Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005565

First-tier Tribunal No: HU/56142/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1st of May 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
PHILOMENA VINCENT
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr S Hingora, Counsel, instructed by AR Law Chambers
For the respondent: Ms S Lecointe, Senior Presenting Officer

Heard at Field House on 22 April 2025

RE-MAKING DECISION AND REASONS
Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of her human rights claim. By an error of law decision sent out on 24 January 2025, I concluded that the First-tier Tribunal had erred in law when dismissing the appellant’s appeal (the error of law decision is annexed to this re-making decision). In summary, the First-tier Tribunal had failed to adequately engage with the appellant’s own evidence as to the length of her residence in the United Kingdom and had overlooked an item of evidence relevant to that residence.
2. With reference to [35] of the error of law decision, I preserved certain findings made by the First-tier Tribunal, namely:
(a) The appellant speaks English and Igbo;
(b) The appellant has had regular contact with the Nigerian diaspora in the United Kingdom;
(c) The appellant has relatives in the United Kingdom who have assisted her and there is no evidence to suggest that they could not or would not continue to do so if she returned to Nigeria;
(d) The appellant has no material health conditions;
(e) The appellant has been continuously resident in United Kingdom from at least late 2018 to date.

The issues
3. The factual issues in this appeal are now as follows:
(a) Did the appellant in fact arrive in the United Kingdom in December 2000, as she claims?
(b) If so, did she reside here continuously until 2018, since when the respondent accepts that she has been resident?
(c) If she did not arrive in December 2000, when did she arrive and did she reside here continuously until 2018?
4. As to the legal issues, these can be summarised as follows:
(a) Can the appellant satisfy the 20-year provision under paragraph 276ADE(1)(iii) of the Immigration Rules as it then was (the appellant’s application for leave to remain - treated as a human rights claim - was made on 29 March 2021, with the refusal of that claim being made on 31 March 2022, prior to the introduction of Appendix Private Life in June 2022);
(b) If the appellant cannot satisfy that provision, can she nonetheless demonstrate that there would be very significant obstacles to her reintegration into Nigerian society?
(c) If she cannot demonstrate very significant obstacles, can she nonetheless succeed on Article 8 grounds?
5. Ms Lecointe accepted that if the provisions of the relevant Immigration Rules could be met, the appellant would be entitled to succeed in her appeal. No suitability issues have been raised by the respondent.

The evidence
6. I record here my concerns as to the preparatory work undertaken by the appellant’s solicitors in this case. No composite error of law bundle was provided in advance of the error of law hearing. I acknowledge that that was subsequently confirmed as being a result of lack of funds on the appellant’s part. However, no consolidated bundle was provided in respect of the resumed hearing and there has been no explanation for this. Instead, a considerable amount of time was spent on the day of the hearing attempting to bring together all relevant evidence so that the representatives and myself all had the same materials. I express my gratitude to Mr Hingora for his efforts to rectify matters and to Ms Lecointe for her ability to work through these difficulties (she confirmed that she was able to proceed, notwithstanding what I have just said and a sore throat).
7. Beyond the documents, it transpired that two of the appellant’s witnesses, Mr Oni Owagwu (the appellant’s brother) and his son, Jonathan Owagwu, had not been informed by the solicitors as to the need to attend the hearing. Again, this omission was unexplained. In the event, and with the assistance of the Tribunal’s administrative staff, a remote connection was established and I was able to hear from both of them.
8. A further problem appeared to be the fact that the solicitors failed to appreciate that filing documents on the Tribunal’s CE-File system does not amount to service on the respondent. Such service can only be by email. That should be known to all practitioners in this jurisdiction.
9. I understand that there may be difficulties in preparing for hearings. Some of those difficulties may arise from a lack of funds or other matters. However procedural rigour is very important. So too is fairness to the other side (the respondent) and the need to assist the Tribunal. If there are difficulties, this should be communicated to the Tribunal promptly and, if appropriate, an extension of time sought. If there are any difficulties with filing or service, these too should be communicated to the Tribunal in order that assistance may be provided. Doing nothing is unhelpful and likely to lead to a waste of time and effort, not to say cost on the appellant’s part.
10. The evidence which I have considered is contained in a bundle indexed and paginated 1-215 and an unpaginated bundle running to 25 pages.
11. Ms Lecointe also had the First-tier Tribunal stitched bundle which she obtained from the CCD database. As far as I can tell, all of the evidence contained in that bundle had been included in the first bundle referred to in the previous paragraph.
12. I heard oral evidence from the appellant, Oni Owagwu and Jonathan Owagwu. Their evidence was of course recorded and I took a full note of it. I will refer to relevant aspects of the oral evidence when setting out my findings of fact, below.

