Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000347

First-tier Tribunal No: EA/03286/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th June 2025

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between

MR IGLI SHEHI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Ms Lecointe (Senior Presenting Officer)

Heard at Field House on 30 May 2025

DECISION AND REASONS
1. This is an appeal by the appellant against the decision of Judge Dyer made on 29 November 2024, refusing his appeal on the grounds his marriage was one of convenience. That decision was made without an oral hearing. Permission to appeal was refused by Judge Saffer, but allowed on renewal by Upper Tribunal Judge Owens.
The hearing
Preliminary matters
2. The appellant did not attend. We were satisfied that the appellant had properly been served a notice of hearing. There was no request for an adjournment, nor any explanation for his non-attendance. Our clerk attempted to contact the appellant using email and telephone contact details found in the Tribunal records, but to no avail.
3. Considering procedure rules 2 and 38, we were satisfied that it was in the interests of justice to hear the appeal in the absence of the appellant.
4. Ms Lecointe did not have the same bundle as we did. The appeal bundle had been created by the Tribunal as the appellant is a litigant in person. Due to the size of the electronic bundle and the limitations of the Home Office email system this bundle had been sent in the post to the correct address on 20 May 2025.
5. Ms Lecointe had access to the relevant documents and where she did not we were in a position to explain the documents that were on the Tribunal file. We were satisfied that the circumstances ensured a fair hearing.
Documents and submissions
6. We had before us the 492 page bundle that consisted of the rule 24 response, grounds, decisions on permission, and the evidence that was before the First-tier Tribunal. Page references will be to this bundle unless otherwise stated.
7. We heard submissions from Ms Lecointe in relation to the grounds of appeal and our questions about the original decision making procedure.
8. At the conclusion of those submissions we indicated that we were satisfied that the Judge had made material errors of law and that the decision would need to be set aside.
9. We indicated that our reasons were reserved, we now give them in writing.
Errors of Law
10. Although they are unnumbered we find the grounds of appeal for which permission was granted identify two distinct grounds.
Ground 1
11. This we find relates to the burden of proof to be applied by the Judge.
12. It is uncontroversial the initial decision (page 221) refused the application solely on the basis the marriage between the appellant and his spouse was a one of convenience. Ms Lecointe correctly conceded that the burden was on the respondent to satisfy the Judge this was the case.
13. The evidence relied upon by the respondent before the Judge related to the failure of the appellant to attend two marriage interviews. There is no dispute that the appellant did not attend a marriage interview.
14. However, Ms Lecointe conceded in her submission that the evidence before the Judge on the face of it demonstrated that the original decision making process was unfair. That was because there was a letter dated 15 August 2023 (page 246) referring the case for a decision before the date of the interview in circumstances where the appellant had indicated that he was willing and able to attend the interview (page 271).
15. We accept that the Judge correctly identified in §9 of their decision that the burden lay on the respondent.
16. However, we find that the approach the Judge took in the determination demonstrates that this was not followed.
17. In particular §13, where the Judge indicated an expectation for the appellant to make contact following the failure to attend the interview, §16, where there is an expectation on the appellant to provide evidence why the interview was not attended and §18, where the judge remarks the appellant’s evidence was weak, in our view show that the Judge was expecting the appellant to show the marriage was not one of convenience, rather than placing the burden on the respondent.
18. We find that this approach was taken despite clear evidence there were procedural irregularities in the respondent’s decision making process.
19. Ms Lecointe in her submissions conceded that by taking this approach the Judge appeared to reverse the burden, and that was an error of law. Ms Lecointe also conceded that the error was material.
Ground 2
20. In this ground, we find the appellant seeks to argue that the Judge failed to follow the principles established in Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC).
21. The appellant relies on §30 of that decision:
…as a matter of ordinary parlance and the past experience of the UK’s Immigration Rules and case law, a marriage of convenience in this context is a marriage contracted for the sole or decisive purpose of gaining admission to the host state. A durable marriage with children and co-habitation is quite inconsistent with such a definition.
22. Although Papajorgi is a reported case it was not reported for the principle on which the appellant relies.
23. However, we find that when assessing if a marriage is one of convenience, it is the purpose of the marriage that is the key question and that the birth of child is a fact that may point to a marriage that is not a means to circumvent requirements for leave to remain in the UK.
24. We find that in their analysis of the birth certificate in §16 the Judge was a looking at the relationship as of the date of the hearing, rather than looking back to the purpose for which the marriage was entered into. We are satisfied that was a material error of law.
Conclusion on errors of law
25. We find for the reasons set out above that the decision of Judge Dyer contained material errors of law that mean the decision must be set aside.
26. We further find that no findings by Judge Dyer should be preserved.

Remaking or Remittal
27. Ms Lecointe, submitted that this is a case that was suitable for remittal to the First-tier Tribunal rather than a remaking in the Upper Tribunal.
28. We have considered what was said by this Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and the terms of the Practice Direction and Practice Statement. We have concluded that, as no findings are preserved and this is a case that will require significant findings of fact, it is appropriate for the case to be remitted to the Frist-tier Tribunal.
29. In his initial grounds of appeal before the First-tier Tribunal, the appellant requested the appeal be determined on the papers (page 469).
30. It is, of course, a matter for the First-tier Tribunal whether the remitted hearing is considered only on the papers, or if an oral hearing should be directed. However, we note that this is a case where the credibility of what the appellant says about the purpose of the marriage is in issue and it may be in those circumstances appropriate to hold an oral hearing to dispose of the appeal.

Notice of Decision
31. The decision of Judge Dyer, dated 29 December 2024, contains material errors of law and is set aside with no preserved findings.
32. The appeal is remitted to the First-tier Tribunal.
Directions
33. We direct that the remitted case is to be listed in the First-tier Tribunal, Taylor House hearing centre, before a Judge other than Judge Dyer.
34. Further directions will be issued by the First-tier Tribunal.

N Webb

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
04 June 2025