Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005884

First-tier Tribunal No: HU/53189/2023

LH/01824/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th July 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

DM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance.
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 2 July 2025

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (’the Judge’) promulgated on 19 November 2024, in which the Judge dismissed his appeal against the refusal of his application for leave to remain in the United Kingdom on the basis of his claimed relationship with his son, A whose mother is a British citizen.
2. Permission to appeal was granted by Judge of the Upper Tribunal, having been initially refused by a judge of the First-tier Tribunal, and initially listed for an error of law hearing on 14 May 2025 before a panel composed of Upper Tribunal Judge Reeds and Deputy Upper Tribunal Judge Greer. Shortly prior to the hearing the Applicant’s representatives withdrew following which a series of directions were issued by Judge Reeds dated 14 May 2025 sealed and sent to the parties on 29 May 2025.
3. The Appellant failed to attend this hearing. I am satisfied there has been lawful service of the notice of hearing to the address nominated for service containing notice of the purpose, date, time and venue of these proceedings. No explanation for the Appellant’s absence has been received or any reason made out for why he should not be here. No application for an adjournment has been made that has been granted.
4. Although the above facts do not warrant the Tribunal adjourning this hearing I have gone on, as required, to consider whether the interests of justice require such a stance to be taken. The failure of the Appellant to attend and explain why he has not attended means it is very difficult to understand why the interest of justice would warrant anything other than the Tribunal proceeding. The Appellant is now unrepresented but that does not, per se, prevent the Tribunal going ahead, as many attend their appeals as litigants in person. It is also a relevant factor when considering the overriding objective that unnecessary delays should not be encouraged, that considerable resources have already been expended in arranging this hearing which will be wasted, and for the reasons that I set out below this is an appeal in which there is only one outcome. Therefore, even if the matter had been adjourned, on the next occasion exactly the same decision will have been made on the facts known to the Upper Tribunal.
5. Having considered all relevant aspects I conclude that Appellant has not established any reason why the Tribunal should not proceed, nor is it made out that the interests of justice require the appeal to be adjourned and not to go ahead.
6. The Appellant is a citizen of Albania who the Judge records was in the UK illegally from May to December 2020. His evidence was that he met AT in August 2020. They started a relationship in September 2020 which he claims led to Child A being conceived. The Appellant stated that in November 2020 AT suspected she was pregnant but around that time Appellant’s mother called him to says father was very ill as a result of which he returned to Albania in the back of a lorry. The Appellant states that while he was out of the UK Child A was born on 19 July 2021.
7. The Appellant re-entered the UK in September 2021 illegally and claimed asylum. The Judge records at [12] the Appellant not mentioning Child A, which he later claimed was because he did not know whether he had a child or not at that time. The Judge records contact being made between the Appellant and Child A in August 2022 after which the Appellant moved in with AT and Child A.
8. At [11] the Judge writes that as they were back in a relationship they decided to register the Appellant’s name on the birth certificate. The original birth certificate was left blank in this respect. The Appellant was registered on 11 October 2022 as Child A’s father following which he made his application for leave to remain on 8 November 2022.
9. Sometimes after, which the Judge records was not specified by either the Appellant or AT, they separated. The Appellant continue to have contact with AT and Child A, although in December 2023 she moved to Glasgow to be near her family, following which the Appellant had contact with Child A both remotely and by visiting.
10. The Judge records at [17] that the first thing the Appellant needed to prove was that he was the father of Child A as it was not suggested there was any way in which the appeal could succeed without this. The Judge notes that the issue of DNA was first raised by the Appellants Counsel in a skeleton argument dated 10 April 2024 on the basis that paternity was disputed [18].
11. Despite there being an obvious evidential advantage of such evidence being obtained the Judge was not provided with any DNA test results. The Judge finds the decision not to undergo DNA tests to be ‘significant’ even if not determinative of the issue of paternity [20].
12. The Judge notes at [21] the Appellant’s evidence was that he was in a relationship with AT in the UK in 2020 and that it was her evidence that she did not have sexual relations with anybody else at that time.
13. The Judge notes the birth certificates, including the second one which was obtained over a year after the birth. The Judge records being satisfied at that time the Appellant was in a relationship with AT and that she was planning a life with him in a fatherly role for Child A and, accordingly, that the second birth certificate provided strong support for the Appellant being Child A’s father [22].
14. The Judge took into account other aspects of the evidence and records at [26] that apart from the DNA issue there were other issues that undermined the Appellant’s claim to have proved he is the father. The Judge records that there was nothing in the evidence to support the Appellant’s claim that he was in fact in the UK in 2020 and that despite claiming that he felt driven to leave the UK in 2020 as a result of his father’s ill-health very little detail of this had been provided.
15. Having weighed up the competing arguments are Judge concludes being left not knowing for sure what the true position is and that there was sufficient reason to doubt that the Appellant is the father of Child A, leading to a finding at [30] the Appellant had not proved he was the biological father of Child A, although the matter could be resolved simply by arranging DNA tests and for a further application to be made.
16. The Judge found the findings relating to paternity were determinative of the Article 8 family life appeal [31].
17. For the reasons set out in the determination the Judge dismissed the appeal on all grounds.
18. The Appellant sought permission to appeal with the assistance of his own representatives submitting the Judge erred as (i) no weight should be given to the fact that there was no DNA evidence, (iii) insufficient weight appear to have been given to the child’s mother’s evidence and (iii) the Judge erred making an adverse conclusion from the lack of evidence of the Appellant’s father’s illness which was a matter the Appellant could not have reasonably contemplated - although he did respond to questions put to him on that subject.
19. The original refusal of permission was on the basis the grounds are disagreement with the findings made by the Judge who gave careful consideration of the evidence, was entitled to weigh the evidence as set out in the decision, and gave cogent and detailed reasons for the findings, all of which were open to the Judge on the evidence. It was therefore found the grounds did not identify any arguable error of law material to the outcome of the appeal.
20. Permission to appeal was granted by a judge of the Upper Tribunal on a renewed application on 18 March 2025 on the basis it was said to be at least arguable that the Judge had failed to provide adequate reasons for rejecting the appellant’s ex-partner’s evidence that he is the father of her baby, and that it was arguably unfair with the judge to rely on matters not put to the Appellant in cross examination such as the lack of detail regarding travelling from the UK to Albania and his father’s illness.
21. Directions were given for the parties to provide copies of their notice of proceedings in relation to the proceedings before the Judge.
22. The Secretary of State opposes the appeal in a Rule 24 reply dated the 26 June 2025 the operative part of which is in the following terms:

3 The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.
4. The respondent will submit that the grounds of appeal amount to mere disagreement and do not establish a material error of law. The respondent will submit that as has been demonstrated by the ROP and respondents review, the appellants paternity of the sponsor has never been accepted. In these circumstances the Judge is entitled to place weight on and note the lack of any DNA evidence which as they note would be a quick and simple way to demonstrate paternity. As the grounds acknowledge the Judge correctly noted that DNA evidence is not a requirement, this is accepted but does not prevent a Judge from noting its absence and giving weight to this fact, weight being a matter for the Judge. The Judge does not find this issue determinative but goes on to consider the evidence that was before them and permissibly finds that it doesn’t demonstrate to the requisite standard of proof that the Appellant is his claimed child’s father.
5. Secondly, the grounds assert that insufficient weight was placed on the child’s mothers evidence. The respondent will submit, again that weight is a matter for the Judge and disagreements over weight do not establish an error of law. Secondly, as the ROP will demonstrate the child’s mothers’ oral evidence was that she added the Appellants name to her child’s birth certificate to assist him in remaining in the UK.

“How did it come to be then that Mr Mhilli was put on cert?
They were spending more time together, and I realised that this would be a way to help him so I agreed to put him on

This would be a way to help him, you mean to remain in UK?
Yes

And when you say I agreed to put him on –did Mr Mhilli ask you?
We made the decision together

Who made first suggestion?
Mr Mhilli made the suggestion”

In light of this evidence, which the judge had the benefit of hearing, there is nothing irrational/ perverse in their finding at [22] that the birth certificate doesn’t provide strong support for the Appellant being the child’s father due to its timing.
6. Thirdly, the grounds assert essentially that it was unfair for the Judge to draw an adverse conclusion from the lack of evidence of the Appellants fathers illness which he claims prompted him to leave the UK illegally. This is not accepted. The Burden of proving his case of course rests on the Appellant. He asserted that he was motivated to leave the UK from around Dec 2020 until after his son’s birth in late 2021 because his father was unwell. As the Judge notes, fairly, if this were the case he would be able to provide documentary evidence to show this. It is also noted that he has not even given details of what he says was wrong with his father, that he is still alive so clearly wasn’t terminally ill and that it would be extremely unusual having not long entered the UK on his account to illegally depart and re-enter again. [27, 28] expecting corroborative evidence of this or at the very least a detailed description of these events is not unfair. The Judge also accurately notes that there is no supportive evidence of his presence in the UK prior to his claimed illegal departure [26], this finding is unchallenged.
7. In summary, the grounds do not establish a material error of law, the decision is well reasoned, cogent and the Judge was fully entitled to ultimately find that the Appellant had failed to prove his case that he was the biological father of the sponsor to the required standard, the grounds amount to mere disagreement with this finding.
Discussion and analysis
23. The Judge identified at the outset that the key issue in this appeal was whether the Appellant had established a genuine and subsisting parental relationship with Child A.
24. In determining that question the Judge clearly took into account, with the required degree of anxious scrutiny, both the documentary and oral evidence, including that of the Appellant and Child A’s mother.
25. The Judge does not dismiss this appeal solely as a result of the absence of DNA evidence although, as noted, had three-person DNA evidence been provided that was likely to have been determinative of the appeal if it confirmed the Appellant’s paternity of Child A.
26. The lack of DNA evidence was one matter considered by the Judge together with documentary and oral evidence. It is clear, as noted from the questions and answers given above, that the chronology in relation to how the Appellant’s name appeared on Child A’s birth certificate in itself gave rise to justifiable concern in the mind of the Judge.
27. The simple fact is that having considered the evidence properly the Judge made a number of findings which are supported by adequate reasons. Some of those findings have not been challenged as noted in the Rule 24 response. It cannot be said the findings made are outside the range of those reasonably open to the Judge on the evidence. In particular, it has not been shown that in light of the evidential issues identified by the Judge the finding the Appellant had not discharged the burden of proof upon him to prove he is the natural biological father of Child A is rationally objectionable. It is, in fact, the only logical conclusion the Judge could have arrived at on the available evidence.
28. I therefore find that the Appellant has failed to establish that the Judge’s findings were ‘plainly wrong’ to adopt the terminology of the Court of Appeal. On that basis the appeal is dismissed.
Notice of Decision
29. No legal error material to the decision of the First-tier Tribunal has been made out.
30. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 July 2025