The parties’ submissions
13. Ms Lecointe relied on a skeleton argument drafted by another Senior Presenting Officer. In summary, it was submitted that the appellant was not a credible witness and that she had not resided in this country since 2000. There were numerous inconsistencies in the evidence and a significant gap in documentary evidence for the period 2010-2018. It was submitted that the brother’s evidence had been evasive. There was no evidence from the hospital in respect of a claimed hysterectomy. It was possible that the appellant had left the United Kingdom and then re-entered unlawfully at some point. There was no record of the appellant having been arrested by immigration officers.
14. Mr Hingora emphasised the difficulty in people in the appellant’s position being able to provide corroborative evidence. He suggested that the appellant’s previous representatives, Jein Solicitors, had been intervened by the SRA and that was indicative of their poor preparation of the appellant’s case in the past (Ms Lecointe confirmed that she was content if I independently confirmed the fact of that intervention by the SRA). Certain inconsistencies in the evidence could be explained by the passage of time, with the appellant and witnesses being asked to think back to events which occurred many years before. There was a good deal of documentary evidence. The gap between 2010 and 2017/2018 could be explained by the appellant effectively hiding away following her encounter with immigration officials. Mr Hingora submitted that overall there was sufficient evidence for the appellant to show that she had in fact been continuously resident in the United Kingdom since December 2000.
15. At the end of the hearing I reserved my decision.

