Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001235

First-tier Tribunal No: HU/632131/2023
LH/06501/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 June 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

KLODJAN CALA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Richardson, Counsel instructed by Solon Jacobs and Gold
For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 19 May 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Shiner (hereinafter ‘the judge’), promulgated on 22 November 2024, which dismissed his appeal against the refusal of entry clearance to the United Kingdom (‘UK’) as the spouse of Ms Olesea Zaharia (the sponsor).
Background
2. The appellant is a national of Albania, born on 8 December 1997. He first entered the UK in November 2014. In October 2016, he applied for indefinite leave to remain, which was subsequently refused. He was removed to Albania in June 2017.
3. The appellant re-entered the UK in September 2017. He made two applications for settlement under the EU settlement scheme, one in February 2021 the other in January 2023. Both were unsuccessful.
4. On 23 May 2023, the appellant voluntarily departed the UK and returned to Albania, intending to apply for entry clearance as the spouse of his sponsor, a Romanian national with pre-settled status under the EU Settlement Scheme. The appellant submitted said application on 14 July 2023. That application was refused by the respondent on 12 October 2023. The appellant exercised his right of appeal pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 and the matter came before Judge Shiner, sitting at Taylor House, on 18 October 2024.
Position of the respondent before the First-tier Tribunal
5. The respondent refused leave to enter on general grounds under 9.8.2(a) and (c) of Part 9 of the Immigration Rules. The Secretary of State concluded that the appellant had previously contrived in a significant way to frustrate the intention of the rules, by entering and working in the UK illegally, and using a false identity. Additional aggravating factors were cited, including frivolous applications and his illegal re-entry to the UK shortly after removal at public expense.
6. The refusal was also based on suitability grounds under paragraph S-EC.1.5 of Appendix FM. The respondent reiterated concerns regarding the appellant’s immigration history and raised doubts about documentation submitted by the sponsor purporting to confirm her employment with Kub Construction Limited. According to a Document Verification Report (DVR), the documents were deemed to be false.
7. In light of these concerns, the appellant was also found not to satisfy the financial eligibility requirements under paragraphs E-ECP.3.1 to 3.4 of Appendix FM.
8. The respondent further considered whether there were exceptional circumstances under GEN.3.1 and GEN.3.2 but concluded that no such circumstances existed.
First-tier Tribunal appeal
9. The judge heard oral evidence from both the appellant and the sponsor. In his decision of 22 November 2024, he accepted the appellant’s identity, nationality, and the genuineness of the relationship with the sponsor. However, he upheld the respondent’s decision to refuse the application under paragraph S-EC.1.5. This was based on the appellant’s history of unlawful presence and employment in the UK, his two unlawful entries, a withdrawn and unjustified asylum claim, and possession of a forged document when detained by police in November 2014. The judge concluded that these factors amounted to serious conduct rendering the appellant’s exclusion from the UK conducive to the public good.
10. The judge also expressed significant doubts as to the evidence provided by the appellant in respect of the sponsor’s earnings, accepting the evidence in the DVR. He rejected the relevant documents and found that the sponsor had not been employed by the company during the relevant period.
11. In assessing the proportionality of the respondent’s decision under Article 8(2) of the European Convention on Human Rights, the judge concluded that the public interest in maintaining an effective immigration system outweighed any interference with the appellant’s Article 8 rights.
Upper Tribunal appeal
12. The appellant sought permission to appeal to the Upper Tribunal on the following grounds:
(i) That the judge erred in law by misapplying the burden of proof in relation to the respondent’s allegation that false documents had been submitted in support of the appellant’s application.
(ii) That the judge adopted a flawed approach to the interpretation and application of paragraph 9.8.2 of the Immigration Rules.
(iii) That the judge failed to give adequate consideration to the significant public interest in encouraging individuals unlawfully present in the UK to voluntarily depart and apply for entry clearance from abroad.
(iv) That the judge erred in his assessment of the sponsor’s employment documentation and the associated DVR.
(v) That the judge failed to take into account the respondent’s published guidance Suitability: non-conducive grounds for refusal or cancellation of entry clearance or permission, version 3.0, dated 16 January 2024, when considering refusal under paragraph S-EC.1.5 of Appendix FM.
13. Permission was granted by First-tier Tribunal Judge G Wilson on 10 March 2023. Judge Wilson concluded that the judge had misdirected himself in law by stating that the burden of proof on all matters was on the appellant and that the documents were to be assessed in accordance with Tanveer Ahmed principles. The judge failed to acknowledge that in relation to the respondent’s allegations of false financial documents the burden was on the respondent. Permission was granted on all grounds.
14. We heard submissions from both parties and, at the end of the hearing, we reserved our decision. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.
Decision and reasons
15. We have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. Having carefully considered the arguments made by both parties we are satisfied that the judge’s decision is vitiated by a material error of law. We will outline our reasons below.
16. At [10] the Judge Shiner states, ‘The burden of proof on all matters is upon the appellant. The standard of proof is the normal civil standard’. At [12] he continues, ‘I add it is for the Appellant to prove the documents upon which he relies are reliable as per Tanveer Ahmed [2002] UKIAT 00439 approved of by QC (verification of documents; Mibanga duty) China [2021] UKUT 00033.
17. This was a clear misdirection. In cases such as this, where the respondent alleges that false documents were submitted, it is well established that the burden of proving fraud or dishonesty lies with the Secretary of State, not the appellant (see DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 IAC).
18. Ms Lecointe referred us to paragraph [29] of the First-tier decision, where Judge Shiner concluded that the Secretary of State had established that the sponsor's claimed employment as a bookkeeper or in any paid role at Kub Construction was not genuine. In the same paragraph, the judge stated that he accepted the evidence set out in the DVR. The respondent’s position, in essence, was that the error made by the judge was immaterial because it is inevitable that he would have found the respondent had established the deception on the balance of probabilities, even had he not erred in approaching the case on the basis that the burden was on the appellant.
19. However we remind ourselves that the threshold for finding an error of law had no material impact on the outcome of a decision is a high one particularly where, as here, the error amounts to a failure to follow the correct legal process before coming to a conclusion (see [37] of Abdi v Entry Clearance Officer [2023] EWCA Civ 1455).
20. We accept Mr Richardson’s submission that the judge’s misdirection regarding the burden of proof necessarily affected his assessment of the evidence. We cannot be satisfied that the outcome would inevitably have been the same had the judge correctly recognised that the burden was on the respondent to prove deception, rather than on the appellant. We therefore find that the error of law identified in Ground 1 is both established and material, and the decision must be set aside.
21. In light of our findings on Ground 1, the decision of Judge Shiner must be set aside. As we have found that Ground 1 is dispositive of the appeal, we do not find it necessary to address Grounds 2 to 5.
22. For these reasons, we conclude that the decision contains a material error of law. Accordingly, we set aside the decision in its entirety.
Disposal
23. Having identified an error of law, we must now determine whether to retain the appeal in the Upper Tribunal or remit it to the First-tier Tribunal. In either case, we must also consider whether any of the judge's findings should be preserved.
24. Mr Richardson argued that the only appropriate disposal would be to remit the matter to the First-tier Tribunal to decide the appeal de novo because the decision involved an error of law which rendered the overall proceedings unfair such that the appellant was deprived of a fair hearing. We agree. We do not consider that it would be appropriate to preserve any findings of fact given the procedural error identified in Ground 1.
25. We therefore remit the appeal to the First-tier Tribunal to be heard de novo.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law.
The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a judge other than Judge Shiner.

S. Anzani
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025