Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001288
First-tier Tribunal No: EU/50717/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6 May 2026

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

SMAOU FAAL
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R J RENÉ, counsel instructed by BlackWhite Solicitors
For the Respondent: Mr M PUGH, Senior Home Office Presenting Officer

Heard at Field House on 9 April 2026

DECISION AND REASONS

1. The appellant is a citizen of Gambia. Her date of birth is 2 November 1995.
2. Deputy Upper Tribunal Judge Stamp found that the F-tT (Judge Prudham) materially erred when dismissing the appellant's appeal against the decision of the respondent on 5 January 2024 to refuse a family permit under the EU Settlement Scheme (EUSS). He set aside the decision of the F-tT. DUTJ Stamp preserved findings made by the F-tT at paragraphs 17, 18, 19 and 20 of the decision.
3. The appellant is the partner of Mr Mustafa Faal (the "sponsor"), a German citizen residing in the UK with pre-settled status. The appellant’s case is that she and the sponsor entered into a relationship in April 2018 and married in an Islamic ceremony on 13 January 2019 ("the 2019 marriage") and a civil wedding on 13 July 2022 ("the 2022 marriage"), both in Gambia. The appellant relied on the 2019 marriage to demonstrate that she met the rules for a family permit under the EUSS on the basis that this occurred prior to 31 December 2020 (“the specified date”). The respondent did not accept that the appellant had entered into the 2019 marriage because only one of the marriage certificates was signed by the sponsor. Moreover, they were not copies as claimed because they contain material differences.
4. The F-tT did not accept that the appellant had discharged the burden of proof on the balance of probabilities that the 2019 marriage had been validly entered into or that they were in a durable relationship.
5. The preserved findings relate to the tenancy agreement that the appellant produced to support cohabitation and can be summarised as follows: -
(i) The tenancy agreement is dated 1 August 2015, some years before the appellant and the sponsor had even met.
(ii) There was a receipt from the appellant, and the sponsor dated 29 June 2022, said to be six months' rent, which did not explain why the date on the rental agreement is from August 2015.
(iii) The 2015 tenancy agreement is unreliable
6. At the hearing before me the appellant relied on a bundle with an index in five parts, A-E. The appellant’s solicitors have already been warned by the Tribunal on 14 November 2025 that the bundle submitted did not comply with the Guidance on CE File and electronic bundles. They have done nothing to rectify this but continued to upload bundles in the same unsatisfactory format. Moreover, the bundle before the Upper Tribunal for the error of law hearing was incomplete. I remind the solicitors of the overriding objective and obligations on the parties under Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Issues
7. The issues before me to determine are (1) whether the appellant and the sponsor were married in an Islamic ceremony on 13 January 2019, before the specified date and if so (2) is the marriage recognised under Gambian law. If (1) and (2) are not satisfied, I must consider (3) whether the applicant was the durable partner of the sponsor before the specified date and this remained durable at the specified date.
Evidence
8. The appellant relies on her witness statement of 8 April 2024. The sponsor attended the hearing and gave evidence. The sponsor adopted both of his witness statements of 14 January 2026 and 8 April 2025.
9. The appellant relied on two marriage certificates from the 2019 and 2022 ceremonies. In respect of the former, she relied two Form As both of which had been signed by the sponsor. It was accepted by Mr Pugh that the two forms are one page of the same book although they were now detached. The sponsor produced the original signed Form As at the hearing. The Form A submitted with the application, and which was before the F-tT was not signed by the sponsor.
10. There are other documents in part A of the bundle including a letter from the Gambia High Commission in London and the letter from the Registrar General of the Gambian Attorney General Chambers of 5 January 2026. The former is dated 15 January 2026 and purports to certify that the latter is authentic. The latter purports to authenticate the letter of 9 December 2022 stating that it was officially issued by the Ministry of Justice. These two documents were not before the F-tT. The document of 9 December 2022 is from the Registrar General’s Office in Gambia certifying that according to the documents presented the appellant and the sponsor entered a Mohammedan marriage on 13 January 2019 and that it was registered on 25 March 2019 at the Bundung Islamic Court. There is a signed and sealed document from the Commissioner for oaths and affidavits dated 25 March 2019 which seeks to authenticate the marriage certificate. There is evidence from attendees at the marriage.
11. There is a statement from Ya Kumba Jaiteh, a barrister and solicitor of the Supreme Court of Gambia, dated 17 April 2024. The author describes himself as a qualified solicitor and barrister of Basangsang Chambers in Gambia. He was instructed by the appellant's solicitors in relation to the validity of the two marriage certificates relating to the 2019 marriage and the 2022 marriage. The expert says that there are three types of marriages recognised by law in Gambia: civil marriages, Islamic marriages and Christian marriages, and that an individual can have valid marriages under all three at any one period without any one of the marriages invalidating any one of the others. In his opinion, the 2019 and 2022 marriages are valid and legal under Gambian law.