Findings and conclusions
16. I have considered all the evidence to which I have been referred in the round, applying the balance of probabilities to the question of whether relevant facts have been proved by the appellant.
17. In considering the evidence in the round, I have taken account of a relevant contextual matter, namely the position of people unlawfully in this country who claim to have resided here for lengthy periods of time. This issue has been considered in the authorities: see for example, R (on the application of Khan) v SSHD [2016] EWCA Civ 416, Aissaoui v SSHD [2008] EWCA Civ 37, and ZH (Bangladesh) v SSHD [2009] EWCA Civ 8. In short, it has been acknowledged that those in the United Kingdom without leave are often likely to have no official documentation, particularly in the early period of their residence: Khan, at [61]. That is not to say that an absence of documentary evidence will be entirely irrelevant, but nor is it the case that an absence is fatal, or even necessarily of great significance, to a claim of lengthy unlawful residence.
18. The appellant’s continuous residence since 2018 has been preserved and I re-state that here.
19. I turn to the documentary evidence. In my view, it is considerable, particularly in the context of the overall period of claimed residence. I record here the absence of an allegation by the respondent that any of the documents have been forged.
20. The earliest evidence goes back to March 2003, that being a BT telephone bill. It is in the appellant’s name and includes a stamp confirming payment of the bill on 23 April of that year. There is also a certificate of attendance at a basic healthcare course, dated 17 June 2003, an accompanying letter concerning the same course, and a P60 covering the tax year 2002/2003. This evidence is indicative of the appellant being present in the United Kingdom at that time.
21. In respect of 2004, there are P45s confirming that the appellant left employments in February and May of that year, further BT bills, a certificate for the completion of a food hygiene training course in October, payslips, a P60 for the tax year 2003/2004, an NHS medical card, hospital letters from two London hospitals, a GP appointment card, and a church letter. Again, I find that this evidence, taken in the round, is indicative of the appellant having been resident in the United Kingdom. Matters such as employment, the undertaking of courses, and attendance at medical centres are probative (but not decisive) of the core issue in this case.
22. For 2005, there are further BT bills, a P60 for the tax year 2004/2005 and a GP appointment card. The evidence for this year is clearly less than in previous years, but nonetheless has some value as to the appellant’s residence.
23. The year 2006 is covered by a certificate for a training course in relation to those working with children, BT bills, a certificate of completion of a food hygiene awareness course, a P60 covering the tax year 2005/2006, and an HMRC letter. Again, the evidence is of some probative value.
24. 2007 is covered by more BT bills, payslips, certificates of attendance at courses, and a P60 covering the tax year 2006/2007. The evidence is limited, although of course I consider it in the context of the evidence as a whole.
25. For 2008 I have seen BT bills and post office receipts confirming payment thereof, a certificate of attendance for a health and safety course, payslips, and a P60 for the tax year 2007/2008. As before, the evidence is relevant to my consideration of the appellant’s case as a whole.
26. For 2009, there are BT bills, a P45, payslips, and a P60 for the tax year 2008/2009. This is relevant evidence.
27. On a more general level, I have carefully considered the GP patient records contained in the main bundle. Amongst other matters, these are strongly indicative of the appellant having attended appointments in person over the course of the period from August 2004 to late 2010. I find these records to be reliable and significant.
28. There is a fairly significant gap in the documentary evidence, covering 2010-2018. The only item of evidence within that period is a certificate for a Level 2 Award in Health and Safety in the Workplace, dated 24 August 2012. This confirms that the appellant undertook an exam on 11 August of that year. The absence of a residential address or other personal information on the certificate does not in any way undermine its reliability; it was issued by the Chartered Institute of Environmental Health and would not include such details. Having regard to this document in the context of the evidence as a whole, I find it to be reliable evidence of the appellant’s residence in this country in August 2012.
29. Overall, I find that the documentary evidence is significant. Whilst it clearly does not cover every month of every year between 2003 and 2018, it nonetheless represents a strong indication of residence at multiple points over the course of time. The nature of the evidence is, in my judgment, able to place the appellant in this country at each of those points in time.
30. I turn to the appellant’s evidence of how she came to the United Kingdom. Her witness statement is thin on detail. At the hearing, she expanded quite significantly on the particular circumstances which she claimed led to her coming to this country and then her situation between 2000 and 2002. She told me that a man, Peter Okafor, had arranged everything for her, including a passport and all other necessities. She emphasised that he was not her husband, but implied that he was perhaps a boyfriend or simply an acquaintance who could facilitate entry to this country. The appellant told me that Peter had promised her work and a better life in the United Kingdom, but after arrival he abused her and prevented her from going out and having any meaningful life of her own. He did all the shopping, and she was forced to stay at home and cook. She told me that she had been the subject of domestic abuse.
31. None of the above was included in the witness statement and Ms Lecointe submitted that it was a complete fabrication. Having considered that evidence together with all other evidence and relevant considerations, I disagree.
32. I treat the evidence with real caution because it is a simple fact that it was not included in the statement. Having said that, I saw and heard the appellant giving her evidence and, in my view, it was provided in a compelling manner. The appellant was visibly upset and I am satisfied that this represented genuine emotion on her part. Her evidence about the abuse was corroborated by her brother’s evidence. He acknowledged that he had no direct evidence of the abuse, but, unprompted, confirmed in his oral evidence that the appellant had told him about it after she went to live with him. I find that the appellant’s evidence is not inherently implausible, albeit that it was not mentioned in the witness statement. I have been able to confirm through the SRA website that Jein Solicitors were in fact intervened by the SRA and the firm was closed down on 24 October 2024. Significantly, the website confirms that by a decision dated 9 January 2024, a decision had been made to refer the specific solicitor who had conduct of the appellant’s case to the Solicitors Disciplinary Tribunal (the referral was not made in connection with the appellant’s case). I regard this matter as relevant to the appellant’s assertion that she had provided relevant information about her circumstances when coming to the United Kingdom to her previous solicitor, but this had not apparently been acted on or included in the witness statement. It lends credence to the implicit suggestion that the solicitor did not properly prepare the appellant’s case.
33. I have considered why the information about Peter was not included in an additional witness statement for the purposes of the hearing before me. After all, the appellant could be expected to prepare herself in readiness for the hearing and to have appreciated that some of her story had not been included in writing. I am conscious that the funding of the appellant’s appeal has been a matter of real difficulty for her (as confirmed by previous emails from the current solicitors and Mr Hingora’s instructions). It may be that there was simply insufficient funds to have a new (and fuller) witness statement drafted.
34. In any event, I do not regard the absence of the information in the witness statement as being fatal to the appellant’s credibility.
