Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001847

First-tier Tribunal No: EU/53224/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between

Secretary of State for the HOme Department
Appellant
and

KIM MARIE TUPA
(NO ANONYMINTY ORDER MADE)
Respondent

Representation:
For the Appellant: Mrs A Nolan (Senior Presenting Officer)
For the Respondent: Representing herself.

Heard at Field House on 20 June 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of Judge Rothwell made on 15 March 2025, allowing Mrs Tupa’s appeal on human rights grounds. That decision was made following an oral hearing on 05 March 2025. Permission to appeal was granted by First-tier Tribunal Judge Boyes on 23 April 2025.
The hearing
2. I had before me a 161 page consolidated bundle that consisted of the decision being appealed, grounds, decision on permission, and the evidence that was before the First-tier Tribunal. Page references will be to this bundle unless otherwise stated.
3. I heard submissions from Mrs Nolan and Mrs Tupa in relation to the grounds of appeal.
4. At the conclusion of submissions, I indicated that I was reserving my decision. I now give my decision in writing.
Errors of law
5. The assessment of whether the Judge made any material errors of law begins with reminding myself of the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal, as emphasised by many cases from the higher courts.
6. The grounds of appeal for which permission was granted identify four distinct grounds and I address each in turn.
Ground a
7. This ground argues that the reasons provided by the Judge were inadequate.
8. Mrs Nolan specifically argued that in relation to the findings about insurmountable obstacles the Judge’s reasons did not engage with any potential steps that could be reasonably taken as mitigation against the difficulties Mrs Tupa and her husband would face on return to the United States of America.
9. She relied on CL [2019] EWCA Civ 1925, and in particular [36] to support her argument:
In applying this test, a logical approach is first of all to decide whether the alleged obstacle to continuing family life outside the UK amounts to a very significant difficulty. If it meets this threshold requirement, the next question is whether the difficulty is one which would make it impossible for the applicant and their partner to continue family life together outside the UK. If not, the decision-maker needs finally to consider whether, taking account of any steps which could reasonably be taken to avoid or mitigate the difficulty, it would nevertheless entail very serious hardship for the applicant or their partner (or both).
10. She referred me to [28] – [30] of the respondent’s review (page 160) to demonstrate these points were in issue between the parties.
11. The written reasons do not have to deal with every point raised by the parties. A judge needs to determine the principal points of dispute and provide reasons so that the parties and an informed reader can understand how they have done so.
12. Reasons for judgment will always be capable of having been better expressed, but in this case the Judge’s reasoning, set out from [10] – [26], is sufficiently clear and detailed.
13. In particular [17] – [19] deal with the points raised in [28] –[30] of the respondent’s review. The Judge accepted Mrs Tupa’s evidence as being credible and concluded, based on that evidence that there would be insurmountable obstacles to her and her husband continuing their family life in the USA.
14. I find that this ground does not disclose a material error of law.
Ground b
15. In this ground, the appellant seeks to argue that the Judge failed to follow the principles established in TK (Burundi) [2009] EWCA Civ 40, when accepting her evidence about difficulties she and her husband would face on return to the USA.
16. Mrs Nolan emphasised that the burden was on the appellant to provide evidence in support of her appeal, and that would include documentary evidence.
17. The principle expressed by Lord Thomas in TK (Burundi) is found at [21]:
The circumstances of this case in my view demonstrate that independent supporting evidence which is available from persons subject to this jurisdiction be provided wherever possible and the need for an Immigration Judge to adopt a cautious approach to the evidence of an appellant where independent supporting evidence, as it was in this case, is readily available within this jurisdiction, but not provided. It follows that where a Judge in assessing credibility relies on the fact that there is no independent supporting evidence where there should be supporting evidence and there is no credible account for its absence commits no error of law when he relies on that fact for rejecting the account of an appellant.
18. However, in this case the Judge was not assessing credibility. In [10] of the decision the Judge records that the Secretary of State’s representative did not challenge Mrs Tupa’s credibility. In light of that the Judge was under no obligation to consider if the oral evidence presented should be supported by documentary evidence that could have been provided but was not.
19. Ground b also mentions that the evidence before the First-tier Tribunal did not show that the medical conditions of Mrs Tupa and her husband met the article 3 threshold. However, it is clear from reading the determination as a whole that this was not an issue between the parties and the Judge did not allow the appeal on article 3 grounds. Mrs Nolan rightly did not make submissions on this point.
20. The ground does not disclose a material error of law.
Ground c
21. Ground c argues that there was a lack of evidence before the Tribunal for the Judge to conclude that the decision to refuse Mrs Tupa leave to remain would result in a breach of article 8.
22. Mrs Nolan conceded that this was effectively the same argument as that in ground a: that the Judge did not turn their mind to potential mitigation points raised by the Secretary of State.
23. Ultimately this ground, as written, is a series of submissions that were put before the First-tier Tribunal and a disagreement with findings that were open to the Judge on the evidence before them.
24. I find this ground does not disclose a material error of law.
Ground d
25. Ground d argues that the Judge failed to properly apply the principle in Chickwamba [2008] UKHL 40 in light of the more recent case of Alam & Anor [2023] EWCA Civ 30.
26. There is weight in this argument. The initial decision to refuse Mrs Tupa leave to remain was not on the sole basis that she should leave the UK in order to make an application for leave to enter.
27. Mrs Nolan conceded however, that if the reasoning of the Judge in relation to insurmountable obstacles did not contain an error of law, the failure to properly apply Chikwamba would not be material.
28. As I have found the grounds of appeal in relation to the Judge’s findings on insurmountable obstacles do not disclose an error of law, I find this ground does not disclose a material error of law.
Conclusion on errors of law
29. I find for the reasons set out above that the decision of Judge Rothwell did not contain material errors of law.
Notice of decision
30. The decision of Judge Rothwell, dated 15 March 2025, does not contain material errors of law.
31. This appeal is dismissed on all grounds and the decision of the First-tier Tribunal stands.

N Webb

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
20 June 2025