Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000069

First-tier Tribunal No: HU/62678/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE J K SWANEY

Between

REGINA APPEIDU SARPONG
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Sowerby, counsel, instructed by Paul John & Co Solicitors
For the Respondent: Mr M Parvar, senior presenting officer
Heard at Field House on 10 March 2025
DECISION AND REASONS
1. The appellant appeals against the decision of First-tier Tribunal Judge Juss (the Judge), dated 15 November 2024 dismissing her appeal against the refusal of her human rights claim.
Background
2. The appellant is a national of Ghana. She claims to have entered the United Kingdom on 12 March 1986 with leave to enter valid for one month. Thereafter she appears to have overstayed, not coming to the attention of the authorities until she applied unsuccessfully for a fee waiver in 2019. On 4 November 2021 she made an application for leave to remain pursuant to paragraph 276ADE of the Immigration Rules. The basis of her application was that she was entitled to indefinite leave to remain, having lived in the United Kingdom continuously for more than 20 years. The application was refused on 7 October 2022.
3. The appellant made a further application for leave to remain on the same basis on 3 April 2023. It appears that the respondent contacted the appellant on 24 May 2023 to request evidence to demonstrate her continuous residence in the United Kingdom, but refused the application the following day on the basis that the evidence had not been received and her continuous residence was not accepted. The appellant appealed that decision.
4. The appellant’s appeal was heard on 13 November 2024 and the Judge dismissed the appeal in a decision promulgation on 15 November 2024.
5. The Judge excluded the witness statements of two witnesses, the first because it had not been provided in accordance with the practice direction and the second because the witness was in Ghana. The Judge admitted the witness statement of a third witness.
6. In dismissing the appeal, the Judge accepted that the appellant arrived in the United Kingdom on 12 March 1986 as claimed. He rejected the evidence of the witness, whom the appellant claimed to have known since 2000 and found that it was ‘not inconceivable that the appellant would not have left the United Kingdom in order to break the duration of her time here’.
7. The appellant sought permission to appeal on the following grounds:
(i) In rejecting the witness’ evidence, the Judge failed to make findings as to whether the witness was credible.
(ii) The Judge adopts too high a standard of proof, in effect requiring the appellant to demonstrate that it was not possible that she had not broken her period of continuous residence.
8. Permission to appeal was granted by First-tier Tribunal Judge Roots on 6 January 2025. Permission was granted on all grounds.
The hearing
9. I heard oral submissions from both representatives and reserved my decision.
10. Mr Sowerby submitted that the Judge failed to make any findings as to whether the appellant’s witness, with whom she claimed to have lived for more than 20 years, was a credible witness. He contended that had the judge accepted the witness’ evidence, it would have been open to him to have allowed the appeal, meaning that the error was a material one.
11. In addition, he submitted that the Judge failed to identify the burden and standard of proof he applied when deciding the appeal. He pointed out that the Judge does not make any reference to the burden or standard of proof anywhere in his decision. He submitted that this was a material error of law because the Judge had arguably applied too high a standard.
12. Mr Sowerby submitted that in the event I were to find a material error of law, remittal to the First-tier Tribunal would be the appropriate course of action.
13. Mr Parvar submitted that the grounds of appeal were nothing more than a hypercritical critique of the Juge’s findings and that, contrary to what was asserted on behalf of the appellant, it could not be clearer that the Judge made an adverse credibility finding about the witness.
14. He submitted that given the lack of evidence it was not clear what more the appellant could expect in terms of reasons for the finding. Mr Parvar noted that the Judge explained that the lack of photographs of the appellant and the witness/the witness’ family was a key factor in his rejection of the evidence. He also noted that the appellant did not challenge that finding.
15. Mr Parvar relied on the judgment of the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 201 for its summary of the principles relating to errors of law. In particular he relied on the first two principles:
(i) The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently.
(ii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account.
16. In respect of the second ground of appeal, Mr Parvar submitted that the Judge is a specialist Judge and it should be assumed that he was aware of and applied the correct burden and standard of proof. He submitted that the findings at paragraph 25 were essentially a finding by the Judge that the appellant’s claim not to have left the United Kingdom since her arrival in March 1986 was implausible. He agrees that this was his interpretation of the Judge’s finding and that the Judge did not use the word implausible. He submitted that it was a reasonable finding for the Judge to have made in the light of the almost complete absence of documentary evidence relied on by the appellant.
17. When I asked whether the point was put to the appellant, i.e. that it was implausible that she had not left the United Kingdom since March 1986, Mr Parvar submitted that it should be assumed that it had, as the grounds of appeal did not contain any assertion of procedural unfairness.
18. Mr Parvar submitted that I should find that there was no material error of law. He agreed with Mr Sowerby that in the event I did find a material error of law, remittal to the First-tier Tribunal would be the most appropriate disposal of the appeal.
Discussion
19. The issue in the appeal before the First-tier Tribunal was whether the appellant had shown that as at the date of application, she had resided in the United Kingdom continuously for at least 20 years. It was not disputed by the respondent that the appellant had arrived in the United Kingdom on 12 March 1986 and the Judge accepts that this is the case. He refers to the appellant’s date of arrival being ‘the only evidence that the appellant has’. The evidence of the witness was therefore of material importance to whether the appellant could make out her case.
20. The Judge’s sole reason for not accepting the evidence of the witness is a lack of photographs. Although the appellant and the witness both apparently stated that photographs exist, none were adduced in evidence. The appellant stated that her things were all over the place because they had moved around a lot and the witness stated that they were on her phone, but that she was never asked to provide them. The Judge gives no reasons for why he considered photographs were crucial to the credibility of the witness’ evidence and unless they were supported by clear evidence of when and where they were taken, it is hard to appreciate what probative value they may have had.
21. The Judge makes no clear finding about the apparent conflict of fact between the appellant and the witness about when they met. If he accepts the evidence of either the appellant or the witness, he does not explain which evidence he accepts or why.
22. Paragraph 20 contains no finding as to whether the Judge accepts that the appellant and the witness have lived together at all. And if he does accept that they have lived together, there is no finding as to the length of the period the appellant has resided with her or the reasons for any finding made.
23. I find that the Judge failed to give any/adequate reasons for rejecting the evidence of the witness. The Judge’s failure to give adequate reasons for rejecting the witness’ evidence is a material error of law. The evidence of the witness is clearly material, because if accepted, it would corroborate the appellant’s evidence that she has lived in the United Kingdom continuously for more than 20 years.
24. It is not strictly necessary in light of that finding to go on and consider the second ground of appeal. It is argued that the Judge failed to apply the correct burden and standard of proof. The Judge does not refer to the burden or the standard of proof. In a human rights claim, it is for the appellant to establish on the balance of probabilities that they meet the provisions of the Immigration Rules. I do not consider that the Judge’s use of the phrases ‘highly unlikely’ and ‘not inconceivable’ in paragraph 25 of the decision indicate that the Judge has failed to appreciate the correct standard of proof; however, they were an unfortunate choice of language. I agree with Mr Parvar’s submission that these are essentially findings that aspects of the appellant’s evidence were implausible. I find that there was no failure by the Judge to apply the correct burden and standard of proof.
Conclusion
25. For the reasons set out above, I find that the Judge failed to make proper findings about the credibility of the witness and in doing so, failed to give adequate reasons for rejecting the witness’ evidence. This is a material error of law because the witness’ evidence, if accepted, was capable of demonstrating that the appellant satisfied the relevant provisions of the Immigration Rules.
26. Having had regard to paragraph 7.2 of the Practice Directions and what was said by the Court of Appeal in AEB v SSHD [2022], Civ 1512, I find that the appeal should be remitted to the First-tier Tribunal for a fresh hearing. This is because given my findings, I cannot simply remake the decision without submissions and further evidence. I considered that the nature of the fact finding required means that it is appropriate to remit the appeal.
27. I considered whether any of the Judge’s findings ought to be preserved, and find that they should not. In particular, I have concerns about the findings at paragraph 25 of the Judge’s decision. Although it was not argued that the Judge failed to give adequate reasons for these findings in the grounds of appeal, I find that he did not.
28. The appellant’s consistent evidence is that she has resided in the United Kingdom continuously since her arrival on 12 March 1986. The Judge essentially gives two reasons for this stating at paragraph 25:
All one has in this appeal is the fact that the Appellant entered the UK almost 40-years ago. However, in that entire period of time, it is not inconceivable that she would not have left this country in order to break the duration of her time here. It is highly unlikely that the appellant would not have needed the services of a medical doctor from the time of 1986 until 2021. If she did have a medical practitioner with whom she had registered, by the name of a Mr Verma, it is difficult to understand why that arrangement was terminated once it had come into effect.
29. The Judge does not refer to any evidence he has relied on in stating that the appellant had not required medical treatment. There was no documentary evidence that the appellant had been registered with a GP before 2021, but that is not the same thing as not requiring medical treatment. It is recorded in the decision that in her oral evidence she stated that she had registered with a GP after her arrival, but that because she had not been using the surgery, she had been taken off their books. There was no evidence as to the reasons for this, but I take judicial notice of the fact that a GP can deregister a patient in certain circumstances. There is no evidence that the appellant was asked in cross-examination about whether she had accessed medical treatment during her stay in the United Kingdom such that would form a basis for the Judge’s finding.
30. The Judge’s finding that it is not inconceivable that the appellant would not have left the United Kingdom is unclear. ‘It is not inconceivable’ arguably means that it is conceivable, i.e. it is conceivable that she would not have left the United Kingdom. If that is the Judge’s intended meaning, then it is consistent with the appellant’s evidence. What I understand the Judge to mean however, is that it is not inconceivable that the appellant would have left the United Kingdom, breaking her residence. The Judge does not refer to any evidence which would tend to demonstrate that the appellant has in fact left the United Kingdom at any point during her residence. The appellant relied on the respondent’s response to a subject access request and the records provided do not disclose any entries into the United Kingdom by her since her initial arrival on 12 March 1986. I take judicial notice that as a citizen of Ghana, the appellant requires a visa to enter the United Kingdom and the Judge does not have regard to how she could have left and re-entered the United Kingdom without coming to the respondent’s attention in making his finding.
31. For these reasons I find that none of the Judge’s findings should be preserved.
Notice of Decision
32. The decision of the First-tier Tribunal involves the making of an error of law and that decision is set aside in its entirety.
33. The appeal is remitted to the First-tier Tribunal at the Taylor House hearing centre for a de novo hearing before any judge other than Judge Juss.
J K Swaney
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 March 2025