35. There was a discrepancy in the evidence of the appellant and her brother as to the precise circumstances of how she first came to his house in 2002. The appellant told me that she had called her brother and asked to come to his house. Mr Owagwu told me that she had not called him directly and that perhaps she had made contact through his wife or some other means. In certain circumstances, this discrepancy would represent a significant problem for the appellant. However, its reduced by two considerations: first, it is to be placed in the context of the evidence as a whole, much of which is generally supportive of the appellant’s overall claim; second, as Mr Hingora rightly pointed out, the appellant and her brother were being asked to recall very precise events which are said to have occurred some 22 years ago. It is plausible that precise recollections will have differed, without the appellant or her brother necessarily being untruthful.
36. There is evidence in the appellant’s medical records to indicate that she had a hysterectomy in October 2005 at Guy’s and St Thomas’s Hospital. However, one entry, dated 3 March 2008, might at first glance give the impression that the procedure took place at that point in time. Ms Lecointe submitted that this was a problematic discrepancy. I disagree. Reading the record sensibly, it is clear enough that the operation in fact took place in October 2005. Apart from the other references to that date in the records, the entry of 3 March 2008 in fact refers to the procedure having taken place in October 2005 and that the March 2008 entry related to a review. I find that the appellant did in fact undergo the procedure in October 2005, as she claims. Self-evidently, that places the appellant in this country at that point in time.
37. The appellant told me in her evidence that she did not have a National Insurance number. It is clear that she did in fact have a number, as it is referred to in a number of the documents contained in her bundle (for example, payslips and P45s). Ms Lecointe suggested that the appellant was lying. That is possible, but I find that she was not. It may be that she honestly but mistakenly believes that she does not currently have an extant number, given the length of time since she last worked (I am assuming that once a number is allocated, it will remain on record unless in some way revoked). It may be that she did not want to fully acknowledge that she had worked in this country unlawfully in the past. Either way, the documentary evidence, which is all in her own name, satisfies me that she did have a number and that her oral evidence does not significantly undermine her overall credibility.
38. I turn now to the gap in the documentary evidence between 2010 and 2018. In essence, the appellant’s explanation for this is that she was not working, had not been unwell, and was generally afraid following her claimed interaction with immigration officers at some point, which I understand to be in or around 2010.
39. Does this explanation stand up to scrutiny? Overall, I am prepared to accept that it is more likely than not that she was encountered during an enforcement visit by immigration officers in or around 2010, or in some other way had an interaction with the immigration authorities at that time. This findings based on the following considerations.
40. First, the appellant has not provided any documentary evidence in relation to an arrest by immigration officers, although it is of note that she was not in fact asked in cross-examination as to whether she had been provided with documents. Ms Lecointe asserted that there was no record of any interaction with the appellant, but there is in fact no evidence from the respondent to that effect, although I of course recognise that the burden of proof rests with the appellant. The absence of documentary evidence is a concern.
41. Second, it is it is clear that the appellant had been working unlawfully (as evidenced by payslips, P45s, and P60s). It is not inherently implausible that she would have been encountered whilst working or in some other context.
42. Third, if the appellant had encountered immigration officers/officials, it is plausible that she would have been fearful as to her position in this country. She knew that she was here unlawfully, but had previously been able to live and work without an immediate threat of being removed. That would have changed (at least on a subjective level) following an interaction.
43. Fourth, if the appellant had decided to stop working then it follows that she would not have had any documents relating to employment. If the appellant had not required medical treatment of any sort during the period in question, it follows that no such treatment would have been recorded.
44. Even if the appellant had not been encountered by immigration officers or had any other form of interaction with the authorities in or around 2010, I nonetheless regard the absence of documentary evidence covering the period 2010-2018 (aside from the 2012 certificate) as being less significant than suggested by the respondent. This is for two principal reasons. First, what I have said in the previous paragraph would apply if the appellant had stopped working and been in relatively good health even if she had not encountered the authorities. Second, there is the evidence of the two witnesses.
45. Contrary to Ms Lecointe’s submission, I did not regard Oni Owagwu’s evidence as being “evasive”. He had been consistent as to when the appellant came to live with him and what she had told him about Peter. He was not been cross-examined about other matters, including his written evidence that the appellant had lived with him for a considerable period of time and covering the period 2010-2018. I find that Mr Owagwu’s evidence to be generally reliable.
46. Perhaps more importantly, I found the evidence of Jonathan Owagwu to be strong. He gave his oral evidence in a candid and considered manner. He did not seek to exaggerate any of his answers. When asked about his memories of living with the appellant at the family home, he clearly did his best to think back to when he was a child. I was struck by his evidence as to his memories of the appellant at home before he went to school in the morning and when he came back, as well as his clear recollection that the appellant would look after him when his parents travelled abroad on occasion. He stated in terms that he had early memories of the appellant living with him and the family when he was in Year 2 primary school, that being approximately 2008, and that she only moved out in 2022. Those early memories clearly did not preclude the fact that the appellant lived at the family home prior to 2008; the witness had only been attempting to recall his early memories of her The moving out date was consistent with the appellant’s own evidence. I find Jonathan’s evidence to be entirely credible and it provides good support for the appellant’s case.
47. That brings me to one particular aspect of Jonathan’s evidence, namely what he said about family funerals and other events in Nigeria which he “assumed” the appellant might have attended together with his parents. Ms Lecointe suggested that this demonstrated that the appellant had in fact left the United Kingdom and then re-entered at some point. I reject that submission. The witness clearly stated that he had only “assumed” that the appellant would have gone to an event such as a funeral. At no stage did he states that he knew this to have been the case. I note also that the witness’ father had not been asked about whether the appellant had travelled to Nigeria (or anywhere else) while she lived with the family. Overall, I find that Jonathan’s evidence was based simply on an assumption on his part and did not represent reliable evidence that the appellant had in fact left the United Kingdom.
48. Having dealt with the relevant aspects of the evidence before me, I now state my overall findings of fact.
49. Having regard to everything set out above, I find that appellant has proved that she arrived in the United Kingdom on 10 December 2000 and that she has resided here continuously ever since. It follows that, at the date of her application for leave to remain (treated as a human rights claim) on 29 March 2021, she had been continuously resident here for over 20 years and that she has to date been continuously resident for 24 years and 4 months.

