Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2024-005925

First-tier Tribunal No: EU/50686/2024
LE/04091/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th June 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

JORGE LUIS RAMIREZ PEREZ
(ANONMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARtment
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 2 May 2025

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Buckwell promulgated on 1 November 2024 (“the Decision”). By the Decision, the Judge dismissed on the papers the appellant’s appeal against the refusal of a grant of status under the EU Settlement Scheme (“EUSS”).

Relevant Background

2. The appellant, whose date of birth is 1 March 1987, is a citizen of the Dominican Republic. On 2 March 2023 the appellant made an in-country application for a grant of status as the spouse of a relevant EEA citizen. His nominated sponsor was Marielis Cristina Arias Perez. The appellant provided a copy of a marriage certificate dated 3 March 2023 certifying that he had married Marielis Perez in the Dominican Republic on 18 July 2017. According to the marriage certificate, Marielis Perez was also a citizen of the Dominican Republic. In his application form, the appellant said that he had arrived in the UK to begin his residency in 2022, and that the reason for him applying for a grant of status was that his wife had asked him to stay.

3. In a Reasons for Refusal Letter (“RFRL”) dated 19 January 2024, the respondent said that the appellant had provided insufficient evidence that he was the spouse of a relevant sponsor. This was because they had concerns regarding the credibility of the marriage certificate. The security features were not as expected; the text was overlapping; there were clear signs that the document had been edited as there was blurred out text in the background of the certificate; and the names of the marriage certificate appeared to have been altered. In addition, in his application for a visit visa made in May 2022, he had said that his spouse was Estefany Sugeid de la Rosa Mejia, and that he had had two children with her.

4. The respondent had considered whether he could qualify in the alternative as the durable partner of his sponsor. He met the criteria to provide alternative evidence of being a durable partner of a relevant sponsor and, as such, consideration had been given as to whether the evidence provided showed that the partnership was formed and was durable before 23:00 GMT on 31 December 2020, and that the partnership remained durable at the date of application.

5. It was not accepted that the partnership was formed and durable before 23:00 GMT on 31 December 2020, because the evidence suggested that he was married to another person. It was also not accepted that the partnership remained durable at the date of application, because there was insufficient evidence of cohabitation at the date of application. He had provided bank statements, an affidavit from his landlord, and a letter from his GP Practice. However, these documents were all dated in 2023.

6. The appellant pursued an appeal as a litigant in person. In his Appeal Reasons he explained why he believed that the decision was wrong. The documents were 100% legal, and if verification was needed, his lawyer in the Dominican Republic could do this. He had never sent any fake documents. The respondent was invited to contact any office in the Dominican Republic for confirmation that all the documents were 100% authentic.

7. The reason why he had entered the UK on a tourist visa was that, even though his wife lived in the UK, his initial idea was only to come here to visit her, and he would then return to his country, where he had quite a good salary. However, while he was here, the company fired him from his work and notified him of this via a phone call. It was then that he and his wife decided that he should stay in the UK and apply to settle under the EUSS.

8. The lawyer in the Dominican Republic who made his tourist visa application asked him if he had children. He answered ‘yes’ because he had two children from a previous relationship with Estefany Sugeid de la Rosa Mejia. But he had not lived with his ex-partner for many years.

9. If the Home Office required more documents to show that he was in an ongoing relationship with his wife, he could send many more, such as the certificate for the house that he and his wife had bought together in 2019.

10. In a Review dated 12 September 2024, the Pre-Appeal Review Unit (“PARU”) submitted that as per MA (Bangladesh) [2016] EWCA Civ 175, there was no duty upon the Secretary of State to verify the documents relied upon by the appellant. She was only required to assess the documents in line with Tanveer Ahmed. Furthermore, most of the additional evidence that had been provided in support of the appeal was in a different language. He had not provided a translation for them, or an explanation to state what each document was evidencing. Therefore, the respondent was unable to attach any weight to them.

11. On 8 October 2024, a Legal Officer noted that the Review stated at para 8 that the respondent was content for the appeal to proceed to an oral hearing. However, the appellant had paid for a decision without a hearing, and so the case should therefore be allocated as a paper case unless there was an objection from the respondent.

12. According to the case record on the CCD (aka “MyHMCTS”) file, there was no confirmation from the respondent that the appeal should be set down for an oral hearing, and accordingly the appeal was assigned as a paper case to Judge Buckwell at Hatton Cross on 18 October 2024.

The Decision of the First-tier Tribunal

13. In the Decision at para [4], the Judge noted that the appellant had paid an appeal fee in the sum of £80. That did not provide for an oral hearing, and an oral hearing was not requested by the respondent. Therefore, it was appropriate and in the interests of justice that the appeal should be determined on the documentation available to the Tribunal.

14. At para [7], the Judge observed that the majority of the documents were in Spanish; that there was no certified English translation of them; and that burden of proof rested with the appellant.

15. At para [12], the Judge observed that the appellant had chosen not to request an oral hearing at which perhaps he and the sponsor could have provided more information, and at which he would have been entitled to give oral evidence, and to call evidence from his stated spouse. That option, however, was not taken. Therefore, for the reasons set out above, the appellant had not discharged the burden of proof.

