Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000714
First-tier Tribunal No: HU/63615/2023
LH/05677/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 August 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

ISRA ALI ABDALLAH IBRAHIM
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Greer, counsel
For the Respondent: Ms Newton, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 30 June 2026

DECISION AND REASONS

Introduction and Background

1. The appellant is a national of Sudan who seeks entry clearance to join her sponsoring husband in the UK. He is a recognised refugee. She challenges the respondent’s refusal to grant her entry clearance on Article 8 human rights grounds. The appeal was dismissed in the First-tier Tribunal in a decision dated 18 December 2024. That decision was set aside because it involved a material error of law. In the error of law decision, sealed on 6 June 2025, the panel were not minded to preserve any findings of fact and retained the matter in the Upper Tribunal to be remade. This is the procedural backdrop against which the underlying human rights appeal came before me to be decided.

2. The appellant’s case involves a somewhat unusual and complex factual background. In very brief summary, she claims that she married her sponsor, her cousin, in a customary Islamic marriage in 2011 when they were both residing in Sudan. In accordance with local tradition, it was asserted that the customary marriage was not recorded in any official documentation. In January 2013, the sponsor left Sudan for Libya where he lived and worked for approximately 2 years. He travelled to the UK where he was granted refugee status in 2015. Before leaving Libya, the couple married in Sudan by proxy in March 2014. It is essential to read this remaking decision in conjunction with the error of law decision which sets out the procedural and factual backdrop in fuller detail.

The Remaking Hearing

3. At the remaking hearing, I heard oral evidence from the sponsor with the assistance of an interpreter. I then heard submissions from both parties. The issues to be resolved in the appeal crystallised over the course of the hearing. Upon service and admission of a properly translated certificate of the proxy marriage in 2014, the respondent conceded that the couple were lawfully married according to Sudanese law and that it was therefore a lawful and valid marriage for the purposes of the applicable Immigration Rules. In addition, there was no dispute that the relationship between the appellant and sponsor was genuine and subsisting. The parties were ultimately in lockstep that a single factual question would resolve the appeal. If the sponsor was habitually resident in Libya when party to the proxy marriage in 2014, the appellant met the requirements of the rules and the appeal should succeed on Article 8 human rights grounds because family life was plainly engaged and the refusal of entry clearance would be a manifestly disproportionate interference with family life because the applicable rules were satisfied. If I resolved this factual question against the appellant, I would then need to consider the contested issue of whether the couple were married in a customary ceremony in 2011.

4. At the hearing, I raised an additional point as to whether the appellant and sponsor were, as cousins, within the prohibited degree of relationship set out in the applicable rules. I issued directions for the appellant’s representatives to file written submissions on the point which Mr Greer promptly served later the same day. The respondent was afforded an opportunity to respond to those further submissions and apply for a further hearing if it was considered to be justified. In a letter dated 14 July 2026, Ms Newton took no issue with Mr Greer’s submissions that the couple were outside the prohibited degree of relationship. She set out her position that there was “no justification” for a further hearing.

Discussion

5. Dealing first with the prohibited degree of relationship, I agree with Mr Greer’s legal analysis as set out in his written submissions of 30 June 2026. The effect of this analysis was that the combination of the interpretation provisions of the Immigration Rules and the provisions, cited therein, of the Marriage Act 1949, the Marriage (Prohibited Degrees of Relationship) Act 1986 and the Civil Partnership Act 2004 is clear that the relationship of first cousin is not within the relational prohibition.

6. After a regrettable procedural backdrop where the respondent laboured under the misapprehension that an inapplicable part of the Immigration Rules applied to the circumstances of this case, it was agreed before me that paragraph 352A (in force as of 4 February 2022) was the applicable scheme. It provides:

Family Reunion Requirements for leave to enter or remain as the partner of a refugee

352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the partner of a person granted refugee status are that:
(i) the applicant is the partner of a person who currently has refugee status granted under the Immigration Rules in the United Kingdom; and
(ii) the marriage or civil partnership did not take place after the person granted refugee status left the country of their former habitual residence in order to seek asylum or the parties have been living together in a relationship akin to marriage or a civil partnership which has subsisted for two years or more before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and
(iii) the relationship existed before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and
(iv) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and
(v) each of the parties intends to live permanently with the other as their partner and the relationship is genuine and subsisting
(vi) the applicant and their partner must not be within the prohibited degree of relationship; and
(vii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

[Underlining added]

7. Country of former habitual residence was interpreted in the reported decision of A (Somalia) [2004] UKIAT 00031. Vice President Lane (as he then was) made the following observations about the meaning of this part of the rules at [34]-[36]:

In many cases, the country of a person's former habitual residence, which he or she leaves in order to seek asylum, will be the country in which the person granted asylum in the United Kingdom, has a well-founded fear of persecution. If, however, the drafter of paragraph 352A had intended the reference to such a country in sub-paragraph (ii) to be so confined, it would have been an easy matter to have said so.

