Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004407

First-tier Tribunal Nos: EU/50657/2024
LE/02629/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

TAYARA MACHADO TELES
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kolade Jegede, Solicitor instructed by Ashton Ross Law
For the Respondent: Mr D Thompson, Senior Home Office Presenting Officer

Heard at Field House on 25 November 2024
Further submissions from the Respondent on 24 March 2025
Further submissions from the Appellant on 23 July 2025
Placed before the Upper Tribunal for consideration on 5 September 2025

DECISION AND REASONS
Introduction
1. The Appellant is a national of Brazil. Her sponsor is Caroline Pertile Teles, a national of Portugal. The Appellant had appealed against the Respondent’s decision dated 9 January 2024 refusing her application for settled or pre-settled status under Appendix EU of the Immigration Rules. The application was based on marriage.
Background
2. On 9 January 2024 the Respondent had made a decision to refuse the Appellant’s application on suitability grounds and the basis of there being insufficient evidence of the relationship.
Procedural History
3. The Appellant’s appeal was considered on the papers by First-tier Tribunal Judge Moffatt (“the Judge”) and dismissed by way of a decision dated 5 August 2024.
4. The Appellant had sought permission to appeal against the Judge’s decision. The Appellant’s grounds had said amongst other things that,
“4. The Appellant applied for pre-settled status as the spouse of an EU national and in line with the relevant legal requirements - the sole requirement for the application to succeed was for the Appellant to demonstrate that she was legally married prior to the specified date of 31 December 2020.
5. As part of the application, the Appellant disclosed a marriage certificate dated 8th March 2020 to demonstrate that she was lawfully married to her sponsor prior to making the substantive application.
6. The Appellant’s application was refused on the sole basis that the Respondent did not believe the marriage certificate was genuine. The Respondent did not question the nature or validity of the Appellant’s relationship with the sponsor - the only point in contention was the validity of the marriage certificate.
7. In her appeal bundle, the Appellant provided the First Tier Tribunal with evidence of the certificate’s validity including the relevant translations, apostille and government communications which confirmed the position.
8. As per Tribunal Judge Moffatt’s determination on 5th August 2024, it was held that burden was on the Respondent to prove that the Marriage Certificate was not in fact valid - but they had failed to demonstrate this. Furthermore, and based on the evidence available in front of him – the Judge accepted that the marriage certificate of 8th March 2020 was likely to be genuine.”
5. Permission to appeal was granted by First-tier Tribunal Judge Connal on 24 September 2024 who had observed that the Appellant’s grounds of appeal had asserted that Judge Moffatt had erred in dismissing the Appellant’s appeal on the basis of a lack of documentary evidence, but whereby the Judge had found that the Appellant’s marriage to the EU national sponsor, which occurred prior to the specified date of 31 December 2020, was genuine.
6. Judge Connal also said that in light of the date of the marriage certificate being 8 March 2020, and the Judge’s finding that the certificate was genuine and the Appellant did marry the Sponsor, it was arguable that Judge Moffatt had made a material error of law when going on to find that the Appellant was also required to provide, but had failed to provide sufficient evidence to demonstrate that the relationship was durable at the date of application or continued to be durable.
The Hearing Before Us
7. A hearing of this matter took place before us on 25 November 2024. At the hearing the parties made oral submissions, but it can be fairly observed that very unusually both parties had made concessions that their respective arguments could not succeed.
8. We had formally reserved our decision but thereafter we had invited further submissions from parties set out within a directions order after the hearing. In accordance with the requirement to further the overriding objective, the parties were required to provide the answers to the questions set out for them within the timescales referred to in our directions order.
Directions and Further Submissions
9. Whilst the further written submissions from the parties have been helpful, there has been a considerable delay in getting responses. In particular, the Appellant’s solicitors had to be ‘chased’ for their responses. An extension was granted to the Appellant’s solicitors to respond on 14 July 2025. The Appellant’s say in their response dated 23 July 2025 that they apologise for the delay. We are grateful for that apology, but it is important for the directions of the Upper Tribunal to be complied with.
10. Ultimately, the matter was placed back before us for consideration by the Upper Tribunal’s office on 5 September 2025.
