Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001433
First-tier Tribunal No: EU/51005/2023
LE/01874/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

24/06/2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

EDWARD ATTAH KUMAH KLU
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Beyebenwo, Solicitor, Citi Law LLP
For the Respondent: Mr Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 18 June 2026

DECISION AND REASONS

Background
1. The appellant, a national of Ghana, appeals, with the permission of the Upper Tribunal, a decision of a First-Tier Tribunal judge (“the FTTJ”) promulgated on 30 December 2024, dismissing, on the papers, his appeal from the entry clearance officer’s decision of 26 January 2023 refusing his application of 14 November 2022 for an EUSS family permit. The appellant claimed as the family member of a relevant EEA citizen, namely the spouse (marriage by proxy on 8 October 2020) of his wife Gisela Leocadia Teixeira Costa, a national of Portugal with permission to stay under the EUSS.

2. The refusal decision was brief. The respondent was not satisfied that the appellant was the family member of a relevant EEA citizen. The relevant part of the decision read “According to our records, the EEA citizen sponsor you have named is currently sponsoring a different application, also as a spouse. Unfortunately, this casts doubt on the legitimacy of your claim to be married to an EEA citizen sponsor.”

3. The FTTJ referred to the appellant providing a decree absolute dated 9 October 2019 from a Nigerian court with his wife named as the respondent in a divorce suit brought by Emeka Iwuchukwu [7].

4. The FTTJ then said that the documents provided by the appellant’s representative added confusion and complexity because they referred to Omoyemi Baruwa as having married the sponsor on 3 December 2020 in Lagos [8] and said she was unclear why the appellant’s representative had provided evidence of the third marriage (i.e. to Mr Baruwa) because this was not raised as an issue by the respondent. She said that the appellant’s representative had put forward a skeleton argument omitting the issue. She indicated that the respondent might wish to seek a wasted costs order [9]. She also noted that the appellant’s representatives had included in error copies of the passport of a Brazilian citizen Janaina Mendes de Castro and so were in breach of their duty not to disclose information without their client’s consent and this was a personal data breach [10]. Overall, she was not satisfied that the appellant had established that he was the genuine spouse of a relevant EEA citizen.

The grounds
5. Ground one averred that the FTTJ had been wrong; it had been the respondent who had provided the marriage certificate with Mr Baruwa. The FTTJ had failed to engage with the hearing bundle and had wrongly accused the appellant’s representatives. Ground two averred that the FTTJ had made adverse findings against the appellant because of adversely commenting on the document provided by the respondent which was completely irrelevant to the appeal. Ground three averred that the FTTJ had dealt with issues such as the third marriage certificate which were not relevant to the appeal and which were not in dispute.

The rule 24 response
6. The respondent was directed to file a rule 24 response setting out her position. She said that she recognised the force in the permission grounds, as the FTTJ had misunderstood which party provided the documentation and the adverse inferences drawn against the appellant’s solicitors had infected the conclusions reached. The relevant documents appeared in the respondent’s revised bundle. The relevant documents were part of the issues to be decided in the case, but the issues were not well explained either in the refusal letter or the review and so were not considered in the context of the appellant’s case as set out in the evidence and skeleton argument. The FTTJ’s conclusions were unsafe. However, the underlying issue of doubts as to the genuine nature of the marriage plainly had been set out.

The hearing and my conclusions
7. Mr Sheikh agreed that, as the rule 24 response said, there was a material error of law and the decision of the FTTJ should be set aside. He said as the case would have to be decided completely again, it should be remitted to the First-Tier Tribunal to be heard at an oral hearing with all the matters raised in the refusal letter considered.

8. I agree that there were material errors of law in the FTTJ’s decision. The FTTJ was wrong; the respondent had provided the documents questioned by the FTTJ and consequently the FTTJ had wrongly drawn inferences against the appellant’s solicitors and had not considered the case in the light of the evidence in fact produced by the appellant.

9. I do not consider it right, however, to say that the “third marriage certificate” was irrelevant to the appeal. The decision letter had raised that the sponsor was currently sponsoring a different application and that cast doubt on the legitimacy of the applicant’s claim to be married to an EEA citizen sponsor and as a result the respondent was not satisfied that the applicant was a family member of a relevant EEA citizen. The respondent was clearly doubting whether the appellant was married in a genuine marriage. There were several things the respondent could mean. Firstly, to be the family member of a relevant EEA citizen, the marriage must continue to exist at the date of application. Whilst this means the marriage (as opposed to the relationship) is still in existence, the fact that another person is said to be being sponsored could cast doubt on whether the marriage is still in existence, for example the parties may have been divorced by the date of application. Secondly, if there were a pre-existing marriage of either the appellant or the sponsor, the marriage between the sponsor and the appellant would not be valid. Thirdly, the definition of spouse also excludes a party to a marriage of convenience and the respondent might be suggesting the marriage was one of convenience, although if this were the case the burden lay on the respondent.

