Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004162
[HU/64684/2023]
[LH/04202/2024]

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 July 2025

Before 
 
UPPER TRIBUNAL JUDGE  SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE CHANA
 
Between

MUHAMMED FAIZAL POTYRAM
(ANONYMITY ORDER NOT MADE)
Appellant 
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 

Representation: 

For the Appellant: Ms Delbourgo, Counsel instructed by Visa 24/7
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

Heard at Field House on 3 March 2025
 

DECISION AND REASONS
1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of Judge L Mensah promulgated on 21 June 2024 dismissing the appellant’s appeal under s 82 (1) (b) Nationality, Immigration and Asylum Act 2002 against the respondent’s decision of 15 December 2023 refusing his claim for leave on the basis of continuous 20 years residence in the United Kingdom in accordance with paragraph 276 ADE (1)(iii) of the immigration rules. This remaking follows the setting aside the First-tier Tribunal decision by an Upper Tribunal panel on 25 November 2024, consisting of Upper Tribunal Judge Sheridan and Deputy Tribunal Judge Jacques who found a material error of law. The Panel directed that the appeal be reheard in the Upper Tribunal. Essentially the material error found in the decision of Judge L Mensah on 21 June 2024 was that the First-tier Tribunal Judge placed unnecessary emphasis on the appellant’s bank accounts, which were not relevant to the issue at hand. Directions were made that gave the appellant an opportunity to adduce oral evidence from witnesses who could speak to his presence in the United Kingdom at the relevant dates.
2. The single issue for us to determine is whether the appellant provided credible evidence that he has resided continuously in the United Kingdom between 2001 and 2005; it having been conceded by the respondent that he had been residing continuously in the UK since 2006.
3. At the hearing, three witnesses, in addition to the appellant, gave oral evidence. They all adopted their witness statements. The witnesses who gave evidence at the hearing were not the same witnesses who gave written statements before the First-tier Tribunal. We heard submissions from both parties. The respondent in cross examination of all the witnesses, raised the issue as to why all three witnesses were different witnesses to those witnesses who gave statements for the first hearing.
4. The first witness to give evidence was the appellant’s friend Mr Yousouf Neetoo who adopted his witness statement dated 16 February 2025. He said that his father should be a witness but as his father is currently in Mauritius, he stepped in. He was 16 at the time when he met the appellant in the United Kingdom. He was doing his A-levels, at the time. He and the appellant visit the same community centre and volunteered. He refuted the respondent’s allegation that he has been asked to lie.
5. The second witness to give oral evidence was the appellant who adopted his witness statement dated 22 February 2024. When the appellant was asked to give his address, at first he said “in Mauritius” and immediately asked why did he say Mauritius, when he was asked for his address of the United Kingdom. The appellant said “the place in Mauritius belongs to his grandmother which is in a village”. He added that he has no ties to Mauritius. The appellant accepted that he provided the biodata page of his lost passport for his application for leave to remain in 2013 because he had saved photocopies of his passport. He said that he also used the same copy, to open a bank account in 2006. He was aware that there is a gap from 2001-2006 in the evidence in respect of his continuous residence. It was put to the appellant that Ms Ali, who gave her witness statement and who he claims was his previous landlord, makes no mention in her statement that she is leaving the United Kingdom and going to Mauritius which is why she could not give oral evidence at his first hearing on 20 June 2024.
6. The appellant was asked why did he not invite the same witnesses who gave witness statements more at his first hearing. The appellant accepted that they were new witnesses but gave no explanation.
7. The appellant was asked why he had not addressed an issue raised in the decision of the First-tier Judge, which was the absence of statements from those in official authority such as a mosque or the community centre where he volunteered. He replied, “the chairman was not available because his mind was disturbed”. The appellant was asked whether that was the only person who could have provided a statement from an official source. He responded that the chairman has dementia.
8. The next witness to give evidence was Mr Fazal Islam who adopted his witness statement dated 14 February 2025. Mr Islam said that he does not know why he was not asked to be a witness at the appellant’s first hearing. He had contact with the appellant since 2001 as the appellant would came to his cousin’s house, Wahida, from 2001 until 2005, where he would meet the appellant. Wahida passed away and the appellant moved to another place which he recommended in Edmonton.
