Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000643
UI-2025-000644
First-tier Tribunal No: HU/60414/2023
LH/03601/2024
HU/51830/2024
LH/03603/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th June 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE GIBBS

Between

MRS SAMREENA
MASTER HAIDER ALI
Appellants
and

ENTRY CLEARANCE OFFICER – SHEFFIELD
Respondent

Representation:
For the Appellant: Mr. Malik KC, instructed by Privilege Solicitors Ltd.
For the Respondent: Ms. Leconte, Senior Presenting Officer

Heard at Field House on 12 May 2025

DECISION AND REASONS
Introduction
1. Although it is the Entry Clearance Officer who brings this appeal for the sake of clarity in this decision we shall continue to refer to the parties as they were before the First-Tier Tribunal where Mrs. Samreena and Master Ali were the appellants and the Entry Clearance Officer the respondent.
Background
2. The respondent appeals a decision of the First-tier Tribunal. By the decision sent to the parties on 21 November 2024 the First-tier Tribunal Judge (“the Judge”) allowed the appellants’ human rights appeal.
3. The appellants had applied for entry clearance to the United Kingdom (U.K.) to join their sponsor Baber Ali; the first appellant as his wife and the second appellant as her son.
4. It was agreed that the only issue before the Judge was whether the sponsor is a British Citizen as the appellants met the remaining criteria in the Immigration Rules for being allowed entry clearance as family members of the sponsor.
5. In reaching their decision the Judge, relying on Devaseelan (Second Appeals – ECHR- Extra-Territorial Effect) Sri Lanka* [2002] UKAIT 702, found that there was no good reason to depart from a First-tier Tribunal Judge’s decision promulgated on 3 December 2020 in which the sponsor’s human rights appeal was allowed, with findings made by the Judge that the sponsor was a British Citizen.
6. Although the respondent had produced a witness statement from a Counter Fraud Officer in Her Majesty’s Passport Office (HMPO) dated June 2024 in which it was stated that the sponsor’s British passport was not genuine the judge declined to place weight on this statement. This was in part because the Judge found that HMPO had used the wrong spelling of the sponsor’s name in conducting their checks.
The Grounds of Appeal
7. The grounds of appeal are as follows:
i) The Judge made perverse or irrational findings on matters material to the outcome. Specifically, that the Judge failed to correctly consider the evidence from HMPO that they had been unable to find a British Passport in respect of the sponsor.
8. Another First-tier Tribunal Judge granted application for permission to appeal in a decision dated 4 February 2025.
9. Mr. Malik KC provided a helpful Rule 24 response on behalf of the appellants. He argues that the Judge properly directed themselves in accordance with the Devaseelan principles and that the evidence adduced before them could have been adduced before the First-tier Tribunal Judge who has allowed the sponsor’s human rights appeal in 2020. No sensible explanation for the failure to adduce this evidence has been provided, and this is fatal to the respondent’s case.
The Error of Law Hearing
10. Mr. Malik KC drew our attention to Tomlinson v SSHD [2025] EWCA Civ 25. Ms. Lecomte confirmed that she had read the case and had nothing to add to the respondent’s grounds of appeal. Her position was that whilst the respondent’s reasons for failing to provide the HMPO evidence were not irrelevant the evidence that was adduced before the Judge was so significant that it cannot and should not be ignored.
11. Mr. Malik KC argues that either the principle of issue estoppel applied to the appellants’ appeal, or, in the alternative, the Devaseelan principles applied. In this situation the respondent’s failure to provide good reasons as to why the HMPO evidence was not provided to the First-tier Tribunal Judge in 2020, plus the weakness of the evidence belatedly adduced from HMPO, rendered the Judge’s decision correct.
12. Having considered both arguments at length we are not persuaded that the facts of this appeal are analogous to those in Tomlinson. This is because Falk LJ referred in this case to the principle of issue estoppel applying where identical issues arise “between the same parties in successive appeals”:
“66…
c) Issue estoppel requires an identity of issue. This will very commonly not be the case in an immigration context, because the relevant matter (such as a claim to asylum) is being assessed at a different time and in the light of the then prevailing circumstances. In those circumstances the Devaseelan guidance will apply. That guidance applies to the proper approach to facts and evidence which has been considered in an earlier decision, where the issue for determination in the later decision is different because it is being determined at a different time.
