and just to proceed in the sponsor’s absence. Accordingly, the judge adequately dealt with the adjournment application and appropriately proceeded in the appellant’s absence. There was no procedural unfairness. In the alternative, any error is immaterial. On the sponsor’s own evidence he was married at the time he married the Appellant. The divorce from the sponsor’s first wife postdates the Appellant’s and sponsor’s marriage. A polygamous marriage is not lawful. Accordingly there was no valid marriage as at the specified date (31 December 2020). The sole issue in dispute before the First-tier Tribunal was whether the Appellant was the sponsor’s spouse. On the sponsor’s own evidence this was not made out.
Discussion
19. There is a single ground of appeal. That is that the refusal of the adjournment application and proceeding in absence of the sponsor was procedurally unfair because it denied the Appellant a fair hearing.
20. I remind myself of the principles set out in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) which provides that “Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.”.
21. In Nwaigwe Mr Justice McCloskey cites MM Sudan [2014] UKUT 105 (IAC), [15] – [17]. In MM the Upper Tribunal considered the governing principles that apply to every litigant’s right to a fair hearing. Of particular, relevance to this appeal are the following:
a. It is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.
b. If the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
c. The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the procedural irregularity or impropriety had not occurred.
d. It is sufficient if an [appellant] can establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different.
22. In SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, Moses LJ, giving the judgment of the court, said [15] “Tribunals, like courts, must set aside a determination reached by the adoption of an unfair procedure unless they are satisfied that it would be pointless to do so because the result would inevitably be the same.”’
23. Accordingly, it is necessary to consider firstly whether there was a procedural irregularity in the Judge’s approach. Secondly, if there was such a procedural irregularity, it is necessary to consider whether this resulted in the Appellant being deprived of a fair hearing.
24. I accept that the Appellant had not informed the tribunal that the sponsor was out of the country at the time of the hearing. The sponsor’s evidence before the Upper Tribunal was that his father’s death prompted his return. However, there was no evidence before either the Upper Tribunal or the First-tier Tribunal to support this assertion. The Judge cannot be criticised for failing to take account of matters of which he was not made aware.
25. The Judge states in his decision and reasons that “it was evident from the backdrop to that request [for an adjournment] that the Sponsor had no intention of attending the hearing” [8]. However, in considering the application to adjourn and to proceed in absence the question for the judge was not whether the sponsor had an intention to attend on the day of the hearing but rather whether an adjournment would enable the Appellant to fully participate in proceedings if the hearing had been adjourned to a later date. This principle is contained in paragraph 2(c) of the overriding objective which requires “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings”. The judge did not consider whether granting an adjournment would enable the Appellant, via the sponsor, to fully participate in the proceedings. The procedural history summarised above is indicative of an Appellant and sponsor who were fully engaged in the proceedings. Between February and July 2024 the Appellant/sponsor had seven interactions with the Tribunal, submitting evidence and making applications. In my judgment, when refusing the adjournment application and proceeding in absence, the judge failed to take account of the importance of enabling full participation in proceedings (paragraph 2(c) of the overriding objective) and the likelihood of participation by the Appellant if an adjournment was granted. This was particularly important in light of the Appellant’s/sponsor’s history of engagement. Accordingly, in my judgement there was a procedural irregularity when the Judge refused the adjournment application and proceeded in absence of the Appellant/sponsor.
26. However, I remind myself that the question before the tribunal as per Nwaigwe is whether the appellant was deprived of the right to a fair hearing. In my judgment there was no unfairness because the procedural irregularity identified made no difference to the outcome.
27. The Judge correctly notes that the marriage certificate contained in the bundle indicates that the appellant and sponsor were married on 28 December 2020 in Mogadishu, Somalia. The Judge correctly records that a “to whom it may concern” letter states that the Sponsor and “Fatuma Abdi Yussuf” were married on 24 February 2020 in Nairobi. The Judge correctly records that a document headed “the Judiciary” records that the sponsor divorced Fatima Abdi Yusuf on 5 October 2022.
28. The Judge correctly records that in responses to questions raised via MyHMCTS the sponsor stated that [18]:
“…have two wives but none in the uk” and
“my applications form the first wife we fight and and I divorced her then I reapplication my another wife. Same time they refuse for me. I’m a Muslim person according to my religion I can marry up to four women same time and also I don’t have any another woman in the UK. And that cannot be excused for them that is my f we don’t my tradition and also my religion allowed for me. For more orphan information I come to the hearing and say more.” (sic)
29. In oral submissions the sponsor did not seek to challenge the findings of the Judge that the sponsor was married to his first wife at the point that he married the Appellant. Indeed, the sponsor stated that he did not violate the laws of the UK by marrying another wife. The Sponsor stated he did not consider that marrying another wife would be wrong. The Sponsor stated that he did not understand the rules of the UK. Accordingly, there is no dispute that at the time the sponsor and Appellant were married the sponsor was still married to his first wife.
30. The Judge correctly identified and applied Abdin (domicile – actually polygamous marriages) [2012] UKUT 00309(IAC), which provides that:
“Under section 11(d) of the [Matrimonial Clauses Act 1973] a polygamous marriage entered into outside England and Wales shall still be void if either party at the time of the marriage was domiciled in England and Wales.”
31. The Appellant does not seek to challenge the Judge’s findings that the sponsor was domiciled in England and Wales at the time of his marriage to the Appellant. This is understandable as there is no challenge to the content of the Reasons for Refusal Letter that Government records indicate that the sponsor had resided in the UK since April 2019. The sponsor’s length of residence in the UK combined with the application of the Appellant to enter the UK as the sponsor’s spouse, are indicative that the UK is the sponsor’s domicile of choice [Mark v Mark [2005] UKHL 42].
32. I accept that this Tribunal should exercise caution in concluding that the outcome would have been the same if the procedural irregularity had not occurred. I accept that the test is a high one, that is would the result inevitably be the same. However, in my judgement the procedural irregularity made no difference to the outcome. There is no prospect that the outcome would be different but for the procedural irregularity. The Appellant does not dispute that the sponsor is domiciled in the UK for the purposes of section 11(d) of the Matrimonial Clauses Act 1973. The sponsor accepts that he was married to his first wife at the time of his marriage to the Appellant. On any assessment of the Appellant’s appeal the Appellants and sponsor’s marriage is void pursuant to section 11(d) of the Matrimonial Clauses Act 1973.
33. To succeed in her appeal the Appellant must show that she met the definition of spouse under Appendix EU (Family Permit) as at the 31 December 2020. The definition of spouse under Appendix EU (Family Permit) requires that the marriage is recognised “under the law of England and Wales, Scotland or Northern Ireland or of the Islands”.
34. On any assessment of the Appellant’s appeal, the Appellant cannot satisfy the definition of spouse pursuant to Appendix EU (Family Permit) as the marriage is not recognised under the law of England and Wales. It is void pursuant to section 11(d) of the Matrimonial Clauses Act 1973.
35. Accordingly, the Judge’s decision not to adjourn and to proceed in absence did not deprive the Appellant of a right to a fair trial as on any assessment of the Appellant’s appeal the result would inevitably be the same.
36. For these reasons, the Judge’s decision contains no material error of law.
Notice of Decision
1. The appeal is dismissed.
2. The decision of the First-tier Tribunal did not involve the making of a material error of law.
3. The decision of the First-tier Tribunal therefore stands.
G Wilson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 July 2025