12. Mr Jaiteh concludes that the marriage certificates are valid and lawful under Gambian law. He says that the Sharia or Islamic marriages are governed by the Muslim Marriage and Divorce Act 1941, which says that Muslim marriages and divorces are to be registered. Cadi Courts in Gambia are empowered by the Constitution of Gambia 1997 to determine Muslim marriages and divorces and enjoys the authority to issue marriage and divorce certificates for marriages and divorces determined by them as valid.
The appellant’s evidence
13. The appellant’s evidence chimes with the sponsor’s evidence in all material respects, which I set out below.
The sponsor’s evidence
14. The sponsor’s evidence, in summary, is that he and the appellant married in accordance with Islamic religious rights in Gambia on 13 January 2019. The marriage was registered with the Bundung Cadi Court on 25 March 2019. The marriage is legal under Gambian law. He first met the appellant in Gambia in December 2017. They started a relationship in April 2018. There are two children of the marriage, born on 4 October 2019 and 2 July 2021. The children of the appellant and sponsor are German nationals. The appellant is pregnant with their third child.
15. If the respondent had not disputed the religious marriage certificate, the appellant and the sponsor would not have contracted a civil marriage in Gambia, as both marriages are legal under Gambian law. He would not have had children out of wedlock, as he and the appellant are "pious and practising" Muslims and it would be a sin for them to have children out of wedlock.
16. The marriage certificates (Form As) were completed when the marriage was registered and were attached to each other. They were one page of a book. They are not copies/duplicates in that they were completed separately but at the same time. The sponsor signed both the Form As which were sent to the German authorities to support the appellant's daughter's application for a German passport. The sponsor could not remember when his wife attended the German embassy with the certificates.
17. The sponsor did not sign the two Form As at the same time. He could not remember when, but he realised that he had only signed one. The unsigned Form A was sent to the Home Office. He cannot remember when he first signed it and he cannot remember whether it was officially stamped when he signed it.
18. The 2019 marriage took place in a mosque and although the sponsor was in Gambia at the time, he did not attend and neither did the appellant. The ceremony was attended by their families. The appellant and his wife were not obliged to attend. However, from the date of their marriage, they started to live together. There is a mistake on the tenancy agreement that was not been picked up by the appellant or the landlord, who is the appellant's friend. It was put to the sponsor that he had said he was at the marriage in 2019. The sponsor did not accept this and said he did not understand the question was. He said in evidence that they will need to have a further ceremony, a cultural one, which is more expensive. The sponsor could not be exact about how many people were at the ceremony. He said on that day he was with friends and his wife was at her mother's home, but they got together that evening.
19. The sponsor said that he had been previously married in Germany and has two children in Hamburg. However, when he was asked whether the marriage ended in divorce, he said it was not a marriage, it was a relationship. When asked about what he said at paragraph 18 of his witness statement in relation to be of being a "pious and practising" Muslim, he said that the cultures are not the same in Africa. His wife lives in a Muslim community.
The Secretary of State's skeleton argument and submissions
20. The respondent does not accept that the 2019 marriage took place, and if it did, it is not a legally valid marriage.
21. That the appellant and the sponsor were allowed to register a marriage in 2022 supports the view either that the Islamic marriage is not a legally valid one, or that the appellant and the sponsor were not married in any form in 2019, otherwise they would have been married twice. The respondent relies on the Form A which carries the name and insignia of the Gambian state, refers to the relevant law and is endorsed by a registrar. It is said that it is difficult for the appellant to claim that the state was unaware of any 2019 marriage if the two systems are as closely linked, as the appellant claims and Form A suggests.
22. The respondent says that there are two versions of the document Form A. One was originally unsigned by the sponsor (this was submitted with the first application) although it was still signed and stamped by a registrar. It is not understandable why the sponsor would have left one copy unsigned for any period of time or why the registrar would have signed and stamped it without it being signed by both parties.
23. It is not accepted that the appellant and the sponsor were durable partners. By their own evidence, they began courting in 2018 and the sponsor moved to the UK on 3 January 2020, less than two years into the relationship.
24. Mr Pugh said that is not clear why the appellant was happy to send an unsigned marriage certificate to the Home Office but not to the German embassy. It is unclear what took place in 2019.