9. The witness said in cross examination that he “lost contact with the appellant for a while” and it was put to him that in his witness statement he says that he has had regular contact with the appellant at all times. Mr Islam said, “I lost regular contact but that does not mean I did not see him now and then”. In response to being asked how he remembers meeting the appellant in such precise detail given that it was in March 2001, which was a very long time ago, he said that the appellant “told him that he has a problem then he remembers”.
10. The next witness to give evidence was Mr Zahir Hussein Ibrahim who said that he did not provide a statement for the appellant’s previous appeal. The appellant is a distant relative of his mother. He knew the appellant through the Mauritius community which is very tightknit. He remembers the appellant from 2001 because he ran a café which he started in 1996, which was next door his mother’s house. He started the café in 1996 and the appellant helped with the decorating, and he was very impressed with his work. He added that he has a good memory, which is why he remembers, and that he does not consider 2001 as “a long time”. He said that in Mauritius he has about 200 relatives, as does the appellant, being distant cousins.
Evidence and Analysis
11. The respondent accepts that the appellant entered the United Kingdom in 2001 on a six-month visitor visa. The respondent also accepts that the appellant has demonstrated his residence in the United Kingdom from 2006 onwards, where there are bank statements corroborating his claim to have been residing in the UK. The respondent does not accept, however, that the appellant has demonstrated his residence in the UK between 2001 and 2005, a period during which there is no documentary evidence, or evidence from official sources (such as a mosque or community centre), indicating that the appellant was present in the UK.
12. It was accepted at the hearing that the only issue in this appeal was for the appellant to demonstrate 20 years continuous and lawful residence. If he does that, he will succeed in his appeal, and if he cannot he will fail. The appellant claims that he has lived in the United Kingdom for more than 20 years, starting in 2001.
13. In making our decision, we have taken into account all the evidence in this appeal, including evidence to which specific reference has not been made.
14. In his application to the respondent made on 5 June 2023 , the appellant confirmed he will provide proof of property ownership from the owner of the property where he lived, such as a mortgage statement and a copy of an identity document of the owner of the property, such as a passport. Other then a provisional driving license of Ms Ali valid from 29 April 2023 until 29 April 2028, these other documents were not provided and no explanation has been provided for why they were not provided.
15. The appellant has submitted a brief letter from Beebee Rahenah Hossenally of Edmonton London dated 15 July 2023 addressed to “to whom it may concern “, where she states that she is writing to confirm that she has known the appellant “for nearly 22 years in the UK”. She states that she “was previously renting a room from 3 September 2001 to 16 November 2006”. There is no clarity as to which room she rented to the appellant, other than saying “a room”. Ms Ali is married but no evidence was adduced from Ms Ali’s husband.
16. The appellant’s reason for not calling Ms Ali as a witness at his first hearing on 20 June 2024 was that Ms Ali has moved to Mauritius. However in another letter dated 3 April 2024, Ms Ali gives her address in London. This would mean that Ms Ali was in London as of 3 April 2024. The appellant’s evidence is that she moved to Mauritius two and a half months before the appellant’s first hearing. However letter ends with, “feel free to contact me on my above address if you have any questions”. Ms Ali does not state in her letter that she is moving to Mauritius in the next couple of months. She states in her letter, that she is “prepared to give further clarifications if required”, which indicates that she intends to remain in the United Kingdom. If she was relocating to Mauritius very soon after writing the letter, we would have expected this to be mentioned in the letter, but it was not. Furthermore, there is no explanation in the letter as to how she remembers these precise dates for the room that she rented the appellant. It would be helpful to have seen some reasons for why she remembers those precise dates, for events which took place so long ago.
17. In her 2024 letter, Ms Ali said that the appellant was very quiet during his time at the “property”, without mentioning which property she is referring to. She said that the appellant’s rent was paid weekly in person and therefore she always “met him every week”. There is no evidence as to where she would meet him every week. This suggests that the appellant was not living in a room in her house with her husband because she would have crossed paths with him if they were living together, in the same house or apartment. There is no evidence of where this property is located or the size of this property. There is no evidence that Ms Ali had another property in which she rented the appellant a room. Ms Ali has a husband but he has not given any evidence that his wife has rented a room to the appellant and where she has rented it.
18. Ms Ali is an important witness and her evidence could potentially have given very strong support to the appellant’s claim. However, the evidence before us lacks detail and she has not made herself available for cross-examination. Whilst moving to Mauritius would be a good reason for not giving evidence, we have concerns as to credibility of the claim that she has left the UK, for the reasons explained above. Taking all of this into consideration, we do not attach weight to her untested evidence.