We put to Mr Schwenk the following point. If paragraph 352A(ii) falls to be construed so as to permit the appellant in the present case to succeed if he can show that his wife was habitually resident in Ethiopia, before coming to the United Kingdom, a potential anomaly arises. On the face of it, there would seem to be no good reason why a couple who flee persecution in country X, and who marry in country Y in circumstances where their situation in country Y is so temporary and/or precarious as to prevent them from being habitually resident there, should be excluded from the benefit of paragraph 352A. Mr Schwenk's response was, in effect, to the effect that the existence of such a potentially anomalous situation should not lead the Tribunal to adopt a construction of paragraph 352A(ii) which removes from its ambit even more cases of a meritorious nature, thereby taking paragraph 352A even further from the spirit and intent of the recommendation of the Final Act of the 1951 Conference. The Tribunal agrees.

However, even on this construction of paragraph 352A, the appellant will only succeed if he can show on balance that the sponsor was habitually resident in Ethiopia. Mr Schwenk relied upon the House of Lords' opinions in Nessa v Chief Adjudication Officer [1998] No.2 All ER 728. In that case, whilst not coming to the conclusion that "ordinary residence" and "habitual residence" were synonymous, their Lordships found that there was a degree of overlap and that the common core of meaning between the two expressions made it relevant to consider case law decided on the meaning of "ordinary residence". That expression connoted "residence in a place with some degree of continuity and apart from accidental or temporary absences" (see Levene v Inland Revenue Commissioners [1928] AC 217, 225). In Shah v Barnet London Borough Council [1983] 2 AC 309, Lord Scarman held that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. The House of Lords in Nessa remitted the matter to be decided on a proper basis by the relevant Tribunal. In doing so, they accepted that "an appreciable period" of residence, such as to establish habitual residence, may be as short as a month (see MacDonald's Immigration Law and Practice, fifth edition, paras. 5.14 and 13.21).

8. It is for the appellant to establish on the balance of probabilities that her husband was habitually resident in Libya when they married by proxy, according to Sudanese law, in 2014. The critical evidence in support of this proposition came from the sponsor who gave oral evidence and was cross-examined. It is important to note that there was no dispute or challenge to the effect that the sponsor had left Sudan to live in Libya in January 2013, and that he remained as a working resident there until he left for the UK approximately 2 years later. The real point of challenge related to what was in his mind when he left Sudan and while he remained in Libya. It was suggested that Libya was always a transit country and that he never intended to set down roots. The appellant maintained under questioning that his intention was to live and work in Libya and that this sense of permanence was the very reason why he arranged the proxy marriage to the appellant so that she would be able to join him in Libya because their customary marriage would not have been recognised by the Libyan authorities. It was only when the security conditions seriously deteriorated in Libya that he made the decision to flee for Europe.

9. The broad narrative related by the sponsor cohered with the notion that his intention when he left Sudan was to put in place the necessary foundations for the appellant to join him in Libya. Firstly, if Libya was merely a staging post en route to Europe, as contended by the respondent, he remained at this staging post for a considerable period of approximately 2 years. He also made arrangements to marry the appellant by proxy while he was still in Libya. This fits in with his evidence that he was laying the groundwork to enable his wife to join him there. A further account of the sponsor lends considerable force to what his intentions were at this time. In his statement of evidence form (‘SEF’), completed for the purposes of his asylum claim in October 2015, the sponsor was asked about the circumstances surrounding the proxy marriage in 2014. In response to question 180, as to whether he intended to return to Sudan at this time, he said this: “No but I was intending to stay in Libya and bring my wife over”. The sponsor could have had no semblance of the importance of establishing that Libya was his place of habitual residence in 2014. This account which came relatively soon after his departure from Libya, and with no obvious reason to lie, strongly supports the consistent claim he now makes over a decade later in support of his wife’s application to join him in the UK. When I stand back and assess the overall evidential picture, the appellant has established on the balance of probabilities, through the fully tested evidence of her sponsor, that she married her husband in 2014 when he was habitually resident in Libya. By the time the couple married by proxy in March 2014, the sponsor had been living and working in Libya for well over a year, had seemingly taken no steps to leave the country for an onward destination and had made arrangements to regularise his wife’s status with the intention of putting in place the conditions for her to join him in Libya. I am satisfied that this all weighs in favour of the sponsor having settled in Libya with a degree of continuity over an appreciable and meaningful period of time. Having found that the couple were married when the sponsor was in his country of habitual residence, and in accordance with the parties agreement that this was a decisive and dispositive question of fact, the appeal is allowed because the appellant met the applicable rules which renders the refusal decision demonstrably disproportionate as per [34] of TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109.

10. Given the primary factual conclusion I have reached which disposes of the appeal, it is not necessary to consider whether the couple were married in a customary Sudanese ceremony in 2011.

Notice of Decision

The appeal is allowed on Article 8 human rights grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 July 2026