10. I raised with the parties that I had noted that there seemed to be an additional, fourth, marriage certificate, and this was the relevance of the passport of Janaina Mendes De Castro. The document at p 112 of the consolidated bundle prepared for the error of law hearing, or p 114 of the consolidated bundle read on the pdf reader (p 35 of the original amended respondent’s bundle – Annex D “other application where sponsor is sponsoring another applicant as spouse”) is, as far as I can tell from the Portuguese “Certidao de Casamento”, a copy of a marriage certificate issued in Brazil on 1 June 2020 evidencing a marriage on 1 June 2020 between Janaina Mendes De Castro (the relevance of the passport copy), and the sponsor Gisela Leocadia Teixeira Costa.

11. I said that I agreed with the course proposed by the respondent of remittal to the First-Tier Tribunal because I did not think it was fair to rely against the appellant on a document which although apparently showing a prior marriage, was not in English, I was only guessing what it was saying, and the appellant being out of country, had not had an opportunity to explain his case on it.

12. Mr Beyebenwo argued that I should remake the appeal now and allow it on remaking. He said that it was quite clear that the appellant had been refused entry clearance because the respondent thought that there was an existing marriage at the time. Consequently the appellant had produced a divorce certificate to show that the existing marriage was no longer in place. The decision had referred to sponsoring a different application, but no evidence of such sponsorship had been produced.

13. Mr Beyebenwo was clearly referring to the respondent’s review although that document did not form part of the consolidated bundle produced by the appellant. In the respondent’s review the drafter refers to the entry clearance officer not being satisfied because the sponsor had previously sponsored another individual as a spouse and no evidence that the sponsor was now divorced had been provided. It was said that the previous application was dated 20 December 2012. It was noted from the sponsor’s witness statement that there had been a divorce but said that no evidence of the divorce had been provided.

14. In response to that review the appellant submitted evidence that the marriage between Emeka Iwuchukwu and the sponsor which had taken place on 7 December 2013 ended by divorce on 9 October 2019.

15. I consider that the drafter of the review must unfortunately have been confused. The respondent’s decision does not refer to the sponsor previously sponsoring another individual, as the review says, but rather to the sponsor currently sponsoring another individual and nothing is said in the decision about divorce. I am fortified in my conclusion by the fact that the dates do not match; the sponsor cannot have sponsored Mr Iwuchukwu as her spouse in December 2012 as they were not married until 2013. In addition, the divorce documents were produced in the respondent’s amended bundle before the date of review (see p 22 amended respondent’s bundle), so the respondent had been clearly aware that the sponsor was divorced in 2019.

16. I consider it is clear from the evidence coversheet to the amended respondent’s bundle that the respondent was referring to “other application where sponsor is sponsoring another applicant as spouse” (my underlining) both in respect of Ms Mendes de Castro and in respect of Mr Baruwa and the issue (despite the review) was not simply about whether the sponsor had been divorced from a man she had sponsored in 2012.

17. In the circumstances I did not think it would be fair to accede to the suggestion to proceed to remaking immediately. I did not consider the issues were as narrow as the appellant claimed. I had seen what seemed to be a marriage certificate between the sponsor and Ms Mendes de Castro which appeared to predate the sponsor’s marriage to the appellant by a few months. Although there was not an official translation and it might be said it could not be relied upon, it inevitably raised question marks in my mind and I was concerned that any decision to which I might come immediately would not be fair to the appellant and sponsor neither of whom was present.

18. I considered that to be fair to both appellant and respondent, as there was procedural irregularity due to the FTTJ mistakenly considering the relevant documents to have been produced by the appellant, the appeal should be reheard in the First-Tier Tribunal. No findings should be preserved. An oral hearing was necessary in the interests of justice. I informed the representatives accordingly.

19. Both parties will be free to produce further evidence in the First-Tier Tribunal and of course my comments do not preclude argument about the meaning of the entry clearance officer’s decision and the scope of the issues to be decided. It would be helpful if the respondent further clarifies their case, but I am not giving directions except on one issue; it is up to the respondent how they conduct their case subject to directions from the First-Tier Tribunal. The issue on which I will give directions is in respect of translation. It is not clear if the respondent wishes to rely on the “Certidao de Casamento” (p 35 of the amended respondent’s bundle before the FTTJ, p 112 of the consolidated bundle prepared for this error of law hearing) but if she does, a proper certified translation must be put in evidence.

Notice of Decision

The FTTJ’s decision contains material errors of law and is set aside with no findings preserved. The appeal is remitted to the First-Tier Tribunal (Taylor House) to be heard by another judge.

Directions

(1) There is to be an oral hearing in the First-Tier Tribunal in the interests of justice.
(2) If the respondent wishes to rely in the First-Tier Tribunal on the “Certidao de Casamento” she must supply a certified translation of such document.
(3) Further directions, if necessary, are to be given by the First-Tier Tribunal.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2026