Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-001994

First-tier Tribunal No: EA/03926/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

MATTHEW ERYAM FIAWOO
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House and via Teams on 3 July 2025

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Bonavero, promulgated on 14 February 2025 (“the Decision”). By the Decision, Judge Bonavero dismissed the appellant’s appeal against the decision of the respondent made on 4 December 2023 to refuse his application for a grant of settled status under the EU Settlement Scheme (EUSS) as a person with a retained right of residence.

Relevant Background
2. The appellant is a national of Ghana, whose date of birth is 8 March 1980. On 21 December 2010 the appellant applied for an EEA residence card as confirmation of his right to reside in the UK as the spouse of an EEA national, Ms Enyoram Michele Anani (“the sponsor”). The sponsor was a national of Togo by birth, but she had subsequently acquired German citizenship. The application was successful, and on 1 March 2011 the appellant was issued with an EEA residence card as the spouse of his EEA national sponsor.
3. On 30 October 2013 the respondent decided to revoke the appellant’s EEA residence card after receiving evidence from an immigration firm acting for the sponsor. In a letter dated 15 February 2013 her representatives informed the respondent that the sponsor’s marriage to the appellant had been dissolved, and that the original divorce certificate was attached for ease of reference.
4. The appellant appealed against the decision to revoke his EEA residence card, and his appeal came before First-tier Tribunal Judge Walker on 25 June 2014. The appellant did not attend and was not represented. The reason for this was that he was in prison on remand at the time in relation to charges of which he was eventually acquitted.
5. In a decision promulgated on 30 June 2014, Judge Walker noted that within the respondent’s bundle there was a Statutory Declaration from the parents of the appellant and the sponsor dated 18 December 2012. They affirmed that the appellant and the sponsor had entered into a customary marriage on 25 December 2009 and that their marriage was dissolved in customary fashion by the families on both sides on 10 December 2012.
6. In the light of this evidence, Judge Walker found that on the balance of probabilities the appellant’s marriage had been dissolved and that there was no evidence at all from the appellant to show that the marriage was still subsisting. In the circumstances, he held that the respondent was entitled to revoke the appellant’s EEA residence card.
7. The appellant remained in the UK, and on 31 August 2023 he made an application for a grant of settled status under the EUSS. In support of the application, the appellant relied on a Decree Nisi and a Decree Absolute issued by the Family Court in Birmingham.
8. In the Decree Nisi dated 12 January 2021, District Judge Singh held that the applicant and the respondent had lived apart for a continuous period of at least two years immediately preceding the presentation of the application, and the respondent consented to the decree being granted. The Judge further held that the Ghanaian marriage which was solemnised on 25 December 2009 had broken down irretrievably.
9. In the Decree Absolute dated 25 February 2021, the Family Court certified that the marriage solemnised on 25 December 2009 had legally ended.
10. In the reasons for refusal letter (RFRL), the respondent said that the appellant had not provided sufficient evidence that before he or the relevant EEA citizen had begun proceedings to terminate the marriage, it had lasted for at least 3 years. This was because the “Ghanaian Decree Absolute” (sic) previously submitted was dated 18 December 2012, which was only 2 years 11 months and 24 days after the date of his marriage on 25 December 2009, as proven by his Ghanaian marriage certificate. The Decree Absolute dated 25 February 2021 was noted. However, this could not be accepted as the date of termination of the marriage due to the prior submission of the Ghanaian Decree Absolute dated 18 December 2012. This was the date when the marriage to his EEA sponsor was terminated and the appellant ceased to be the family member of a relevant EEA citizen. Therefore, the appellant did not meet the requirements for settled status as a former family member of a relevant EEA citizen who had retained a right of residence.
11. The appellant filed a bundle of evidence running to over 500 pages in support of his appeal to the First-tier Tribunal. Included in the bundle was a statement dated 10 May 2024 endorsed with a Statement of Truth from the sponsor, who styled herself as Mrs Enyoram Michele Anani Faiwoo. She said that the appellant was her spouse, and that he was currently caring for her son in the United Kingdom while she worked in Dublin. She had provided proof that she had resided with the appellant from at least 2003. They got married on 16 March 2003 under the church tradition in Togo, and then they had got married under customary tradition in 2009. They had separated in 2015 and reconciled in 2016. In 2020 she had finally divorced him, but they had reconciled again in January 2021. So, they were still together.
12. At a late stage in the proceedings, the appellant introduced a claim that the Ghanaian “divorce certificate” was forged, and that the customary marriage which he had contracted with the sponsor in Ghana had not been genuinely dissolved. In support of this claim, he produced a death certificate for his father which he said showed that his father was not alive at the time when he had purportedly affirmed the dissolution of the customary marriage in 2012.
The Hearing Before, and the Decision of, the First-Tier Tribunal
13. The appellant’s appeal came before Judge Bonavero sitting at Hatton Cross on 5 February 2025. Both parties were legally represented, with Mr Khalid of Counsel appearing on behalf of the appellant.
