Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-000144

First-tier Tribunal No: HU/52561/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th June 2025.

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAMIR HEZOUAT
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mr P Georget, Counsel instructed by Malik & Malik Solicitors
For the Respondent: Ms L Clewley, 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 Row promulgated on 6 November 2024 (“the Decision”). By the Decision, Judge Row dismissed the appellant’s appeal against the decision of the respondent made on 22 February 2024 to refuse this application for leave to remain made on 20 December 2022.
Relevant Background
2. The appellant is a national of Algeria, whose date of birth is 17 March 1979. The appellant claims to have entered the UK on 1 August 2003 in the false identity of Madani Hezouat, a French national, with a date of birth of 24 December 1981.
3. In the reasons for refusal letter (RFRL) dated 22 February 2024, the Home Office acknowledged that on 23 June 2012 the appellant had applied for leave to remain under Articles 3 and 8 ECHR, and that this application had been rejected on 31 July 2012. He had then applied on 28 February 2013 for leave to remain under the family/private life 10-year route, and this application had been refused with no right of appeal on 17 May 2023. However, it was not accepted that he had lived continuously in the UK for at least 20 years, as he had not provided sufficient evidence of continuous residence of 20 years. The earliest payslip that he had provided was from 2010.
4. The appellant’s case on appeal was set out in an Appeal Skeleton Argument (ASA) settled by Aaqib Khan of Malik & Malik Solicitors dated 12 June 2024. Mr Khan submitted that the refusal of the appellant’s application under the 20-year Rule was disproportionate. The appellant had sufficiently demonstrated residence within the UK for a 20-year period by way of documents covering most of the years. These included payslips issued to the appellant by Norfolk Plaza Limited from October 2010 to September 2016, and P60s for the years 2010 through to 2016. The appellant would not have been able to exit and re-enter the UK. The respondent would have evidence of the appellant re-entering the UK from their own records.
5. Although not referenced in the ASA, the appeal bundle contained witness statements from two British citizens who were of Algerian heritage.
6. In a witness statement endorsed with a Statement of Truth dated 6 June 2024, Rachid Charbak said that he had been born on 1 January 1974, and he was a British citizen currently residing in London N17. He was writing in support of his friend. He had known the appellant for a very long time, since 2003, after meeting him through a mutual friend, Karim, who was also Algerian. He used to live in Gravesend from 1997 up until 2011. Since 2011 he had been living in London. The appellant was like a brother to him. He was known to his family, and his children called him Uncle. He often visited the appellant in Walthamstow and they caught up and got a coffee. Sometimes he saw him with their mutual friends. The appellant had visited his house on many occasions, including on festive days such as Eid and Ramadan.
7. In a witness statement dated 12 June 2024 and endorsed with a Statement of Truth, Fouzi Damous said that he had been born on 10 October 1980, and he was currently residing at an address in London E6. He said that he was writing in support of his good friend. He had known the appellant for a very long time, since 2005. He always considered the appellant like a brother as he had done for the past 18+ years.
8. In a Review dated 27 August 2024, the Pre-Appeals Review Unit (PARU) agreed that the three issues in the appeal were as stated in the ASA: (1) “the 20-year rule”; (2) whether there were very significant obstacles to the appellant’s integration upon return to Algeria; (3) whether the interference with private life was proportionate.
9. The first issue was whether the appellant had been continuously resident in the UK for a period of at least 20 years. The onus was on the appellant to evidence that his residency was continuous. There was no reliable evidence that the appellant had resided continuously in the UK since 2003. Para 10 of the Review stated as follows:
“The R acknowledges the witness statements and character references from A’s friends, Fouzi Damous and Rachid Charbak (AB, pages 10-11, 13-14, and 113-115), however their evidence will require testing at the hearing. The R has considered these documents under R (On the application of SS) -v- SSHD ‘Self-serving documents’ [2017] UKUT 164 and therefore applies little weight to them on this basis.”