d) If, exceptionally, identical issues do arise between the same parties in successive appeals to the FTT then in principle issue stop or may apply, subject always to the “special circumstances” exception referred to in Arnold v NatWest and Virgin Atlantic…
f) The fact that the earlier appeal to the FTT may have related to a different kind of decision of the respondent (such as, in this case, whether to revoke a deportation order as opposed to whether to grant entry clearance) does not prevent issue estoppel if the same issue forms a necessary part of the decision-making in each case. This reflects the distinction between issue estoppel and cause of action estoppel.”
13. In 2020 the parties were Mr. Ali and the Secretary of State for the Home Department. In this appeal the parties are Mrs. Samreena and her son and the Entry Clearance Officer. Mr. Ali is involved as the sponsor and is not a party in the appeal. Therefore, although the issue of his nationality is the same issue that was before the First-tier Tribunal Judge in 2020 the fact that the parties are different render this matter sufficiently different to that envisaged in Tomlinson to lead us to conclude that issue estoppel does not apply. The Judge was not therefore estopped from considering the issue of the sponsor’s citizenship.
14. In Secretary of State for the Home Department v Patel [2022] EWCA Civ 36 at [37] and [38] the Court of Appeal identified the process to be followed in a “different party case” such as this one where a finding is made in an earlier appeal involving a different party, but where there is a material overlap between that case and the second appeal. The Court identified the guiding principles at [37] as:
(i) Where there are different parties but with a material overlap of evidence, the Devaseelan principles of fairness apply with appropriate modification.
(ii) What fairness requires will depend on the particular facts of the case. The findings at an earlier FTT hearing will be an important starting point but the second FTT judge cannot avoid the obligation to address the merits of the case on the evidence then available.
(iii) The second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different finding.
15. Given this is “a different party case” we conclude that the process set out in Patel is the correct approach to follow.
16. We agree with Mr Malik that it is apparent from their decision that the Judge followed this process before reaching the conclusion that there was no good reason to depart from the earlier finding that the sponsor is British.
17. The Judge found at [26] that evidence would have been available from the HMPO in 2020 but for reasons which were not adequately explained, no such evidence was adduced. As the passage from Patel makes clear, that was clearly a relevant finding when considering to depart from the finding that the sponsor is British. We would not however go so far as to say it was determinative of that consideration. As the passage from Patel identifies, a very good reason for departing from the earlier finding might be that the new evidence is so cogent and compelling that it justified a different finding. It remained necessary therefore for the Judge to consider the new evidence on the issue that was adduced by the respondent.
18. The Judge unquestionably did exactly that at [27] – [37] of their decision before concluding that “I take account of all the points raised by the respondent. However even cumulatively, I find that these do not amount to a very good reason to depart from Judge Cox’s findings”. That was a finding that was rationally open to the Judge.
19. In reaching that conclusion, the Judge not only considered the respondent’s reasons for failing to previously produce the evidence from HMPO which they rejected because “The previous Presenting Officer plainly had a number of weeks to check the sponsor’s documentation” (and additionally there had been application for an adjournment), but they also assessed the quality of the evidence itself. In this regard the Judge rationally and reasonably relies on the fact that the search was conducted under the wrong spelling of the sponsor’s name, and there was no evidence in the HMPO evidence that checks had been conducted on any other basis such as the sponsor’s passport number. The reality is that the statement from the HMPO was not the clear and compelling evidence that would justify a different finding about the sponsor’s nationality.
20. We are therefore satisfied that the Judge properly considered the issues in accordance with the Devaseelan guidelines and has reached a properly reasoned conclusion.

Notice of Decision
21. The decision of the First-tier Tribunal does not involve the making of an error of law. The respondent’s appeal is accordingly dismissed.

L K Gibbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 June 2025