Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001906

First-tier Tribunal No: EU/53457/2024
LE/00345/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

ELIZAEBETH SAYKIBA NEWTON
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Malik, Counsel, instructed by RBN Solicitors
For the Respondent: Mr M. Parvar, Senior Home Office Presenting Officer

Heard at Field House on 5 June 2025

DECISION AND REASONS
Introduction
1. This is an appeal by Elizabeth Saykiba Newton (“the appellant”) against the decision of First-tier Tribunal Judge Degirmenci (“the judge”) dated 10 March 2025, to dismiss her appeal against the Secretary of State’s (“the respondent’s”) refusal to allow her application for settled status under the EU Settlement Scheme.
Background
2. The appellant is a Ghanian citizen. On 17 January 2019 she married Mr George Owusu Yeboah, who is a German citizen.
3. On 17 September 2022 she made an application for settlement under Appendix EU to the Immigration Rules, on the basis that she is the spouse of an EEA citizen. In support of her application she provided a copy of her Ghanian passport, her sponsor’s German passport and their marriage certificate.
4. Before determining the application the respondent invited the appellant and her sponsor to attend an “eligibility interview”. The appellant attended an interview via Microsoft Teams on 4 January 2024 but the sponsor did not attend.
5. By way of a letter dated 23 April 2024 the respondent refused the appellant’s application. The respondent referred to eligibility interview, highlighting inconsistencies between responses given by the appellant and information held by the Home Office, as well as omissions in the appellant’s knowledge about the sponsor, which caused the respondent to conclude that the appellant had entered into a marriage of convenience for the purpose of circumventing immigration laws.
First-tier Tribunal Decision
6. The appellant appealed against the respondent’s decision and her appeal was heard by the First-tier Tribunal on 18 February 2025 by Cloud Video Platform. The appellant was legally represented. The respondent did not appear. However, the judge concluded it was in the interests of justice to proceed in the absence of the respondent, and noted that the lack of representation on behalf of the respondent did not mean the appeal was no longer challenged by the respondent. The appellant produced a witness statement and was asked questions by her legal representative and the judge during the hearing [5].
7. The sole issue for determination by the judge was whether the appellant was a party to a marriage of convenience [7]. The judge made the following findings:
i. The respondent had produced an “Interview Summary Sheet” which purported to summarise the inconsistencies in the appellant’s answers during the interview. “Little weight” could be attached to the Interview Summary Sheet because of the absence of any information about the author of the document and the failure to exhibit the questions and answers relied on [16].
ii. The respondent had not produced a full transcript of the interview. The parts produced did not include the questions and answers in relation to which the Secretary of State alleged the respondent had given inconsistent or inadequate answers [17].
iii. However, the appellant had been provided with a copy of the full transcript, she had been through it with her legal representatives and she did not dispute the answers she had given were inconsistent with records held by the Home Office [18 – 21].
iv. The judge concluded that “the assertions made by the respondent about the inconsistencies during the interview are serious enough and sufficient to raise a prima facie case that the marriage was one of convenience” [21].
v. In view of which, the judge concluded the burden of proof shifted to the appellant “to show that this is not a marriage of convenience” [22].
vi. The judge rejected the appellant’s explanation that the inconsistencies could be explained by problems in translation or in the recording of her answers during the interview [23].
vii. At [24] the judge recorded there was no evidence from the sponsor in support of the appellant’s application, or to support the account she had given at the interview. The appellant provided an explanation about the sponsor’s absence and the lack of any evidence from him. Namely, by the time of the interview, the sponsor had travelled to Ghana to attend a funeral, had suffered a stroke and she lost contact with him. The judge did not find the appellant’s explanation to be credible because there was no medical evidence about the sponsors condition, her evidence was “contradictory” and inconsistent with “the respondent’s assertion” based on Home Office records that the sponsor had been in the United Kingdom since the events the appellant had described [24-25]. At [25] the judge found “it is more likely than not that the reason for a complete lack of evidence from and about the sponsor is because the appellant is a party to a marriage of convenience which was entered into to attain a right to reside for the appellant in the UK”.
viii. The judge took into consideration the appellant’s letters of support but found they did not assist the appellant “to rebut any allegation that she entered into a marriage of convenience” [26].
ix. At [27] the judge concluded the appellant had “given inconsistent and unreliable evidence and had failed to demonstrate, on a balance of probabilities, that she is not a party to a marriage of convenience”.
x. At [28] the judge concluded “the respondent has shown that the appellant is not a spouse within Appendix EU”.
Grounds of Appeal
8. The appellant appealed against the decision of the First-tier Tribunal on two grounds:
i. The judge had materially erred by reversing the burden of proof. The judge had required the appellant to prove, on the balance of probabilities, that she was not party to a marriage of convenience. However, the case law required the respondent to prove, on the balance of probabilities, that the appellant is party to a marriage of convenience.