11. The first written response was that of the Respondent dated 24 March 2025. It is a helpful document drafted by Mr Deller. Within the Respondent’s document headed ‘skeleton argument’ it states in part as follows:
4. The primary basis of that refusal was an assertion that the couple’s marriage certificate was not acceptable evidence that they were married before the specified date, as required under Annex 1 definition of a “joining family member of a relevant sponsor”, subsection (a)(aa), due to alleged discrepancies with expectation as to its form and content. The decision letter however went on, in accordance with recognised procedures, to consider whether the appellant met instead the requirements of Appendix EU via the definition of “durable partner” in Annex 1, which was relevant to (a)(ii) subsection of “joining family member of a relevant sponsor” under (a)(i)(bb).
5. First-tier Judge Moffat dismissed the appeal, holding that the allegation by the Secretary of State against the marriage certificate had not been made out but that the relationship had not been shown to be durable as at the date of the application.
6. There appears to be a significant shortcut available here. On its face Judge Moffat’s rejection of the Secretary of State’s allegations as to the acceptability of the marriage certificate dealt with the only stated ground for refusal as to whether the appellant met the definition of (a)(i)(aa) as a spouse or civil partner where the marriage was contracted before the specified date and accordingly any discussion of the requirements as a durable partner, whether right or wrong, was simply otiose if it was accepted that the marriage was contracted before 31 December 2020. Unfortunately, the discussion that followed took the case into some confusing areas regarding the applicable durable partner provisions and led to the adjournment for the parties’ positions to be clarified.
7. Taking things first on the assumption that the Secretary of State’s primary position had been well founded and that the couple were not married before (or after) 31 December 2020, the appellant’s task would have been to demonstrate that he met the eligibility requirements and the definition of durable partner in Annex 1, to meet subsection (a)(i)(bb) and that his sponsor (assuming she was not his spouse) met the definition of ‘relevant EEA citizen’ or ‘relevant sponsor’ The reasons for refusal letter pointed to the fact that the requirements for an application made after 1 July 2021 for the person to hold a ‘relevant document’ as a durable partner barring any reason why not. Plainly the Appellant did not have such a document and therefore appeared to fall foul of the dicta in Celik. Again, it is unnecessary to go into detail but all arguments on this issue collapsed into irrelevance as the couple were held to be married before 31 December 2020. Thus, any issues around whether and when a durable partnership had to have been established simply did not arise and neither did the applicability of Celik.
8. The Appellant’s solicitors reply dated 23 July 2025 says in part as follows:
“From considering the detailed response on this element of the Respondent’s skeleton argument, it appears that there is no dispute as to the fact first-tier Tribunal Judge Moffatt had erred in the application of the Appendix EU in relation to the marriage. 6. It is therefore our submissions that the Upper Tribunal ought to (1) find that there was a material error of law in the decision of First-tier Tribunal Judge Moffatt and (2) to remake the decision and to allow the Appellant’s appeal pursuant to the EU Settlement Scheme on the basis of her genuine marriage to the sponsor.”
Consideration and Analysis
12. As was pointed out during the hearing and in our directions order, importantly Judge Moffatt made had various findings which were not the subject of a cross appeal by the Respondent. Those findings included at paragraph 26 that,
“The appellant has provided a number of documents to establish the authenticity of the marriage certificate. I find that the respondent has not shown why it is thought that the document is not genuine. I find that the appellant has provided documentation to demonstrate on balance that the marriage certificate is a genuine document and that she did marry the sponsor.”
13. Judge Moffatt also found at paragraph 27 that the Appellant had demonstrated that she was in a durable relationship with the Sponsor since 20 December 2019. Thereby the Judge concluded the relationship was formed and was durable before the date of 31 December 2020.
14. It is fair to say that at the hearing we had asked both parties’ advocates to assist us with the various provisions which they contended may or may not apply. The sum total of which ultimately was that it was conceded on behalf of the Appellant that the appeal could not succeed, but curiously the Respondent said that the appeal should succeed.
15. We think it is fair to observe that the position of each party was therefore, at least initially, inconsistent.
16. Mr Thompson on behalf of the Secretary of State conceded correctly as did a Rule 24 response drafted by Ms McKenzie, Senior Presenting Officer, dated 1 October 2024, at paragraph 3 that:
“The Respondent accepts First Tier Tribunal Judge (FTTJ) Moffat has erred by accepting the Appellant had a durable marriage before the specified date at paragraph 27, and then to dismiss on the premise the marriage was not durable at the date of application or had continued to be so”.
