Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005952

First-tier Tribunal Nos: HU/58624/2023
LH/04790/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Mr Adama Sylla
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr R Soloman, Counsel; Elthorne Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 6 March 2025

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge Richard Wood, promulgated on 27th September 2024, dismissing his appeal under the Immigration Rules and Article 8 ECHR. The Appellant applied for permission to appeal, which was granted by First-tier Tribunal Judge Saffer in the following terms:
“It is arguable that the Judge may have materially erred regarding the standard of proof as it is unclear what ‘possible to be certain’ means regarding the passport stamp (see [21]) and whether that equates to ‘likely’. All grounds may be argued although this appears to me to be the strongest.”
2. The Secretary of State did not provide a Rule 24 response but indicated that the appeal was resisted.
Findings
3. At the close of the hearing, I reserved my decision, which I shall now give. I find that there are material errors of law in the decision such that it should be set aside. My reasons for so finding are as follows.
4. It was common ground amongst the parties, and accepted by Ms McKenzie, that if I was persuaded by Ground 1 then I would not need to go on and address the remaining grounds given that Ground 1, pertaining to the assessment under the Immigration Rules, would infect the entirety of the decision, including the judge’s assessment outside the Rules, bearing in mind the public interest would not have been therefore correctly weighed before turning to the Article 8 proportionality assessment.
5. Turning to Ground 1, the crux of the challenge arises from and begins with, the judge’s assessment of a passport stamp that the Appellant had provided in his bundle (CB/226). At paragraph 21 of the judge’s decision, the decision reads as follows:
“The primary piece of evidence in this regard was a stamp in his earlier passport, which appears in the bundle at [465]. It is Ms Hanum’s case that this shows an entry stamp for a French speaking country dated 2 February 2002. The stamp is faint, but it is possible to be certain that the date is for either 2002, 2007, 2008 or 2009. Any of those years provides problems for the appellant, who has asserted all along that he remained in the UK from 2001 onwards”.
6. I note from the above that the last sentence is unclearly worded, however the parties both asserted that what the judge was trying to say was that the passport stamp was certainly going to correspond to one of four years: either 2002 or 2007 or 2008 or 2009. The difficulty with this finding, Mr Soloman says, is that it indicates the judge required certainty as to the date of the stamp which is in conflict with the civil standard of proof that the judge had correctly identified at paragraph 12 of the decision. The assessment of this piece of evidence cannot be understated because, on the Appellant’s case, and indeed on the Secretary of State’s records, he entered the UK in 2001, whereas there is no evidence whatsoever of exit from, or re-entry to the UK, other than this passport stamp, which I observe the Appellant voluntarily produced in his bundle. Examining the stamp for myself, I understand the judge’s predicament in deciphering it. The stamp is entirely unclear and the only thing anyone can be sure of (which the parties agreed with, when I expressed my own view) is that the stamp, so far as legible reads, “20 February 200…”. Thus, we know the day and month upon which the stamp was placed within the passport, but the year is, as far as I can see, completely illegible. I note that the passport itself, according to the biometric page (CB/225) was issued as valid from 18th June 2001 to 17th June 2004 and was then renewed in London and was valid from 26th April 2005 to 25th April 2008.
7. In my view, the judge erred in the assessment of the passport stamp as he failed to apply the civil standard. Albeit the judge notes the Appellant’s answer to where he was in 2002 as this was the year which the Secretary of State believed the stamp to read (not 2007 or 2008 or 2009, as the judge posits), the judge’s finding that the Appellant should have been aware if he had left the country or not ignores the judge’s earlier finding that the Appellant denied he had left the UK at all since arriving in 2001 which was said in the same breath and in answer to his whereabouts in 2002. As such, the Appellant had effectively denied leaving the country since his entry in 2002 and the judge’s criticism is perverse. I also find that, in concluding that the passport stamp went against the Appellant, the judge failed to place any weight upon, or give reasons for rejecting, the Appellant’s account that his passport was kept by his aunt and that he had no knowledge of its contents. Indeed, the original passport is lost and the Appellant only has copies of the passport that he was able to produce as the relationship with his aunt was one of a trafficked person as he had been given away as a domestic worker to his aunt and was taken to Algeria from 1997 to 2001 and then to the United Kingdom on a visit visa with his aunt from 2001, after which she kept hold of his passport and he was forced to work as a domestic servant by compulsion until she left the country in 2006. As such, the circumstances of the Appellant’s passport being kept his being trafficked and a victim of modern slavery have been overlooked in assessing whether or not, on balance he did in fact leave the UK after 2001 given that there are no exit nor re-entry stamps nor other contraindicative evidence put forward by the Secretary of State that suggest he left and re-entered in any identity and in any capacity since his arrival in 2001.
