Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001972

First-tier Tribunal No: HU/64153/2023
IA/00184/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE CONNAL

Between

MINGXIANG XIE
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Forrest, Advocate, instructed by Chung Solicitors
For the Respondent: Ms Blackburn, Senior Home Office Presenting Officer

Heard at Edinburgh on 10 September 2025

“ERROR OF LAW” DECISION AND REASONS
General background
1. The appellant appeals with permission against the decision of the First-tier Tribunal dated 18 February 2025 (the FTT Decision), following a hearing which took place at the Glasgow Tribunals Centre on 28 January 2025. In the FTT Decision, the First-tier Tribunal Judge (the Judge) dismissed the appellant’s appeal against the respondent’s refusal of his application for leave to remain in the United Kingdom on the basis of his family life.
Anonymity
2. No anonymity direction was made previously, and there is no reason for one now.
Brief factual background
3. The appellant is a national of China. He entered the UK illegally on 26 October 2016 and claimed asylum on that date. The appellant’s claim was refused on 25 April 2017, and the appellant’s appeal against that decision was dismissed on 7 September 2017, with the appellant becoming appeal rights exhausted on 21 September 2017.
4. On 17 November 2023, the appellant applied for leave to remain in the UK on the basis of his family life with his claimed partner, Ms Tong Zhang (the sponsor). The appellant claimed that he had met the sponsor in March 2019, their relationship had begun in October 2019, and they had started cohabiting in May 2020. At the time of the appellant’s application, the sponsor had refugee status in the UK, and, by the time of the First-tier Tribunal hearing, she had British citizenship.
5. The reasons for the respondent’s refusal of the appellant’s application and human rights claim are set out in a letter dated 23 November 2023. Among other matters:
a. The Respondent found that the appellant did not meet all of the eligibility requirements of Section E-LTRP of Appendix FM to the Immigration Rules. The respondent found that the sponsor did not meet the definition of partner under GEN.1.2, in particular as the appellant had not provided evidence that he and the sponsor had been living together in a relationship akin to marriage or civil partnership for at least two years prior to the date of application. As such the respondent found that the appellant did not meet: E-LTRP.1.2; E-LTRP.2.2(b) (as the appellant was in the UK in breach of immigration laws and EX.1 was found not to apply); and E-LTRP.3.1 and E-LTRP.3.3 (again, with EX.1 being found not to apply). In considering whether EX.1 applied, the respondent did not accept that the appellant’s relationship with the sponsor was genuine and subsisting because, as the sponsor did not meet the definition of partner under GEN.1.2, the appellant did not meet E-LTRP.1.2 and therefore failed to meet E-LTRP.1.7 and the requirements of EX.1(b).
b. The respondent also found that the appellant did not meet the requirements of Appendix Private Life, in particular PL 3.1, PL 4.1 and PL 5.1.
c. The respondent found that there were no exceptional circumstances which would render refusal a breach of Article 8 of the European Convention on Human Rights (Article 8) because it would result in unjustifiably harsh consequences for the appellant or his family.
6. The respondent subsequently reviewed the matter in a review dated 24 May 2024 but maintained her decision.
The FTT Decision
7. At the First-tier Tribunal hearing, both parties were represented, and the Judge heard oral evidence from the appellant, the sponsor and two witnesses, before hearing submissions from the representatives ([5]) (references in square brackets below are to paragraphs in the FTT Decision unless otherwise stated).
8. In the FTT Decision, the Judge provided a brief summary of the background to the appeal (including recording that the sponsor by that time had British citizenship), before setting out the issues in dispute and applicable legal framework. The Judge then proceeded to find that the appellant did not meet the requirements of Appendix FM to the Immigration Rules, in particular as the sponsor did not meet the applicable definition of a partner, before going on to find that the public interest in refusing leave to remain outweighed any interference with the family life in the UK of the appellant and the sponsor.
9. For ease of review of this decision, I note here that, in relation to the issue of the appellant and the sponsor’s claimed relationship and cohabitation in the period 17 November 2021 to 17 November 2023, the Judge’s findings included, among other matters, that: the sponsor had lived at the claimed joint address (the address) from at least June 2021 ([9]); the appellant and the sponsor had cohabited at the address since early 2023 ([9]); but it had not been demonstrated that they had been cohabiting for at least two years prior to the application and so the sponsor did not meet the definition of partner ([11]); the appellant and sponsor were in a relationship and were (now) cohabiting as if they were a married couple ([16]); and there was family life between them for the purposes of Article 8 ([16]).
The appeal to the Upper Tribunal
10. The grounds on which permission to appeal was sought can be summarised briefly as follows:
a. Ground 1 – At [11]-[12] of the FTT Decision, the Judge erred in law by requiring documentary corroboration in order to demonstrate cohabitation. Separately, the Judge erred by adopting the wrong approach to the evidence before her, in particular to the photographic and witness evidence.
b. Ground 2 – At [16]-[18] of the FTT Decision, the Judge erred in law in failing to have regard to all relevant considerations. Separately, the Judge made findings that no reasonable Judge would have made.
11. Permission to appeal was granted by the First-tier Tribunal on both grounds.
12. The Respondent filed a Rule 24 response dated 15 May 2025, in which both grounds of appeal were opposed.
The error of law hearing
13. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
14. The hearing was attended by representatives for both parties. A bundle was submitted by the appellant’s representatives containing, among other documents, the core documents and bundles before the First-tier Tribunal, the FTT Decision, the grounds of appeal (the Grounds), and the Rule 24 response.
15. At the outset of the hearing, the appellant’s representative confirmed that the appellant no longer relied on Ground 2. Brief submissions were therefore heard from both parties on Ground 1 (among other matters, the respondent’s representative confirmed that the Rule 24 response was relied on, save for paragraph 8).
16. At the end of the hearing, the decision on error of law was reserved, and is now given below, with reasons.
Error of law: Discussion and Findings
17. I turn first to the primary submission made in Ground 1. The issue here is a narrow one. It is well-established that the First-tier Tribunal is required to consider all the evidence relied on by an appellant, and to assess such evidence in the round. It is also well-established that where evidence to support an account given by an appellant is or should readily be available, a Judge is entitled to take into account the failure to provide that evidence and any explanations for that failure (TK (Burundi) v SSHD [2009] EWCA Civ 40 (TK Burundi), in particular at [16], as well as at [20]-[21]). The issue here is whether the Judge went further than this and required documentary corroboration to establish cohabitation; the parties were in agreement that if the Judge had done so, then this would disclose a material error of law.
18. It is important that a Judge’s findings are read as a whole. In light of the focus on particular phrasing used by the Judge, it is helpful to set out [9]-[12] in full (I have chosen to anonymise the address as the specific location is not relevant to this decision):
9. There is sufficient evidence before me to confirm that the sponsor lived at this address from at least June 2021 (see the letter to her from SP Energy network dated 4 June 2021). The question I must consider is whether the appellant and sponsor have lived there as if married or in a civil partnership from at least 17 November 2021 until 17 November 2023. I am content that there is adequate evidence to confirm that the appellant and sponsor have cohabited at [TP] since early 2023. This is demonstrated by the following evidence which specifies the appellant’s address as [TP];
▪ the electricity related letters dated 13 February 2023 and 20 September 2023, electricity bill dated 5 November 2023 as well as the council letter dated 21 November 2023, all of which are in the joint names of the appellant and sponsor;
▪ the TV licence bill in the appellant’s name dated 12 May 2023;
▪ the bank statements in the appellant’s name at this address for the period from July 2023;
▪ letters to the appellant from the National Health Service dated 17 July 2023, 29 March 2023, 22 March 2023;
▪ letters from the appellant’s dentist dated 29 August 2023 and 13 June 2023.
10. There is, however, less evidence to substantiate cohabitation between the appellant and sponsor during 2022 and the later part of 2021. I accept that the appellant General Practitioner (GP) notes indicate that he made an application to register with his current GP practice on 21 February 2022 providing his address as [TP] and that correspondence of 22 November 2022 from his surgery pertaining to a chest X-ray also specifies that address. No bank statements, utility bills or council bills in the appellant’s name with his address as [TP] have, however, been submitted for 2021 or 2022. When I asked him why at hearing, the appellant indicated that it was because his partner did not go to work during the pandemic. I do not consider that to be a reasonable explanation for his failure to submit this evidence.
11. In considering whether the appellant has cohabited with the appellant for two years prior to the date of his application, I place no weight on the photographic evidence that has been submitted which purports to show the appellant and sponsor together in the years from 2020 as the authenticity of the photographs and the dates on which they were taken cannot be verified. I acknowledge that the witnesses in this case indicate that the sponsor and appellant have lived together since May 2020. Both witnesses report, however, to be good friends of the sponsor and the assertion they have made regarding the length of time the appellant and sponsor have lived together is not supported by documentary evidence. I, therefore, place little weight their assertion. To my mind, the absence of documentary evidence in the form of bank statements or utility bills for the period from November 2021 and during 2022 is critical to the credibility of the appellant’s claim to have been cohabiting with the sponsor for at least two years prior to his application. I find that the sponsor did not, therefore, at the date of the application, satisfy the definition of partner in paragraph GEN.1.2 of Appendix FM. It follows that the sponsor was not a partner for the purpose of paragraph L-TRP 1.1 (c) (ii) of Appendix FM at that date.
12. Given exchanges on the matter between the parties during the hearing, I should highlight that I place no weight on the absence of a submitted tenancy agreement in this case. As Mr Chung acknowledged, this agreement is in the sponsor’s sole name as the appellant’s precarious immigration status prevented him from becoming a part to that agreement. I should also clarify that I have not taken into account the inconsistency in the evidence highlighted at hearing regarding how the appellant and sponsor initially met. This was adequately explained during re-examination; I am satisfied that they met in a restaurant while the sponsor was working and subsequently spent time gaming online together. I must also point out that, even if I accepted the appellant’s application to register with his current GP practice on 21 February 2022 as evidence of cohabitation on that date, I find that he has not demonstrated evidence of cohabitation from November 2021 to February 2022 as is required. There is no documentation to substantiate his claim that he was living with the appellant during that period. The receipts and invoices that he has submitted relate to an earlier period in 2021 (June and July of 2021). I consider these invoices to be evidence that the appellant had items delivered to the sponsor’s address at that time but do not accept them as proof of his residence there.
19. I have carefully considered what is set out by the Judge, including the particular sections referred to in the Grounds including the description of the absence of certain documentary evidence as being “critical” to the credibility of the appellant’s claim. I am satisfied for the reasons set out below that there was no error of law in the Judge’s approach.
20. In TK (Burundi), Lord Justice Thomas found that, “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” (at [21]). On reading the relevant section of the FTT Decision as a whole, it is adequately clear that this is precisely the approach the Judge adopted.
21. This is not a case where the Judge simply recorded the absence of documentary evidence supporting the claim and rejected the account on that basis. Rather, the Judge conducted a careful and detailed assessment of all of the evidence relied on by the appellant. In doing so, the Judge was entitled to take into consideration that, while there was documentary evidence to support cohabitation from early 2023, there was little to support the earlier required period, and that the type of documentary evidence supplied for the later period (including utility bills, a council letter and bank statements) had not been supplied for the earlier period. The Judge properly considered the appellant’s explanation for the lack of such documentary evidence, and was entitled to find that a reasonable explanation had not been provided. Having done so, the Judge was entitled to place significant weight on the absence of such documentary evidence, when assessing the evidence as a whole for the reasons the Judge set out. I do not consider that, when the relevant passages are read as a whole, it is the case that the Judge went any further than this and required documentary corroboration, and I find that there is no error of law in this regard.
22. Further, I do not consider that there was any error of law, or any material error of law, in the Judge’s approach to the witness or photographic evidence before her. In relation to the witness evidence, contrary to that stated in the grounds it is not the case that the Judge attributed “no weight to that evidence whatsoever”. Rather, the Judge provided adequate reasons for placing little weight on the evidence of the witnesses, including that, as is acknowledged in the Grounds, the witnesses were good friends of the sponsor and so not truly independent, and also that their evidence was not supported by documentary evidence. There was no error of law in such an approach. In relation to the photographic evidence, the Judge placed no weight on the photographs on the basis that the authenticity of the photographs and the dates on which they were taken could not be verified. However, even if the Judge was wrong to place no weight on such evidence, as opposed to, for example, little weight, the photographs cannot of themselves establish cohabitation (as acknowledged in the Grounds). Even taken at their highest, the photographs would, I find, only be consistent with the appellant and sponsor having been in some form of relationship at the times recorded rather than necessarily cohabiting and, when considered in the context of the evidence as a whole, any error that there was in this regard, would not be a material one.
Notice of Decision
1. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law.
2. The decision of the First-tier Tribunal shall stand.

L.C. Connal

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
19 January 2026