Conclusions
50. In light of my core finding of fact, above, the appellant satisfies paragraph 276ADE(1)(iii) of the Immigration Rules and would, if necessary, also satisfy paragraph 5.1 of Appendix Private Life to the Rules.
51. Ms Lecointe has accepted that if the Rules were satisfied, the appellant was entitled to succeed in her appeal. In light of TZ (Pakistan) v SSHD [2018] EWCA Civ 1109, and in the absence of any suitability issues, that position is correct.
52. I therefore allow the appeal on the basis that the appellant satisfies the Immigration Rules and there is no public interest in her removal from this country. The respondent’s decision therefore constitutes a disproportionate interference with the appellant’s private life under Article 8.
53. In light of the above, it is unnecessary for me to go on and consider the very significant obstacles test. It would in any event be an artificial exercise because I have not made, and am not prepared to make, speculative alternative findings as to when the appellant may otherwise have entered the United Kingdom and resided here.

Anonymity
54. There has been and is no basis for making an anonymity direction in this case.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.
The decision in this appeal is re-made and the appeal is allowed on Article 8 grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 23 April 2025

ANNEX: THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005565

First-tier Tribunal No: HU/56142/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
…………………………………

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
PHILOMENA VINCENT
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr M Broadwalla, Counsel instructed by AR Law Chambers
For the respondent: Ms J Isherwood, Senior Presenting Officer

Heard at Field House on 22 January 2025

DECISION AND REASONS
Introduction
1. The appellant, a citizen of Nigeria, appeals with permission against the decision of First-tier Tribunal Judge Webb (“the judge”), promulgated on 19 June 2024 following a hearing on 26 April 2024. By that decision, the judge dismissed the appellant’s appeal against the respondent’s refusal, dated 31 March 2022, of her human rights claim which had been made on 29 March 2021.
2. In summary, the appellant asserted that she entered the United Kingdom on 10 December 2000 and had resided in this country continuously ever since, albeit unlawfully. She relied on the 20 years’ rule under paragraph 276ADE(1)(iii) of the Immigration Rules (“the Rules”) which applied at the date of her human rights claim. Alternatively, the appellant relied on 276ADE(1)(vi) of the Rules and the very significant obstacles criterion. As a backstop, she relied on Article 8 in its wider context.