8. I also find the judge has erred in finding at paragraph 23 that there is no documentary evidence of the Appellant’s residence in the UK prior to 2006, as, for example, the judge has omitted to consider the fact that the passport was renewed in London on 26th April 2005, at which point, whether or not the passport stamps shows an entry to a French country on some other unknown date, it demonstrates he was arguably present in London upon the date that his passport was renewed.
9. The finding at paragraph 23 is also in conflict with the judge’s earlier finding that there were letters from the Appellant’s friends which provided in 2014 (at which point there was no suggestion of a long residence claim) which stated that they had known the Appellant for over a decade in the United Kingdom and given that the judge stated expressly that he placed some weight on the contents of those letters at paragraph 18, alongside the judge’s earlier finding at paragraph 18 that the Appellant had been in the United Kingdom “since at least 2006 and perhaps longer”, these findings, without explanation, do not sit well with the judge’s later finding at paragraph 23 that there was no evidence of this at all. Therefore, this represents a material misapprehension of the evidence before the judge. Indeed, the finding at paragraph 23 is in further conflict with the judge’s finding at paragraph 34 that the Appellant “has remained in the UK, on and off, since 2001 …”.
10. As such, the Decision, contains multiple inconsistent findings which do not lead to a reasoned conclusion. Given the above inconsistent findings, and given the lack of evidence of departure from the United Kingdom and re-entry, vis-á-vis a passport stamp, or evidence of clandestine entry at the border, or in some other identity (by way of example as to the variety of evidence the Secretary can, and has produced in the past), and given the Secretary of State’s acceptance that the appellant arrived in the United Kingdom in 2001, I find that the judge’s assessment of the passport stamp and the inconsistent conclusions reached demonstrates an inadequacy and insufficiency of reasons.
11. Albeit I have found a material error of law in respect of the assessment of the passport stamps and the inconsistent findings made by the judge, I must also note a further matter which requires obiter observation, namely, the judge’s findings at paragraphs 23 and 34 in relation to the impropriety of the Appellant using a false identity/document in order to work in the UK, seemingly raised of the judge’s own motion. As noted at paragraph 1 of the decision, in February 2009, the Appellant was encountered by the Home Office via a referral from the DWP for presenting his Ivory Coast passport with a forged ILR stamp. To my mind, the criticism of the Appellant for using a stamp to be able to work is synonymous with the situation the Court of Appeal dealt with in the case of Aissaoui v. Secretary of State for the Home Department [2008] EWCA Civ 37, at [31] to [33], wherein Lord Justice Hooper accepted that whilst working illegally was a crime, it was not a serious crime and to rely too heavily upon such a factor would automatically exclude many from benefitting from the long-residence Rule, who it was intended to assist. I also note that the index Reasons for Refusal letter, which was the subject of this appeal, did not carry any challenge to the Appellant’s character, for example, under the suitability requirements by virtue of his illegal work or the use of a fake ILR stamp, which the Secretary of State would have been entitled to raise (subject to the above dicta), had it been a matter she considered she should exercise discretion to hold against the Appellant in respect of his actions in 2009. However, that did not occur and the Refusal carried no mention of criminality or being unsuitable for a grant of status nor that these matters should count against the Appellant in the public interest considerations. Therefore, this does seem to be a matter which was raised out of course, and appears to be inconsistent with binding authority from the Court of Appeal. In any event, given that I have already found material errors of law on the preceding grounds, I need say no more.
12. In the light of the above findings, I find that the decision contains material errors of law such that it should be set aside in its entirety.
Notice of Decision
13. The appeal to the Upper Tribunal is allowed.
14. The appeal is to be remitted to be heard by any judge of the First-tier Tribunal other than Judge Richard Wood.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2025