17. At the hearing, we had been taken to various documents and statutory instruments and guidance including to Appendix EU of the Immigration Rules. There is no doubt that the marriage in this case was authenticated by reference to the marriage certificate for the relevant time.
18. In particular, it would appear that because the marriage certificate is dated 8 March 2020 and because the Judge clearly found that the marriage certificate was genuine then the Appellant did indeed marry her sponsor before the relevant date of 31 December 2020.
19. On that basis, it was not necessary for the Judge to go onto consider whether or not the relationship was durable at the date of application or that it continued to be durable.
20. Therefore, Mr Deller is entirely correct when he states in the Respondent’s skeleton argument of 24 March 2025 that.
“There appears to be a significant shortcut available here. On its face Judge Moffat’s rejection of the Secretary of State’s allegations as to the acceptability of the marriage certificate dealt with the only stated ground for refusal as to whether the appellant met the definition of (a)(i)(aa) as a spouse or civil partner where the marriage was contracted before the specified date and accordingly any discussion of the requirements as a durable partner, whether right or wrong, was simply otiose if it was accepted that the marriage was contracted before 31 December 2020.”
21. As Mr Deller’s correctly also says in his written submissions at paragraph 7,
“Again, it is unnecessary to go into detail but all arguments on this issue collapsed into irrelevance as the couple were held to be married before 31 December 2020. Thus, any issues around whether and when a durable partnership had to have been established simply did not arise and neither did the applicability of Celik.”
22. We find Mr Deller’s written submissions to be compelling. We agree that once Judge Moffatt accepted the marriage certificate to be genuine, then the Appellant had therefore dealt with and proved to the required standard the only part of the refusal that required to be dealt with. The further discussions and matters raised in respect of durable partner were indeed otiose, just as Mr Deller submits.
23. We have considered further whether the additional issue in respect of the durability of the marriage needed to be considered as at the date of application after 30 June 2021. Namely whether the Sponsor had to show she had been granted either Indefinite Leave to Enter or Remain under Appendix EU or Limited Leave to Enter under Appendix EU3 of Appendix EU. Mr Deller states that
“this raises some discussion about whether these newly identified matters have life in the appeal before the Upper Tribunal, not having been raised previously”.
24. The Appellant states in the response dated 23 July 2025 that,
“The Upper Tribunal will note that there is no scope within the premises of the notice of decision of the Respondent to attempt to raise additional arguments. It will be procedurally unfair for the Respondent to bring into scope new matters concerning the Sponsor when this had not been raised either during the consideration of the notice of refusal dated 09 January 2024, nor at the hearing of 24 November 2024. There had been a plethora of opportunity for this to have been raised. The sole concern raised in the decision was the relationship as a bar to providing the Appellant of EU settlement status.
4. We submit that the scope of consideration, shall remain on the focus on the determination of First-tier Tribunal Judge Moffatt. The scope that has been the jurisdiction for the Upper Tribunal to consider is the decision of First-tier Tribunal Judge Moffatt dated 5 August 2024 and whether there had been an error of law in the conclusion to dismiss the appeal having found that the marriage conducted prior to the relevant date had been genuine.
25. We remind ourselves of the Upper Tribunal’s decision in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). That made clear in the judicial headnote as follows (underlining has been added for emphasis),
“1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.
6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”
26. Whilst both parties have equal standing before us, it is perhaps correct to observe that the Secretary of State will usually be setting an example to other parties in terms of the discipline of ensuring that there is fairness and indeed finality. We are grateful to Mr Deller’s written submissions which appear to recognise this.
27. If the issue relating to the marriage had been whether we had jurisdiction to hear the matter then, even if made late, an application to reconsider matters would likely succeed. On the facts of this case though and considering the specific matter before us, on balance we agree with the Appellant that ultimately the issues were there for all to see and identified well in advance. As Mr Deller for the Respondent appears to recognise and for which we are grateful, it is far too late now, well after the hearing and when not raised previously by the Respondent in the decision, at the First-tier Tribunal or in the Rule 24, to seek to raise new issues. This becomes even more obvious when at the hearing before us, the Respondent had sought to concede that the Appellant’s appeal ought to succeed.
28. We therefore conclude that the decision of the First-tier Tribunal contains a material error of law. We set aside the decision of the First-tier Tribunal. We remake the decision and we allow the Appellant’s appeal on EU grounds.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and it set aside.
We remake the decision and we allow the Appellant’s appeal on EU grounds.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 September 2025