ii. The judge had erred in evaluating the evidence, namely “witness statements” from people known to the appellant demonstrating the appellant and the sponsor were in a genuine and subsisting relationship.
9. Permission to appeal was granted by a judge of the First-tier Tribunal on 23 April 2025.
The Hearing before the Upper Tribunal
10. In relation to the first ground of appeal, Mr Malik submitted the judge had erred in law by requiring the appellant to demonstrate she is not a party to a marriage of convenience [27], rather than requiring the respondent to prove the appellant is a party to a marriage of convenience. Mr Malik submitted the appellant had provided a reasonable explanation in response to the respondent’s assertion that she was a party to a marriage of convenience, consequently the burden had shifted back to the respondent to show why the appellant’s explanation should not be accepted. Mr Malik submitted that the respondent had not discharged the burden of proof, because the respondent was not represented at the hearing to put the respondent’s case [5], had not produced a full transcript of the interview [17] and the judge had only attached “little weight” to the Interview Summary Sheet [16]. Mr Malik did not pursue his second ground of appeal at the hearing. He submitted that if I found that there was a material error of law, the case should be remitted to the First-tier Tribunal to determine the appeal de-novo.
11. Mr Parvar accepted the judge had erred in law by incorrectly referring to the legal test at [27] where she concluded the appellant “has failed to demonstrate, on a balance of probabilities, that she is not a party to a marriage of convenience”. Mr Parvar submitted [27] had been “clumsily” drafted but invited me to find that despite its deficiencies the decision contained detailed reasoning which demonstrated the judge had followed the necessary steps and there was no material error of law. Mr Parvar relied upon the judge’s adverse credibility findings [23-25] in support of the submission that having concluded the Secretary of State had established a prima facie case [21], the burden had shifted to the appellant to provide an innocent explanation, and although the judge did not reach an express finding about whether the appellant’s explanation had reached a minimum level of plausibility, the judge had clearly rejected the credibility of the appellant’s account. Although only an Interview Summary Sheet had been provided, Mr Parvar highlighted that this was done in circumstances where the appellant had not denied the interview transcript contained information which was contradicted by Home Office records. Mr Parvar submitted the judge did not find that the respondent’s evidence was not enough to satisfy the legal test. However, if I were to find there had been a material error of law, Mr Parvar remained neutral about whether the appeal should be remitted or retained and did not suggest any factual findings should be preserved.
12. I am grateful to both advocates for their submissions.
Analysis
13. In Rosa v SSHD [2016] EWCA 14 the Court of Appeal held that the legal burden of proving an appellant is a party to a marriage of convenience so as to justify the refusal of the application lies throughout with the Secretary of State (paras. 24, 29 and 39) and the civil standard of the balance of probabilities applies (para. 18). The Court of Appeal endorsed the approach in Papajorgi (EEA spouse – marriage of convenience) Greece [2012] UKUT 38 (IAC). In Papajorgi the Upper Tribunal explained that once an applicant had provided a marriage certificate and spouse’s passport in support of their EEA application, there was no further evidential burden on an applicant unless and until the Secretary of State demonstrated, through evidence, their reasonable suspicion that the marriage was one of convenience. At that point, the evidential burden shifts and it falls to the applicant to address the respondent’s reasonable suspicions. However, this is a shift in the evidential rather than the legal burden, which remains with the Secretary of State. Hence, the Upper Tribunal in Papajorgi, considering the earlier determination of the Asylum and Immigration Tribunal in IS (marriages of convenience) Serbia [2008] UKAIT 0031, stated: “If the AIT was intending to go further than this and decide that once evidence of reasonable suspicion has been raised, there is a legal burden on the applicant to demonstrate that it was more probable than not that the marriage is not one of convenience, we would have reservations about such an approach”(para.16 Rosa, endorsing Papajorgi at para. 20, and Rosa at para. 29 ).
14. This is a case where the judge has fallen into the error identified by the Upper Tribunal in Papajorgi. Rather than considering the totality of the evidence and deciding whether the Secretary of State had proven, on the balance of probabilities, the appellant is a party to a marriage of convenience, the judge has reserved the burden and required the appellant to prove, on the balance of probabilities, she is not a party to a marriage of convenience [27]. Therefore, I am satisfied the judge has misdirected herself in relation to the applicable legal test and has erred in law.
15. I must therefore consider whether the error of law was material, in relation to which the question is whether, on the evidence before the First-tier Tribunal, any rational tribunal would be bound to come to the same conclusion as the First-tier Tribunal judge: ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282, para. 44. Following, Papajorgi the question for a tribunal considering the evidence would be whether “in light of the totality of the information before me, including the assessment of the claimant’s answers and any information provided, I am satisfied that it is more probable than not this is a marriage of convenience” (para. 39).