19. We consider there to be an inconsistency in the evidence between the appellant and Mr Zahir Hussein Ibrahim, who gave evidence at the hearing. Mr Zahir Hussein Ibrahim initially said that the appellant has lived with Ms Ali for the whole period of his stay in the United Kingdom, but later distanced himself from this evidence. This goes to the credibility of the appellant’s evidence that he resided with Ms Ali prior to 2006.
20. Although the appellant came to the United Kingdom in 2001, he did not open a bank account until 2006. The appellant claims that he lost his passport in 2006. Therefore, the appellant, by his own account, was in possession of a passport that would have enabled him to open a bank account at any time between 2001 and 2006. The evidence before us was that the appellant helped renovate the café of one of the witnesses. This indicates that it is likely that the appellant has been working (illegally) as a builder in the UK. Indeed, the witness evidence suggests that he started working immediately upon arrival in 2001. The appellant claims that he lost his passport in 2006. However, when he made his application for further leave in 2023 he provide a copy of the biodata page of his passport with his entry stamp of 2001 in order to prove that he entered the United Kingdom in 2001. The appellant was therefore aware of the importance of keeping documents to create a record. The appellant stated that he did not keep documents because he did not know that he would be applying for a 20 year residence. In his witness statement the appellant stated that he was “very apprehensive due to his precarious immigration status”. Although 2001-2005 is a long time ago, and that can explain the absence of documentary evidence, it is undermining, to some extent, of the appellant’s case that there is no documentation at all from that period. We treat this as a factor, but by no means a determinative or weighty one, in assessing the likelihood of the appellant having remained in the UK between 2001 and 2005.
21. We find we can place only limited weight of the evidence of the witnesses who gave oral evidence. The precise dates they have given in their evidence demonstrate that they understood that the appellant is trying to explain the gap of five years. Mr Zahir Hussein Ibrahim said that he is the appellant’s distant cousin, which was not in his witness statement. The witness statement of all three appellants are short and without any detail about how they have known the appellant since 2001 or what the appellant was doing in the UK between 2001 and 2005 It may be that although the witnesses believe they saw the appellant between 2001 and 2005 they in fact saw him in 2001 (when he was visiting) and then again in 2005/6 when he returned. Given that this period is from two decades ago, it would not be surprising if their memories of dates in that period are not entirely accurate.
22. The First-tier Tribunal Judge raised the issue that there was no evidence provided from any official source. The Judge indicated that evidence from the mosque would have more force. At the hearing the appellant said that he volunteered at a community centre. Despite this indication from the First-tier Tribunal Judge, the appellant did not provide evidence from anyone from the mosque or the community centre.
23. When the appellant was asked at the hearing why there is no evidence from the mosque or the community centre, he said, “the chairman got dementia”. It was put to the appellant whether that was that the only person who could possibly be called from an official source, the appellant answered, “yes”. We have considered an adverse inference can, and should, be drawn from the lack of this evidence. We appreciate that the appeal must be determined on the basis of the evidence produced but the weight to be attached to oral evidence may be affected by a failure to produce other evidence in support which was available to the appellant. The appellant has not explained why this evidence was not provided other than to say that the chairman of the community centre has dementia and made no mention of any attempts to provide evidence from the mosque. We therefore draw an adverse inference in the absence of evidence from an official source.
24. There are neither documents (such as a bank statement, GP letter or tenancy agreement) nor letters from an official source (such as a mosque or community centre) to corroborate the appellant’s claim to have resided in the UK between 2001 (after his visa expired) and 2006, when he opened a bank account. We have heard evidence from people claiming to have seen him regularly during that period but for the reasons explained above we attach only little weight to this evidence. The burden is on the appellant to show he has lived continuously in the United Kingdom for 20 years and, in respect of the period 2001 to 2006 (when the bank statements start), he has not, in our view, discharged that burden. His appeal cannot therefore succeed.
Notice of Decision 
25. For the foregoing reasons, our decision is as follows:
The appellant’s appeal is dismissed.

Signed: suretachana
Date: 14 July 2025
Deputy Judge of the Upper Tribunal