The judge’s decision
3. The judge noted the failure of the appellant’s previous representatives to comply with directions. As a result, there had been no skeleton argument and therefore no respondent’s review: [3]. The judge listed in detail the contents of two bundles submitted by the appellant. These contained a good deal of documentary evidence covering many (but not all) years of the claimed residence, together with a number of witness statements from individuals who did not in the event attend the hearing: [7]-[8]. At [9]-[13], the judge briefly summarised the appellant’s oral evidence.
4. The judge then turned to consider the first issue in the appeal, namely whether the appellant had lived continuously in United Kingdom for at least 20 years, with reference to paragraph 276ADE(1)(iii) of the Rules (that provision was deleted and, in similar but not identical terms, transferred into Appendix Private Life in June 2022. It is common ground that the transitional provisions of the Statement of Changes meant that paragraph 276ADE(1)(iii) applied to the appellant’s case): [19]-[20]).
5. The judge noted the absence of a passport or other documentation to show that the appellant had in fact arrived in this country on 10 December 2000; such documents as had been provided appeared to place her in the United Kingdom no earlier than 2003: [22]. In the judge’s view, the appellant’s “evidence” as to a “start date” in this country was therefore 2003. On this basis, she could not satisfy paragraph 276ADE(1)(iii): [23].
6. The judge turned to the question of whether the appellant had been continuously resident in the United Kingdom since 2003. He appeared to conclude that she had been here between 2003 and October 2009, but went on to find that there was a “very significant gap in the documentary evidence” between the autumn of 2009 and late 2018, notwithstanding a Level 2 Certificate in Health and Safety issued to the appellant on 11 August 2012: [24]. At [25], the judge noted the absence of any written explanation from the appellant for the lack of documentary evidence during the gap. He recorded her oral evidence in which she had explained that she went “underground” (the judge’s word, not hers) after having been caught working illegally. In the judge’s view, the lack of any “further explanation” and any Subject Access Request by her solicitors was worthy of note. Such a request might have “assisted the credibility of her oral account”. At [26], the judge records the non-attendance of any supporting witnesses at the hearing and that more recent documentary evidence appeared to show that the appellant was living in the West Midlands rather than London.
7. At [27], the judge said the following:
“There would appear to be additional facts relating to this case that, for whatever reason, the Appellant does not wish to provide. I do not intend to speculate on her reasons for this, but the vagueness and lack of detail in the account provided in her witness statement and oral evidence does not assist her credibility.”
8. The remainder of that paragraph emphasises the fact that the burden of proof rested with the appellant and that there was “little or no independent evidence covering the gap between 2009 and 2018. In conclusion, the judge found that, based on the oral and documentary evidence, the appellant had failed to demonstrate 20 years’ continuous residence.
9. At [28]-[32], the judge considered whether there would be very significant obstacles to the appellant’s re-integration into Nigerian society. In light of the appellant’s circumstances over time and as at the date of hearing, the judge concluded and that paragraph 276ADE(1)(vi) was not satisfied.
10. Finally, at [33]-[36] turned to consider Article 8 on a wider basis and undertook a proportionality exercise. Proceeding from the premise that the appellant had only been resident in the United Kingdom from late 2018 (presumably leaving out of account any previous period of residence in this country), the judge concluded that removal from United Kingdom in consequence of the respondent’s decision would not be disproportionate.
11. Accordingly, the appeal was dismissed.

The grounds of appeal
12. Three grounds of appeal were put forward: first, that the judge failed to consider the appellant’s evidence in the context of R (on the application of Khan)v SSHD [2016] EWCA Civ 416, failed to undertake any assessment of the appellant’s own credibility, and failed to have regard to a document which placed the appellant in this country in 2012; second, the judge’s proportionality exercise was flawed as a result of the errors alleged under the first ground; and third, the judge failed to assess and make reasoned findings on the appellant’s own evidence. It is clear that the first and third grounds overlap considerably.
13. Permission was granted by the First-tier Tribunal on all grounds.

Rule 24
14. The respondent has not provided a rule 24 response in this case.

Procedural issue: absence of a composite error of law bundle
15. The appellant’s representatives failed to provide a composite error of law bundle, contrary to the standard directions issued on 9 January 2025. On instructions, Mr Broadwalla informed me that the solicitors had been without funds until the day before the hearing, at which point they attempted to prepare a bundle. Mr Broadwalla acknowledged that this bundle was missing certain documents and that had attempted to put together a complete bundle.
16. I express my gratitude to Mr Broadwalla for his efforts to remedy the problem and for obtaining clear instructions. I have no reason to doubt what he relayed to me and I accept that the solicitors were without funds until 21 January 2025. I accept that this effectively prevented them from compiling and providing the requisite composite bundle. Therefore, I need not take any further action.
17. In the event, Ms Isherwood and I had all relevant materials except for the grounds of appeal, which were provided by Mr Broadwalla. Following a short adjournment, Ms Isherwood confirmed that she was content to proceed with the hearing.

The hearing
18. Mr Broadwalla relied on the grounds of appeal. He took the first and second of these together and submitted that the judge had made two interconnected errors: failing to have any regard to the relevant authorities (specifically Khan) which provided important context to cases such as the present; focusing almost entirely on the question of documentary evidence and failing to adequately assess or make any findings on the appellant’s own evidence and whether it was truthful not. Mr Broadwalla acknowledged that the appellant’s witness statement was light on detail, but this did not render it incapable of belief, particularly when read together with the oral evidence.
19. Ms Isherwood submitted that the grounds of appeal did not address the “gap” between 2009 and 2018. The appellant had been on notice of the issue and could have provided additional evidence. The judge was entitled to find that the appellant’s evidence was vague and lacking in detail. It was clear enough that the judge had the issue of credibility in mind when assessing the evidence as a whole. In respect of the 2012 Certificate, she accepted that it would not be usual for such a document to contain an individual’s residential address and/or the location of any test centre.
20. At the end of the hearing I reserved my decision.