16. In this appeal, the respondent chose not to attend the First-tier Tribunal hearing to put the case on behalf of the Secretary of State. The respondent also chose not to produce in evidence the transcript of the interview which the respondent had relied upon in the refusal letter to demonstrate the inconsistencies between the appellant’s account and information held by the Home Office, and the omissions in the appellant’s knowledge about the sponsor, which caused the respondent to conclude that the appellant was party to a marriage of convenience. Instead, at the hearing before the First-tier Tribunal the respondent relied only upon an Interview Summary Sheet.
17. The First-tier tribunal judge rejected the appellant’s argument that because the respondent had not produced a full transcript of the interview, the respondent had not discharged the burden of proof [18]. The judge found the transcript had been disclosed to the appellant, who had not denied there were contradictions between what she had said in the interview and records held by the Home Office [19]. However, the judge also found she could only “place little weight” on the Interview Summary Sheet, describing it as purporting “to summarise these inconsistencies in the appellant’s answers” and noting the “author of this summary sheet is not identified, has not signed this document or produced a signed witness statement and has failed to exhibit the questions and answers relied upon” [16]. Despite this finding the judge concluded “the assertions made by the respondent” were sufficient to raise a prima facie case that the appellant was a party to a marriage of convenience [22].
18. The judge has erred, not only in setting out the legal test at [27] but also in her approach to the evidence. It was necessary for the judge to assess the respondent’s evidence, rather than the “respondent’s assertions”, and to consider whether she was satisfied on the totality of the evidence that the respondent had proven the appellant was party to a marriage of convenience. Given the judge had found she could attach only “little weight” to the respondent’s only evidence – the Interview Summary Sheet – it is not clear how the judge could then reach a finding that the respondent had produced evidence, which established on the balance of probabilities the appellant was a party to a marriage of convenience.
19. The First-tier Tribunal judge’s assessment of the weight to be attached to the Interview Summary Sheet was not challenged by Mr Parvar in the hearing before me, albeit he submitted in the circumstances, it was appropriate for the Secretary of State to rely on the summary document, rather than the full transcript. Another judge may assess differently the weight to be attached to the Interview Summary Sheet. However, the First-tier Tribunal judge who had the benefit of considering the evidence at the appeal hearing, determined that only “little weight” could be attached to it. A reasonable tribunal might therefore make the same assessment about the weight to be attached to the Interview Summary Sheet and potentially conclude that the respondent has not produced evidence sufficient to demonstrate the appellant is a party to a marriage of convenience.
20. I accept Mr Parvar’s submissions that the judge reached detailed and damaging findings in relation to the appellant’s credibility. The judge did not find credible the appellant’s explanation that she did not know about the whereabouts of the sponsor [24] and found it was more likely than not the reason for the lack of evidence from and about the sponsor was because the appellant is a party to a marriage of convenience [25]. The lack of evidence from the sponsor and the lack of a plausible explanation for the absence of evidence from the sponsor, could be highly relevant to a tribunals assessment of the totality of the information. However, significantly, it is for the respondent, and not for the appellant to discharge the legal burden, and as explained in the previous paragraph, it is possible that a rational tribunal could conclude the respondent had not produced sufficient evidence to establish the appellant is party to a marriage of convenience. It is not therefore inevitable, in the circumstances of this case, that any rational tribunal would be bound to come to the same conclusion as the First-tier Tribunal judge. I am therefore satisfied that the First-tier Tribunal decision involved a material error of law.
21. Having concluded that the First-tier Tribunal made a material error of law, I must consider whether the appeal should remain with the Upper Tribunal for re-making, or whether the appeal should be remitted to the First-tier Tribunal. I have regard to paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers and the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512, [2023] 4 WLR 12, and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), [2023] Imm AR 558.
22. The error of law concerns the application of the wrong legal test to the appellant’s case, which has resulted in a procedurally unfair hearing before the First-tier Tribunal. This unfairness is wholly dispositive of the issues in the appeal, such that it will be necessary for the case to be considered afresh with no preserved findings of fact. There will need to be extensive fact-finding at the hearing. The respondent will also need to consider whether to rely upon the full eligibility interview transcript, which has hitherto not been included in a bundle before either the First-tier Tribunal or the Upper Tribunal. In the circumstances, the most appropriate course is to remit this matter to the First-tier Tribunal.
Notice of Decision
23. The making of the decision of the First-tier Tribunal involved a material error on a point of law. The appeal is accordingly allowed to that extent, and the First-tier Tribunal Judge’s decision is set aside.
24. The remaking of this appeal will be undertaken by the First-tier Tribunal to he heard at Taylor House and to be listed before any judge, save Judge Degirmenci.

Signed Date: 7 July 2025
Kathryn Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber