Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000207

First-tier Tribunal No: EA/00619/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of July 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAMEER KHAN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: No Representative
For the Respondent: Mr Wain, Senior Presenting Officer

Heard at Field House on 24 March 2025

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they were designated in the First-tier Tribunal. The Secretary of State appeals against the decision of First-tier Tribunal Judge S Farmer (“the Judge”), promulgated on 21 November 2024 (“the Decision”), allowing the Appellant’s appeal against the Respondent’s decision dated 23 February 2024, refusing the Appellant’s EUSS application made on 18 November 2022.
Background
2. The Appellant had applied for leave to remain under the EUSS on the basis of having married a relevant EEA national, Ms Rumenova, also referred to as Ms Krasteva (“the Sponsor”) in the papers, in Cyprus on 24 August 2020. The Respondent refused the application on the basis that there were reasonable grounds for suspicion that the marriage was entered into for the purpose of securing leave to remain, and so was a marriage of convenience.
3. In the decision, the Respondent asserted that the Sponsor was also sponsoring another application under the EUSS for someone other than the Appellant, also on the basis of having entered into another marriage or durable partnership, in the same period as the claimed marriage to the Appellant had taken place. The Respondent said the appellant had also failed to respond to two invitations to interview, and so the Respondent was entitled to draw an adverse inference about the marriage. In that decision the Respondent did not dispute the validity or legality of the marriage of the Appellant and Sponsor.
4. The Appellant’s appeal was heard by the Judge on 18 November 2024. Contained within the Appellant’s bundle were documents said to establish cohabitation and the relationship, including a residence card for the Appellant, issued in Cyprus. There was also a birth certificate for a child, ‘AK’, said to have been born in the United Kingdom on 10 August 2023 in Slough, County of Berkshire. The Appellant and Sponsor were named on the birth certificate as the parents of AK.
5. The Respondent was represented by Ms C Skinner at the hearing, who requested the Judge admit additional evidence adduced by the Respondent on the morning of the hearing, which included a marriage certificate, relating to a second alleged marriage by the same Sponsor, which also took place in 2020, and some photographs, said to be of the Sponsor and the other spouse, to support the Respondent’s case that the Sponsor had relied on two different relationships or marriages. This evidence was admitted by the Judge.
6. The Appellant and Sponsor did not attend the hearing and no representative attended on the day. The Judge recorded in the Decision that the Appellant and Sponsor had emailed the Tribunal on the morning of the hearing, to say their child, AK, whose birth certificate appeared in the appellant’s bundle, had died in the week before the hearing, and so they could not attend the hearing. Later that day the Judge recorded that she was sent a second email from the Appellant and Sponsor, said to enclose a copy of AK’s death certificate, which said the child had died of epilepsy related seizures and consequent vomiting and aspiration, on 15 November 2024, at Wexham Park Hospital, and the death had been registered on 18 November 2024, the same day as the hearing. In the circumstances it was said they could not attend the hearing but invited the Tribunal to proceed in their absence.
7. The Judge recorded that the Respondent’s representative was invited to address her on whether the appeal should proceed in absence of the Appellant and Sponsor, and that Ms Skinner submitted that ‘in fairness to them, they ought to be able to respond to the documents she had produced that morning’, which had not been served on them in advance of the hearing. The Judge took the decision not to adjourn the appeal but instead to proceed in the absence of the Appellant and Sponsor, taking into account various issues, including the finding that it would not be in the interests of justice to adjourn given the recent and no doubt distressing death of their child. The Judge found as follows in relation to the certificate of death:
‘There was nothing to suggest that this certificate was anything other than a genuine document’
8. The Judge allowed the Appellant’s appeal, finding that the initial burden of proof on the Respondent had not been discharged. As to the marriage certificate said to relate to a different applicant under the EUSS and the same sponsor, the Judge found issues in the document led her to doubt that ‘this is a genuine document’. While the photographs showed someone who looked similar to the Sponsor, with another person, the Judge found she could not conclude with complete confidence that it was the same Sponsor. The Judge found the Respondent had failed to approach the Sponsor to ask her about this other application. The Judge also placed reliance on the evidence from the Sponsor and Appellant, said to show they had replied to the Respondent’s second invitation to interview.
9. The Judge accepted the Sponsor’s case, as it was put forward in the bundle, which was that she denied any knowledge or participation in a second marriage and EUSS application and suggested her identity had been stolen. The Judge found the Respondent’s failure to investigate the alleged identity theft or to provide this evidence about the other marriage any earlier than the morning of the hearing, led her to place little weight on the evidence relied on by the Respondent, but instead to place weight on the evidence and explanation submitted by the Appellant, which, on the evidence available on the day of the hearing, was considered to be reliable and capable of attracting weight. That evidence included the certificates showing the birth and death of the Appellant and Sponsor’s child, which was found to form part of a wealth of reliable evidence, establishing that the relationship was not one of convenience, and which undermined or addressed the Respondent’s evidence. The appeal was therefore allowed.
10. The Respondent then applied for permission to appeal on the following grounds:
Ground 1
“Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome of the fairness of the proceedings.”
11. The Respondent said that this arose in part due to a failure to adjourn the appeal, but also, due to the Respondent’s representative not having been provided with a copy of the death certificate at the hearing. The Respondent said an application to the Tribunal had to be made for a copy of the document after the hearing. The Respondent was therefore unable to check the reliability of the document before the hearing, or comment on its contents at the hearing itself, both in relation to adjournment, but also the substantive issues in the appeal. It was said the document was found to be persuasive by the Judge and had a material impact on the outcome of the appeal, which therefore led to procedural unfairness.
Ground 2
“Making a mistake as to a material fact which could be established by objective and uncontentious evidence .. where unfairness resulted from the fact that a mistake was made.”
12. The Respondent’s case was that checks had been conducted with the General Registry Office immediately after the hearing, and the Registry Office had confirmed that both the purported birth certificate and the death certificate of AK were forgeries. Therefore, a mistake as to a material fact had been made by the Judge, both in relation to the existence of a child of the marriage, but also the child’s death, which were facts taken into account in the assessment of the evidence by the Judge. These were material to the finding that the evidence was reliable and established a marriage that was not one of convenience. Further, the Respondent asserted that evidence of dishonesty supported the assertion that the marriage was one of convenience.
13. The grounds asserted that document verification reports and other evidence were attached to the application for permission to appeal, although they do not appear in the bundle prepared by the Respondent in advance of the hearing.
14. Permission to appeal was granted by Judge Saffer of the First-tier Tribunal on 30 December 2024, on both grounds.
The Hearing
15. The Respondent filed a bundle (1-225pdf) which included the bundles of the parties and relevant decisions and application for and grant of permission, but did not include the marriage certificate and photographs given to the Judge on the day of the hearing in the First-tier Tribunal, the birth and death certificates, or any document verification reports or supporting correspondence with the General Registry Office.
16. A second bundle (1-15pdf), prepared by Mr Wain, containing the document verification reports, the two certificates and correspondence with the General Registry Office, was submitted on Friday 21 March 2025, which was the working day before the hearing, with an application under Rule 15 (2A) to admit the evidence.
17. There was no attendance at the hearing before us by the Appellant or Sponsor or any representative on their behalf. We are satisfied that notice of hearing was sent to the parties on 25 February 2025. There was no application for an adjournment and in the circumstances, having regard to Rule 38 of the Procedure Rules, we considered it was just and fair to proceed in the Appellant’s absence. This was because the issues were narrow, and at this stage of the proceedings, no final decision would be made on whether the allegations of the Respondent were established, or on what impact this would have on the substantive issues in the appeal. Mr Wain also submitted that the Appellant and Sponsor had not responded to the grounds submitted by the Respondent, and were aware of the hearing and the potential impact of the Respondent’s allegations, but had chosen not to attend.
18. At the hearing, Mr Wain apologised for the delay in the evidence being provided to the Tribunal. He acknowledged that the marriage certificate and photographs served at the hearing before the Judge, and the new fifteen page bundle containing evidence relating to the birth and death certificates, may not have been directly served on the Appellant at any time. Despite that, he submitted that the evidence was capable of establishing an error in the Decision, in the Judge’s reliance on mistake as to a material fact. That that there was a mistake as to fact, which was that there was nothing to suggest the certificates were anything other than genuine documents, was capable of being established on the evidence now available. The error was material, because it was material to the positive credibility findings. Those findings related to whether the Appellant’s evidence was reliable and credible, on matters such as the relationship, which was supported by the fact that there was a child of the marriage, as well as the reason for the Appellant and Sponsor’s failure to attend the hearing. These were material to the overall assessment of credibility and went to the core issue in the appeal. He submitted that we should find an error of law and also procedural irregularity, and that given how central the mistake was to fact was to the outcome of the appeal, the Decision should be set aside in its entirety and re-made today, and the Appellant’s appeal should be dismissed.
19. We indicated that we were persuaded that in relation to the second ground of appeal, that there was an error, in relation to a mistake as to a material fact, and that having made that finding, there was no need to consider the first ground. We directed the Decision be set aside in its entirety with no findings preserved. Having done so, we considered whether to deal with the substantive issues in the appeal or whether to list the appeal for another hearing, but decided it should be heard afresh, by another judge in the First-tier Tribunal. We also indicated that we would provide more detailed reasons for our conclusion in writing, which we now turn to do.
Findings and Conclusion
20. We decided to admit the evidence relied on by the Respondent, although it should have been included in the Respondent’s bundle and served upon the Appellant. We appreciate copies may have been attached to the original application for permission to appeal, but Mr Wain could not be sure of that and the documents were not in the papers available to us before the hearing. In deciding to admit that evidence, and proceed in the absence of the Appellant, we found it was in the interests of justice to do so, as he had been served with notice of the hearing and would have been aware of the allegations made by the Respondent. No substantive findings would be made on the evidence by us, until he had an opportunity to comment upon it and what impact the Respondent’s new evidence should have on the substantive issues in the appeal. The appeal could therefore be justly and fairly dealt with in his absence.
21. We acknowledge that the birth certificate submitted in the Appellant’s bundle, was available to the Respondent some months before the hearing, but the death certificate was not made available to the Respondent until after the hearing before the Judge. The test in Ladd v Marshall [1954] 1WLR 1489 is therefore satisfied, in that at least part of that evidence relied on by the Respondent could not, with due diligence, have been produced for trial any earlier than after the hearing at the First-tier Tribunal. It may also be that concerns about whether both documents were genuine did not arise until the second certificate was relied on at the hearing.
22. We also find that the evidence, which comprises copies of the certificates, document verification reports, as well as emails from the General Registry Office to say there are irregularities in both certificates and there are no Registrars by the names on the birth and death certificates, are sufficient to establish that there are legitimate concerns about whether those documents are genuine and capable of reliance. The Judge was not made aware of those concerns, as the evidence which supports them only came into existence after the hearing. On the face of the evidence before her, there appeared to be no reason to doubt that the documents were genuine and so reliance was placed upon them. Subsequent evidence has since come to light, which establishes the factual basis for that finding was mistaken. As was considered in E and R [2004] EWCA Civ 49, where evidence emerges after a hearing, that is potentially capable of attracting weight, that may establish the Judge relied on a mistake as to fact, which can in turn constitute an error of law.
23. We further find that the error was material, as the fact of a child being born of a marriage was evidence taken in the round with the other documentary and other evidence, as being supportive of the marriage not being one of convenience. The death certificate was also relied upon as being relevant to why the Appellant and Sponsor had not attended the hearing. These documents were found to support the overall assessment of the Appellant’s evidence being credible and reliable, which informed the Judge’s assessment of whether the Sponsor’s explanation of why she and the Appellant did not attend the interview was credible, as well as the decision not to place weight on the Respondent’s evidence about a second marriage. If indeed the documents are forgeries, they may form evidence of dishonesty, which will go to the heart of any credibility assessment.
24. We therefore find that the Judge was led into error, albeit inadvertently. We find that error was material and infects the credibility assessment made by the Judge, which was central to the findings of fact made and the outcome of the appeal. We therefore do not preserve any findings made in the Decision but set it aside in its entirety.
25. We do also record our concern that the marriage certificate and photograph evidence relied on by the Respondent, in the original refusal of the EUSS application, dated as long ago as 18 November 2022, was only provided to the Judge on the day of hearing in November 2024, and apparently still has not been formally served on the Appellant by the date of the hearing before us. That evidence also does not appear in the bundles provided to us and so we cannot consider it or make any findings about it. That failure was further compounded by the fact that the Respondent has not served the bundle of evidence relating to the document verification checks on the Appellant, even by the date of hearing before us some months later, and that this evidence was only provided to us on the working day before the hearing.
26. It is to be hoped that the Respondent will now immediately serve any evidence relied upon, on the Appellant and Sponsor, without any more delay. In those circumstances it would have not been fair to proceed to hear and re-make the decision on this appeal, in the absence of the Appellant, as proposed by Mr Wain. We have considered whether to retain the case in the Upper Tribunal, as well as the guidance in the Practice Direction and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). The Respondent pleaded in the grounds that the Respondent was potentially deprived of a fair hearing at which evidence of assertions of false documents could be put to the Appellant and on which submissions could be made to a judge. We also take account of the Respondent’s acceptance that the evidence relied on has still not been served on the Appellant. We also note that there are new developments which post-date the original decision under appeal. It is unclear to us whether the Respondent intends to serve a supplementary decision letter or review addressing the new evidence and what impact it should have on the issues in the appeal and whether the First-tier Tribunal is required to determine additional issues to those raised in the original decision. We therefore find it appropriate for this case to go before another judge of the First-tier Tribunal, other than Judge Farmer, for a de novo hearing so that all issues can be considered afresh.
Notice of Decision
27. For the reasons given above we find that the Decision contains an error of law and is set aside in its entirety, with no findings preserved.
28. The matter is now remitted to the First-tier Tribunal for a fresh hearing, before another judge than Judge Farmer.
29. Given that new evidence has now emerged, that was not relied on in the original decision, it may be that the First-tier Tribunal will determine further case management will be required to progress this appeal to a hearing, but that will be for the First-tier Tribunal to determine.

Judge H Graves

Judge of the Upper Tribunal
Immigration and Asylum Chamber