The Grounds of Appeal to the Upper Tribunal

16. The appellant settled his own grounds of appeal. His central complaint was that the First-tier Tribunal had not considered all the evidence that he had provided.

The Reasons for the Eventual Grant of Permission to Appeal

17. Permission to appeal was refused by First-tier Tribunal Judge Mulready on the basis that the grounds did not identify any arguable error of law that was material to the outcome of the appeal.

18. However, following a renewed application for permission to appeal to the Upper Tribunal, on 3 March 2025 Upper Tribunal Judge Landes granted permission for three reasons.

19. Firstly, it was arguable that there was a procedural irregularity which affected the fairness of the proceedings. The Legal Officer was expected to assist appellants in person by asking clarifying questions and providing appropriate directions. She could see that the Legal Officer gave directions on 24 April 2024, directing the appellant to provide a bundle and explaining what the bundle should contain. However, although the Legal Officer had reviewed the supporting evidence and would have been aware that much of it was not in English, they did not explain in the directions that the Tribunal would not obtain translations, and they needed to be provided by the appellant. It appeared that the evidence in Spanish might be relevant to the question of whether the appellant and his claimed wife were in a durable relationship, and it might be relevant to other aspects of the appeal.

20. Secondly, it was arguable that the Judge erred by not explicitly considering that issues of credibility had been raised by the respondent, and whether therefore there should be an oral hearing.

21. Thirdly, it was arguable that the Judge erred by not taking into account that the appellant had provided an apostille certifying the signature of the Registrar on the marriage certificate, and a translated declaration from his former partner of non-cohabitation. Given the potential importance of these documents, it was arguable that the Judge should have specifically explained why he was not satisfied that the appellant had made out his case, despite these documents.

The Hearing in the Upper Tribunal

22. At the hearing before us to determine whether an error of law was made out, the appellant appeared in person, assisted by a Latin-American Spanish Interpreter.

23. We raised with Ms Isherwood the case of SSGA (Disposal without considering merits: R 25) Iraq [2023] UKUT 00012 (IAC). We provided Ms Isherwood with a hard copy of this decision, and drew her attention to Headnote (4), which set out the guidance to be applied when consideration is being given as to whether or not an appeal should be disposed of without a hearing.

24. Having considered the guidance, Ms Isherwood said that, in fairness to the appellant, she had to accept that there was a material error of law in the Judge’s approach, and that the appropriate outcome was for the decision of the First-tier Tribunal to be set aside on the grounds of procedural unfairness.

25. After further discussion, she agreed that the appeal should be remitted to Taylor House, the closest hearing centre to where the appellant lives, for an oral hearing.

26. We explained the outcome to the appellant, and we stressed the importance of him providing certified English translations for the documents in Spanish upon which he wished to rely. He said that he had already arranged for them to be translated, and he had the translated copies with him.

Reasons for Finding an Error of Law

27. We consider that Ms Isherwood rightly conceded that the Judge erred in law by determining the appeal on the papers, and in the light of this we are not required to consider the other grounds of appeal identified in the grant of permission.

28. In SSGA, at Headnote (4), the Tribunal stated:

“The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing:

(i) Rule 25(1) of the FtT Rules provides that the FtT (IAC) must hold a hearing which disposes of proceedings except where rule 25(1)(a) to (g) apply. Seven exceptions to the general Rule are provided for in rule 25(1)(a) to (g).
(ii) Any decision whether to decide an appeal without a hearing is a judicial one to be made by the Judge who decides the appeal without a hearing. The mere fact that a case has been placed in a paper list does not and cannot detract the duty placed on the Judge before whom the case is listed as a paper case to consider himself or herself whether one or more of the exceptions to the general rule apply. If, having considered rule 25, the Judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the Judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing.
(iii) …
(iv) A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially an issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal.”

29. The appellant’s credibility was disputed on the two principal controversial issues in the appeal, which were (a) whether the appellant had genuinely entered into marriage with the sponsor in 2017 and (b) whether the appellant was and had been in a durable relationship with the sponsor from before 31 December 2020.

30. The Judge complied with the guidance given in Headnote (4)(ii) by considering for himself whether one of the exceptions in Rule 25 applied, and he was not wrong to find that each party had consented to, or had not objected to, the matter being decided without a hearing, and so exception (a) applied. However, the law always speaks and the Judge failed to ask himself whether nonetheless he should decline to decide the appeal without a hearing, having regard to the overarching principle set out in Headnote (4)(iv) of SSGA.

31. The Judge ought to have directed himself that, as credibility was disputed on both principal controversial issues, this was not one of those rare cases where it was appropriate to determine the appeal on the papers, especially as most of the documents relied on by the litigant in person were in Spanish, without a certified English translation, and therefore he was going to ignore them.

32. For the above reasons, the Decision is unsafe and it must be set aside in its entirety.

Future Disposal

33. As the appellant has been deprived of a fair hearing in the First-tier Tribunal, we consider that the only appropriate course is for us to remit the appeal to the First-tier Tribunal.

Notice of Decision

The decision of the First-tier Tribunal contains an error of law, and accordingly the decision is set aside in its entirety, with none of the findings of fact being preserved.

This appeal is remitted to the First-tier Tribunal at Taylor House for an oral hearing before any Judge apart from Judge Buckwell.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 May 2025