The appellant’s skeleton argument and Mr Rene’s submissions
25. The appellant relies on the skeleton argument that was before the F-tT and a supplementary skeleton argument. Mr René asked me to find the appellant and sponsor to be credible.
Conclusions
26. I have taken into account the evidence before me. The burden of proof rests on the appellant. In this case I find that it has not been discharged in respect of the 2019 marriage. For the reasons I explain, while I do not make an adverse credibility finding against the appellant or the sponsor, the evidence concerning the 2019 marriage is insufficient to discharge the burden of proof in this case.
27. There is a gap in the evidence which despite the passage of time remains a mystery. There is no coherent evidence explaining why it was that the appellant and sponsor had an unsigned Form A in their possession. While it is credible that an error could have occurred at some point down the line, there is no evidence which goes near to explain what happened in this case. The sponsor did not sign a Form A which appears to have been overlooked by the registrar who signed and officially stamped the document. There is no evidence from the registrar or any official that the appellant has approached them to resolve the issue. I have taken into account the letters seeking to authenticate the documents, but it is not clear what documents were before the authors and whether they were aware of the unsigned Form A. While I appreciate the passage of time, I find that because it is a fundamental issue in this case, it is reasonable to expect the appellant and sponsor to give a coherent account of how the unsigned Form A came into being, when they realised it was not signed by the sponsor and when and under what circumstances it was signed by the sponsor. It is reasonable to expect evidence to engage with issues that may arise concerning the validity of a document that was not signed by the sponsor when it was signed and stamped by the registrar. This is a fundamental flaw in the appellant’s case with which the authors of the letters of authentication and Mr Jaiteh fail to engage. They do not make reference to the unsigned Form A. I also take on board the reference in the civil marriage certificate to the parties being single.
28. There appreciate that there are factors in favour of the marriage having taken place. I find that the sponsor was able to give an adequate account of the 2019 marriage ceremony. He explained that he and his wife did not need to attend. There is nothing inherently implausible about that. My record of the proceedings does not support inconsistency on this issue. He gave an account of who attended and said that he was with friends that day and his wife was at her mother’s home. He explained that there will be another ceremony in due course which will be more expensive. While the sponsor may have exaggerated about his adherence to Islam in the light of his previous relationship with a German woman with whom he has children, I accept that his wife is currently in Gambia which is a predominantly Muslim country and that the children were born before the 2022 marriage. Notwithstanding this, considering the evidence as a whole, I am not satisfied that the appellant has established that the 2019 marriage took place.
29. I have considered Mr Jaiteh’s evidence that he has taken the two marriage certificates to the Cadi Courts in Banjul and the Registry and that they have confirmed to him that they are authentic documents. However, there is nothing to support that he went through this process. He does not say who confirmed to him that they were authentic and more importantly it is not clear whether the expert (or anyone confirming to him the authenticity of the documents) was aware of the unsigned Form A.
30. Considering the evidence in the round, including letters from those who purport to have attended the 2019 marriage, I do not find that the appellant has established that the 2019 marriage took place.
31. I must go onto consider whether the appellant and the sponsor are in a durable relationship. I find that the sponsor’s evidence about his relationship was straight forward, consistent and credible. His evidence is consistent with the appellant’s about when the relationship began and when the parties started to live together. I appreciate the point made by the respondent that the sponsor moved to the UK on 3 January 2020 and that the relationship started in April 2018 and therefore they have not cohabited for two years either by the time he moved to the UK or by the specified date. However, I find that there is significant evidence that there was a durable relationship before 31 December 2020 and that it continues. The sponsor is employed in the UK which explains why he left Gambia in 2020. I take on board the preserved finding in respect of the tenancy agreement. However, I have had the benefit of hearing the sponsor give evidence for myself. I found him to be credible. His evidence is consistent with the appellant’s as far as the history of the relationship is concerned. The couple’s first child was born in 2019. The couple have two children who are now residing in the UK with their father. The unchallenged evidence is that the appellant is pregnant with their third child. There is no challenge to the civil marriage having taken place, notwithstanding that it was after the specified date, it is further evidence that supports the durability of the relationship throughout the relevant time.
32. The appeal is allowed under Appendix EU of the immigration rules.

_________

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 April 2026