10. The Review further detailed that the appellant had failed to provide documentary evidence that he was present in the UK at all in 2003, 2004, 2005, 2006, 2007 and 2008. As it could not be disputed that numerous migrants enter the UK illegally and undetected each year, the reverse must also be accepted.
The Decision of the First-tier Tribunal
11. The appellant’s appeal came before Judge Row sitting remotely in the Virtual Region on 5 November 2024, albeit that for the purposes of the CCD (aka “MyHMCTS”) portal, the designated hearing centre was Manchester. Both parties were legally represented, with Mr Georget of Counsel appearing on behalf of the appellant. As recorded by the Judge at para [15], he received oral evidence from the appellant and from his two supporting witnesses, Mr Charbak and Mr Damous.
12. In his discussion, the Judge addressed their evidence at paras [35]-[38] before going on to contrast it with the lack of documentary evidence for the years 2003 to 2008.
13. The appellant gave evidence that he had been in the UK continuously since 2003. His two witnesses said that they had known the appellant from 2003 and 2005 respectively, and they confirmed his presence in the UK: para [35]. The respondent said that this evidence was self-serving. It was not. All the witnesses attended, gave evidence, and were cross-examined on their evidence: para [36]. Such evidence was difficult for the respondent to contradict. However, neither the respondent nor anyone else was obliged to accept that because someone said a person had lived in the UK for 20 years that must be the case. Such evidence must be considered in the light of who provided it; what motive a person may have for providing it; how independent the witness was; and whether the evidence was consistent with other evidence: para [37]. The evidence of the appellant and his two witnesses was admissible, but it was only part of the evidence to be considered: para [38].
14. There was a stark lack of documentary evidence to confirm the appellant’s presence in the UK: para [39]. Most of the documentary evidence which had been produced only went back to 2008 and it was not in the appellant’s name. It was just as likely to relate to a real Mr Madani Hezouat rather than the appellant: para [40]. There was other documentary evidence which the appellant could have produced to demonstrate his presence in the UK: paras [43] – [46]. The Judge continued in para [47]:
“The evidence from the appellant [and] the witnesses is only one part of the evidence I must consider. I do not accept what they say. I am more persuaded by the absence of any other independent evidence that the appellant has been in the UK for the period he claims. If he could enter the United Kingdom using false documents he could leave by the same means.”
15. The Judge concluded at para [48] that the appellant had not demonstrated that he had been in the UK for a continuous period of 20 years, even at the date of the hearing.
The Grounds of Appeal to the Upper Tribunal
16. Ground 1 was that the Judge had acted unfairly and misdirected himself in law in proceeding to reject the evidence of the appellant’s two witnesses concerning his length of residence in the UK, when there had been no challenge to that evidence in cross-examination by the respondent (or by the Judge). Mr Charbak claimed to have met the appellant in Gravesend in 2003 and both he and Mr Damous said that they were very close friends who had been regularly in contact with the appellant throughout the preceding two decades. It was not put to either of the witnesses that they were lying, either generally or in relation to specific factual claims about how long they had each known the appellant had been living in the UK.
17. In the circumstances, it was submitted by the appellant in closing argument that it was not open to the Judge as a matter of fairness to reject the truth of their evidence. That submission was derived from the rule in Browne -v- Dunn [1893] 6 R 67, HL. The law on this point was well established and was it helpfully set out, following an extensive review of the authorities, by Lord Hodge in Tui UK Ltd -v- Griffiths [2023] UKSC 48 at [70].
18. Ground 2 was that the Judge had erred in law in his approach to the respondent’s refusal decision of 2013.
19. Ground 3 was that the Judge failed to make any clear finding about the appellant’s explanation for the lack of documentary evidence for the period 2003 to 2010.
The Reasons for the Eventual Grant of Permission to Appeal
20. Permission to appeal was refused by the First-tier Tribunal, but following a renewed application for permission to appeal to the Upper Tribunal, on 4 March 2025 Upper Tribunal Judge Kamara granted permission to appeal, as in her view it was arguable that there was procedural unfairness in the treatment of the witness evidence, for the reasons set out in Ground 1. Grounds 2 and 3 were also arguable.
The Hearing in the Upper Tribunal
21. At the hearing before us to determine whether an error of law was made out, we raised at the outset with Mr Georget our concern that he was performing the dual role of presenting the appellant’s error of law challenge while at the same time purporting to give evidence as how the cross-examination of the witnesses had proceeded, and how they had performed under cross-examination.
22. After a short discussion, we briefly adjourned the hearing so that Mr Georget and Ms Clewley could see whether they could reach an agreement on these matters.
23. On the resumption of the hearing, Mr Georget informed us that the parties had reached an agreed position. Ms Clewley confirmed this. She said that she had had sight of the Presenting Officer’s note of the hearing, and she thereby accepted that it was not put to the witnesses that their evidence was unreliable or not to be believed.
24. Mr Georget proceeded to develop the appellant’s case on Ground 1, and he also briefly addressed us on Grounds 2 and 3.
25. On behalf of the respondent, Ms Clewley submitted that no error of law was made out as alleged in Ground 1. Although it was not put to the witnesses that their evidence was unreliable or not to be believed, their evidence was nonetheless tested by way of cross-examination, and it was open to the Judge not to accept their evidence for the reasons which he gave.
26. After hearing from the representatives on the question of the appropriate forum for the remaking of the decision if we found that Ground 1 was made out, we reserved our decision.
Discussion and Conclusions
27. We consider that it is convenient to deal with the grounds of appeal in ascending order of merit.
Grounds 2 and 3
28. Grounds 2 and 3 are error of law challenges to the adequacy of the Judge’s reasoning, and so we bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; [2004] 1 WLR 1953. His guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…”
29. Ground 2 relates to the refusal decision that was issued to the appellant on 17 May 2023. At Mr Georget’s request, the Presenting Officer uploaded a copy of this decision during the hearing. The decision was issued to the appellant in his real name, nationality and date of birth. The decision gave reasons for refusing the appellant’s private life claim by reference to all the potentially applicable categories set out in Rule 276ADE, including the category of at least 20 years’ continuous residence. As to that, the decision stated that the appellant had entered the UK in 2003 and had not lived continuously in the UK for at least 20 years, and therefore the Secretary of State was not satisfied that he could meet the requirements of Rule 276ADE (iii).
30. As recorded in para [32] of the Decision, Mr Georget submitted at the hearing before Judge Row that this refusal letter showed that the respondent had conceded that the appellant had entered the UK in 2003 and had lived in the UK continuously since then. The Judge addressed that submission at para [33]. He did not accept that there was a concession. It appeared to him that all the decision-maker was saying was that, taking the appellant’s account at its highest, he could not meet the requirements of 20 years’ continuous residence. The Judge further noted that the refusal letter did not record what evidence was provided with the application.
31. We consider that the Judge gave adequate and sustainable reasons for holding that there was no concession inherent in the refusal decision, and that no error of law is made out.
32. Ground 3 is that the Judge failed to address the appellant’s explanation as to why he had unable to provide more documents from the earlier part of his residence in the UK. His explanation was that documentary evidence such as payslips and tax documents, as well as evidence of his treatment in hospital, had already been provided to the respondent when he applied in 2012 and 2013.
33. At paras [42] to [46] the Judge set out the documentary evidence which he considered the appellant could have produced to show his continuous residence in the UK between 2003 and 2010. Mr Georget submits that this was unfair in circumstances where, if the appellant had already produced that evidence, it had not been returned to him. He submits that what the Judge had to do was at least make a finding about the appellant’s explanation, and, if he was going to reject it, then he had to give reasons for rejecting it.
34. As the Judge noted, the 2013 refusal decision did not identify the evidence that had been provided in support of the application, and so it followed that there was no way of ascertaining whether the appellant was accurate about the types of documentary evidence that were provided in support of the 2013 application, still less whether what had been provided was probative of continuous residence.
35. We consider that the Judge reasonably focused on the types of documentary evidence which he considered that the appellant could have provided in support of the current appeal, whatever may or may not have been provided in 2013. The range of documents which the Judge held that the appellant should have been able to provide for the appeal was more extensive than the 2013 range of documents described by the appellant. The wider range included GP medical records, which the appellant admitted that he had not tried to obtain. The Judge also pointed out that records from HMRC, even if in the incorrect name, would indicate what payments of tax and national insurance were made. So, even if it was true that the appellant had provided tax documents to support the 2013 application which had since been lost, the same tax and national insurance information could be retrieved from records held by HMRC.
36. For the above reasons, no error of law is made out as alleged in Ground 3.
Ground 1
37. In Tui UK Ltd -v- Griffiths [2023] UKSC 48, Lord Hodge, giving the leading judgment with which the other Justices agreed, said at [70]:
“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:
(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.
(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.
(iii) The rationale of the rule i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.
(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.
(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.
(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.
(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.
(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”
38. The rule in Browne v Dunn applies in immigration cases, with necessary modification where the respondent is unrepresented, and so there is not the opportunity for the respondent to cross-examine the witness in question: see Abdi [2023] EWCA Civ 1455 at [33].
39. We accept that the rule should not be applied rigidly. Accordingly, we have given careful consideration as to whether it was open to the Judge not to accept the evidence of the witnesses, notwithstanding that their oral evidence had not been impugned in cross-examination by the Presenting Officer.
40. The issue to which the fairness challenge is directed was neither collateral nor insignificant. The evidence of the witnesses was central to the disputed issue of the appellant’s continuous residency for a period of 20 years.
41. It cannot be said in the alternative that their evidence of fact was manifestly incredible, such that an opportunity for them to repudiate an allegation of lying or unreliability would make no difference. On the contrary, the Review effectively acknowledged that their evidence had prima facie credibility, and for that reason it required to be tested in cross-examination.
42. Although their evidence was tested in cross-examination, it was not impugned. The Presenting Officer thus did not lay the ground for a closing submission that their evidence should be rejected on the ground that it was self-serving. The Judge rightly directed himself that this principle does not apply where the witness making the statement in question is tendered for cross-examination.
43. If the cross-examination (or questions for clarification purposes from the Judge) had revealed that there was a loss or absence of contact in the early years such that there was a significant period when neither witness could confirm the appellant’s presence in the UK, it would have been open to the Judge to find that their evidence did not confirm the appellant’s continuous presence in the UK, notwithstanding the fact that neither their honesty nor their reliability as witnesses had been impugned by the Presenting Officer. But at the outset of his discussion the Judge held that the oral evidence of the witnesses had had the effect of confirming the appellant’s continuous presence. Therefore, absent compliance with the rule in Browne v Dunn, it was not open to the Judge to reject their evidence for the reasons which he gave at para [37] or at paras [39] to [47].
44. Accordingly, the Decision is unsafe and it must be set aside in its entirety.
Future Disposal
45. We have carefully considered the venue of any rehearing, taking into account the submissions of the representatives. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), we have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement.
46. We have concluded above that the Decision of the First-tier Tribunal is to be set aside on procedural fairness grounds. In the circumstances the only appropriate course is to remit this matter to the First-tier Tribunal.
47. We acknowledge that there was no error of law challenge to the Judge’s findings in favour of the respondent on the other two principal controversial issues in the appeal. However, these findings cannot be completely divorced from the finding on long residence, and we do not consider that it would be in accordance with the overriding objective to direct that the First-tier Tribunal should treat these findings as preserved findings.
48. The appeal was heard by the First-tier Tribunal in the Virtual Region. Observing the home addresses of the appellant and his witnesses, we remit the appeal to Taylor House. Consequent to our conclusion as to procedural unfairness, we direct that it be listed as an in-person appeal hearing.
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 in-person hearing before any Judge apart from Judge Row.

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