Conclusions
21. In deciding whether the judge made material errors of law I must exercise appropriate restraint. The judge had before him a good deal of evidence, including that emanating from the appellant herself. He was the primary assessor of that evidence. It is not for me to simply substitute my own view for that of his, nor need I be satisfied that he provided anything beyond adequate reasons for his findings.
22. The so-called “long residence” provision involving those with no lawful status have featured in various iterations of the Rules and have been considered in the authorities: see for example, Aissaoui v SSHD [2008] EWCA Civ 37, ZH (Bangladesh) v SSHD [2009] EWCA Civ 8, and Khan, referred to earlier. I am satisfied that the last of these was cited to the judge. In the context of considering the lawfulness of the respondent’s restrictive view of what type of documentary evidence was required to support claimed long residence, at [61] of Khan, the Court stated that,:
“It is likely that those in the United Kingdom without leave, and therefore without status, will have no official documentation, particularly in the early period of their residence.”
23. This reality was a relevant aspect of the context in which the appellant’s claim had to be assessed, including not simply the nature of any documentary evidence, but also her own direct evidence. The fact that the judge did not specifically referred to Khan does not of itself disclose an error of law. However, on a fair reading the judge’s decision it is neither apparent nor implicit that he applied the contextual consideration to the evidence as a whole. Of itself, this would not satisfy me that there was a material error of law. It is, though, relevant to a more significant matter, namely that of the appellant’s own evidence.
24. The judge was undoubtedly right to remind himself that the burden of proof rested with the appellant and it was not for the respondent to demonstrate that the appellant had in fact left United Kingdom at some point and then returned. That being said, it is trite to say that an individual’s word is itself evidence and may be sufficient to prove disputed factual matters.
25. At [22], the judge noted the absence of documentary evidence as to the claimed date of entry and then at the beginning of [23] assumed that the appellant’s “evidence” of the “start date” was “early 2003”. In fact, the appellant’s evidence (contained in the witness statement and provided orally) was that she arrived 10 December 2000. The judge passed over this evidence without making any finding as to whether or not it was true. In respect of the absence of documentary evidence between 2009 and 2018 (except for the 2012 Certificate, as to which, see below), the judge observed at [25] that the appellant had provided “no further explanation” beyond her evidence that she had gone “underground” having been caught working illegally. Again, the judge made no finding as to whether this evidence (i.e. the explanation that had been provided) was truthful. It is unclear what “further explanation” was required or why its absence rendered what she originally said untrue.
26. The judge did refer to credibility at two points in his decision. When addressing the appellant’s explanation of having been caught working illegally, he noted the failure of her previous representatives to have made a Subject Access Request and concluded that such action might have “assisted the credibility of her oral account”. That does not, however, represent a finding on the truthfulness of what the appellant had actually said. Further, the failings of the representatives was not a sound basis on which to implicitly reject the truthfulness of her evidence (if that was what the judge had done). Finally, evidence from the respondent might (it of course being entirely speculative) have assisted the appellant’s credibility, but its absence would not of itself have justified a finding (express or implicit) that she was lying.
27. The second reference to credibility is at [27], which I have quoted previously. With respect, it is simply not clear what “additional facts” the judge was referring to and it is therefore difficult to disentangle that consideration from the judge’s view that the appellant’s evidence was vague and lacking in detail. Further, or in any event, the judge may have been entitled to observe that a lack of detail (and I accept that the witness statement at least was light on particulars) did not “assist [the appellant’s] credibility”, but once again that could without more have justified rejecting the entirety of her evidence. The judge’s reference at the end of [27] to the “oral and documentary evidence” is not of itself sufficient to remedy the flaws I have identified.
28. It is of relevance that this is not a case in which the appellant had failed to provide any corroborative documentary evidence in support of her assertions. It is clear that a large amount of such evidence was before the judge and it seems to have been accepted that she had resided in this country between 2003 and 2009 and then again from late 2018 to the date of hearing. Therefore, I am not prepared to conclude that the judge was entitled on any view to (implicitly) reject the appellant’s own evidence because it was fanciful and/or not in any way backed up by independent evidence.
29. This is not a case in which there were obvious adverse credibility issues arising which might have been relied on to render the appellant’s evidence generally unreliable. Certainly, none were cited by the respondent in her decision nor any referred to by the judge.
30. I turn to the 2012 Level 2 Certificate. In principle, this was capable of corroborating the appellant’s assertion that she had remained in the United Kingdom at all times. It might have placed her in this country during the “very significant” gap identified by the judge as running from 2009 until late 2018. At [24], the judge did not find that the document was a forgery. In appearing to reject its probative value, he relied on the fact that the certificate did not state the appellant’s residential address or the location of the examination. Both of those reasons are inherently problematic. As recognised by Ms Isherwood, it would in her words have been “unusual” for such information to have been contained on an educational certificate issued by an awarding body (in this case, the Chartered Institute of Environmental Health). With respect, “unusual” understates the position: an awardee’s residential address and/or examination location would not have appeared on the certificate itself. It was not rationally open to the judge to rely on the absence of such information on the face of that particular document when rejecting its evidential value. That being the case, the judge erred in rejecting corroborative evidence which potentially placed the appellant in the United Kingdom during what he considered to be a vacuum of documentary evidence. When taken with the central error I have already identified, this too represents a flaw in the decision.
31. I appreciate that the overall evidential picture put forward by the appellant on appeal was not what it might have been: the absence of supporting witnesses and the fairly brief witness statement did her claim no favours. These shortcomings did not however obviate the need to make findings on what evidence there was.
32. In summary, the judge erred in law by failing to make clear findings on the appellant’s own evidence relating to her claimed long residence in this country. Even if negative credibility findings were deemed to be implicit, there has been no adequate reasoning in support of these. The errors are clearly material to the judge’s conclusions on long residence.
33. For the reasons set out above, I set the judge’s decision aside. There was a discussion at the hearing as to the extent to which I should do so. Ms Isherwood correctly pointed out that the judge’s findings on very significant obstacles had not been challenged in the grounds and submitted that these should be preserved. Mr Broadwalla submitted that if the appellant had in fact been in the United Kingdom for longer than the judge found, the assessment of very significant obstacles must be flawed.
34. I see merit in both positions. In the end I have concluded that only some findings of primary fact should be preserved. It would be artificial to preserve the judge’s overall conclusion on very significant obstacles, as he ultimately found that the appellant had only been in the United Kingdom from May 2018 (albeit, that he appears to have accepted that she had been in this country for a period of time before that and had, presumably, returned to Nigeria and then re-entered in some way - although there was no express finding to that effect): [33]. It may be in due course that the appellant is found to have entered this country earlier and resided here continuously. Notwithstanding the possibility of success under the 20 years’ rule, such a finding might have an impact on the very significant obstacles test.
35. The findings I do preserve are contained in [30]-[31] of the judge’s decision. They are:
(a) the appellant speaks English and Igbo;
(b) the appellant has had regular contact with the Nigerian diaspora in the United Kingdom;
(c) the appellant has relatives in the United Kingdom who have to date assisted her and there is no evidence to suggest that they could not or would not continue to do so if she returned to Nigeria;
(d) as at the date of the judge’s decision, the appellant had no material health conditions.
36. In addition, there is no reason why I should overturn the judge’s finding at [33] that the appellant has, at least, been in the United Kingdom from late 2018 onwards. That was fully supported by the documentary evidence and it appears as though the respondent acknowledged the weight of the evidence regarding this period.

Disposal
37. I have carefully considered whether to retain this appeal in the Upper Tribunal or remit it to the First-tier Tribunal, bearing in mind paragraph 7.2(b) of the Practice Statements and the guidance set out in AEB v SSHD [2022] EWCA Civ 1512. Whilst the parties took the view that remittal would be appropriate if I were to set the judge’s decision aside, I have concluded that the case should be retained in the Upper Tribunal. The errors of law I have identified did not involve procedural unfairness. The appellant had been able to put a case to the judge. The legal issues are now clear. There is a good deal of documentary evidence already provided. The Upper Tribunal is able to carry out the necessary additional fact-finding and, light of my error of law decision and the relevant legal framework, that exercise will not be unduly extensive. Re-making the decision in the Upper Tribunal is consistent with the overriding objective. Taking all considerations into account, retention is the right course of action.
38. In order to progress this appeal, directions to the parties are issued, below.

Anonymity
39. There is clearly no basis on which to make an anonymity direction in this case and I do not do so.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I exercise my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.
This appeal is retained in the Upper Tribunal for the decision to be re-made in due course.

Directions to the parties
1. This appeal will be listed for a resumed hearing in due course;
2. No later than 35 days after this error of law decision is sent out, the appellant must file with the Upper Tribunal (using CE-File) and serve on the respondent (by email) an indexed and paginated consolidated bundle containing all of the evidence now relied on. The evidence must be directed to the live issues in this appeal;
3. No later than 49 days after this error of law decision is sent out, the respondent may file and serve any additional evidence relied on;
4. No later than 10 days before the resumed hearing, the appellant must file and serve a skeleton argument. This must be as concise as possible and include page references to the relevant evidence contained in the consolidated bundle;
5. No later than 3 days before the resumed hearing, the respondent must file and serve a skeleton argument. This should set out any accepted periods of residence in the United Kingdom, in addition to 2018 to date.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 23 January 2025