Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001609

First-tier Tribunal No: EU/55100/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of November 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

ANITA OPOKO
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ndubiusi, Drummond Miller LLP
For the Respondent: Ms Nolan, Home Office Presenting Officer

Heard at Field House on 30 October 2025

DECISION AND REASONS
1. The Appellant is a citizen of Ghana. She was granted permission to appeal by the Upper Tribunal (Judge O’Callaghan) to appeal against the decision of the First-tier Tribunal (FTT) (Judge Agnew) to dismiss her appeal.
2. The judge did not accept that the Sponsor was the Appellant’s grandfather which was how the case was presented before the FTT (and the basis of the Appellant’s application). The judge rejected that the Appellant was a family member of a relevant EEA citizen. The appeal was dismissed on this basis and the judge said there was no need to consider any of the other issues in dispute.
3. With the application for permission the Appellant’s solicitors made an application under Rule 15(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Procedure Rules”) to rely on evidence that was not before the FTT, namely an affidavit from the Appellant’s mother and a DNA report. The conclusion of the DNA report is that the Sponsor is the Appellant’s father. The Appellant’s mother’s evidence is that the Appellant’s “grandfather” was her (the mother’s) step-father and is the Appellant’s father. The reason for the delay in producing this piece of evidence is explained by the Appellant’s mother in her affidavit and it is summarised in the application as follows:-
“The reason for the delay or failure to produce this is particularly gleaned from the affidavit in support from appellant’s mother which revealed a deep family secret regarding appellant’s parentage which the mother and the sponsor had hidden from the appellant due to the family scandal this may occasion. The evidence was not known to the appellant as she was not privy to the secret revealed therein and thus could not reasonably have been aware of the existence of this evidence. Appellant’s mother and sponsor had previously balked at the idea of conducting a DNA test before now all because of what it has revealed. Appellant could not have done more in the circumstance”.
4. The Appellant relies on Ladd v Marshall [1954] 1 WLR 1489 to support that the evidence should be admitted.
5. The grounds of challenge were poorly particularised. The judge granting permission identified four grounds. He identified as the fourth ground as a request for the Upper Tribunal to take into account postdecision evidence; namely, an affidavit and DNA report. He said it was appropriate for the Upper Tribunal to consider the application under Rule 15(2A) at an oral hearing although he said that the Appellant should be properly aware that the Upper Tribunal may decide that the appropriate course is for the Appellant to make a new application.
6. The Respondent relied on a Rule 24 response. The Respondent opposes the appeal and the admission of new evidence and contends that the introduction of the evidence raises wider questions of admissibility, credibility, and procedural fairness and that the evidence has not been tested under adversarial conditions. Ms Nolan said that the Respondent has not been served with a copy of the DNA report or the affidavit and has therefore no opportunity to test, respond to or verify the authenticity or content of the new material. Both parties made submissions. Mr Ndubiusi relied on his skeleton argument.
Conclusions
7. The judge attached weight to a document verification report (“the DVR”) upon which the Respondent relied to support that the document submitted by the Appellant to establish that the Sponsor is her grandfather; namely, the birth certificate of the Appellant’s mother, was “inconclusive”. The DVR noted that enquiries were made of the Senior Assistant Registrar, Ministry of Local Government and Rural Development, Government of Ghana relating to the birth certificate of “Mary Gyamera” and that information reported by this individual was that the document was assessed as “referred”. The judge expressed concerns about the documents submitted by the Appellant for a number of reasons explained at [17]–[33].
8. The DNA evidence does not support the Appellant’s case as advanced before the FTT. It seeks to support that the Sponsor and the Appellant are father and daughter and not grandfather and daughter as was the case advanced before the FTT. The evidence is capable of establishing a family relationship which is material to the issue before the FTT. However, it could have been obtained with reasonable due diligence for use at the original hearing. While the Appellant’s mother and Sponsor may not have wanted the Appellant to have become aware of her true parentage, this does not explain why the Appellant, in ignorance of what is now said, did not pursue obtaining DNA evidence to support her case. There is no evidence that she sought to do so or that the Sponsor would not cooperate with this or that she was influenced by her mother or Sponsor not to have a DNA test. The Appellant is an adult and was responsible for conducting her own case. The Appellant was aware that the relationship between her and the Sponsor was a significant issue in the case to be resolved. She was legally represented and it can be inferred that she was advised of the importance of providing evidence which would establish the relationship such as DNA evidence. The option of obtaining DNA evidence was always open to the Appellant. The Appellant does not meet the first limb of the guidance in Ladd v Marshall.
9. I have considered whether discretion should be exercised in the Appellant’s favour. I am mindful of the further resources needed to consider another application and perhaps a further appeal. However, applying the overriding objective under Rule 2 of the Procedure Rules, I conclude that fairness does not demand that the evidence should be admitted. It is not objectively unfair that it is not admitted.
10. The Appellant’s DNA evidence does not support the case as advanced before the FTT. The evidence has not been served on the Respondent and it was unreasonable to expect Ms Nolan to take a view on it at the hearing. She did, however, draw my attention to the Appellant’s mother’s birth certificate which contradicts the DNA evidence because it names the Sponsor as her father.
11. I have considered E v SSHD [2004] EWCA Civ 49 specifically at [66] and Kanhirakandan v SSHD [2023] EWCA Civ 1298. The facts in the former relate to evidence that was not and should have been before the judge to support the Appellants’ asylum claims. The evidence existed at the date of the hearing before the FTT and it supported the Appellants’ cases as advanced before the FTT.
12. It cannot be said in this case that the judge proceeded on the basis of an objectively verifiable mistake. He proceeded on the basis of the Appellant’s case as advanced before him taking into account the evidence on which the Appellant relied. There was no DNA evidence in existence at the time of the hearing. It cannot be said that the judge proceeded on the wrong facts. There was no evidence in existence that he had did not consider through no fault of the parties. The DNA evidence does not support the Appellant’s case as it was argued before the FTT. Moreover, it has not been established in the sense that it is uncontentious and objectively verifiable. The issue of the familial relationship between the Appellant and the Sponsor was not determinative of the appeal. Had the judge found that the Sponsor and the Appellant were related as claimed, the issue of dependency would need to have been determined. There are no properly identified exceptional circumstances in this case that would support that the application is granted. The factual matrix of the Appellant’s case has changed and the appropriate course is for her to make another application. I was told that the Sponsor’s circumstances have changed and the Appellant could not meet the dependency requitement of the Rules. While this may be the case, it does not entitle the Appellant to what is in effect a second bite of the cherry.
13. I refuse to admit the evidence pursuant to Rule 15(2)(A) of the Procedure Rules. It follows that there is no error of law in the decision of the judge.
Notice of Decision
14. The application under Rule 15(2)(A) of the Procedure Rules is refused.
15. The appeal is dismissed.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 November 2025