14. In the Decision at para [10] the Judge recorded that at the outset of the hearing the parties had helpfully narrowed the issues significantly. They agreed that the only issue for him to determine was whether, for the purposes of the EUSS, the appellant’s marriage came to an end in 2012 as a consequence of “the Ghanaian proceedings” (sic), or whether instead it continued until the date of the English Decree Absolute. It was common ground that the outcome of the appeal turned on that question: If the former was right, then the appeal must fail; If it was the latter, it must succeed.
15. As is recorded at para [11] of the Decision, the appellant gave evidence with the help of a Ghanaian Interpreter, and the Judge then heard closing submissions.
16. The Judge’s findings began at para [12]. At paras [13] to [19] the Judge gave his reasons for the conclusion which he reached at para [20] as follows:
“Drawing the threads together, I am content that the Ghanaian document is more likely than not to be reliable. In those circumstances, it was effective as a matter of Ghanaian law, as set out by the Upper Tribunal in NA (Customary marriage and divorce - evidence) Ghana [2009] UKAIT 00009…”
17. At paras [21] to [23] the Judge addressed the case put forward by Mr Khalid, that even if the Ghanaian married parties were rightly to be treated as being validly divorced under Ghanaian law, the customary divorce had no effect in England on the status of the parties to it, as by English law they remained married until a Decree Absolute was issued by an English Family Court, applying the Family Law Act 1986 and the judgment of Cobb J in Botwe -v- Brifa [2021] EWHC 237.
18. At para [22] the Judge observed that in Botwe -v- Brifa Cobb J was faced with a similar factual pattern as arose here. One of the parties had obtained a customary divorce certificate similar to the one in issue in this appeal, whilst living in the UK. Cobb J found that the parties’ marriage had thereby come to an end as a matter of Ghanaian law. However, the marriage had come to an end there “otherwise than by means of proceedings”, and therefore by operation of section 46(2) of the Family Law Act 1986 the termination of the marriage in Ghana could not be recognised in the UK, given that at least one of the parties was habitually resident in the UK at the time of divorce. The Judge continued:
23. I am satisfied that I should follow Cobb J’s reasoning as to the recognition of the customary divorce in this appeal. I therefore conclude too that until the English Decree Absolute, the parties were in a ‘limping marriage’: like Schrodinger’s cat, it was both alive and dead. But which of those two states is the relevant one for the assessment of the appellant’s rights under the EU Settlement Scheme?
24. Appendix EU defines the relevant event for a family member with a retained right of residence as the “termination of the marriage or civil partnership”. I have concluded the right approach is to focus on the moment when the appellant’s marriage ended as a matter of Ghanaian law. The appellant accrued his right to reside in the UK as a result of his Ghanaian marriage - and so, it seems to be logical that the termination of this marriage as a matter of Ghanaian law should be the determinative question in resolving his status under Appendix EU.
19. At para [25] the Judge said that he was fortified in this conclusion by the unsatisfactory nature of the evidence relating to the English divorce proceedings. The Decree Nisi described the appellant as having been living apart from his wife for 2 years, whereas the appellant said in evidence that he had lived with his wife until the date of their divorce; and, importantly, there was no evidence of her involvement in the English divorce proceedings.
20. At para [26] the Judge held that his task in these proceedings was not to consider whether the Ghanaian divorce certificate should be recognised under the terms of the Family Law Act 1986. Instead, it was to determine, as a matter of fact, whether the appellant’s marriage was terminated by the Ghanaian divorce. In the specific circumstances of this case, he was satisfied that the marriage did indeed end at that point.
The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
21. On 2 April 2025, First-tier Tribunal Judge Bibi granted the appellant permission to appeal to the Upper Tribunal for the following reasons:
2. The appellant’s grounds were not clearly structured. However, they assert in summary that the Judge materially erred in his finding and has provided inadequate and/or confused reasonings as to the conclusions reached. The grounds further assert that this has been further exacerbated by an uncertain approach to some of the terminology used in the decision. The Judge has not considered the church marriage certificate pre-dating 2009, the death certificate of the appellant’s father who died on 12 March 2012, [and] the retained rights of the appellant.
3. There is arguably an error of law that has been identified which merits further consideration. There is a reasonable prospect that a different tribunal would reach a different decision.
The Hearing in the Upper Tribunal
22. The hearing before us was a hybrid one, with the appellant appearing in person with a McKenzie friend, and the Ghanaian Interpreter attending remotely via Teams. We raised with Mr Walker the fact that it was our preliminary view that, having found that the termination in Ghana of the customary marriage could not be recognised in the UK, as the relevant statutory requirements for recognition were not met, it was not open to the Judge to find that nonetheless the appellant’s marriage was terminated by the Ghanaian divorce, rather than by the Decree Absolute issued by the English Family Court in 2021.
23. Mr Walker agreed that the Judge’s conclusion on the narrow issue that he was asked to decide was untenable, and we adjourned the hearing for 15 minutes so that he could further consider the respondent’s position.
24. On the resumption of the hearing, Mr Walker said that the respondent had a concern about para [10] of the Decision, which narrowed the focus of the factual enquiry at the appeal hearing to the narrow issue stated therein, with the consequence that the First-tier Tribunal had not considered the conflicting evidence of the appellant being already married to the EEA sponsor before the Ghanaian customary marriage in 2009. However, he acknowledged that there had been no cross-appeal by the respondent, and therefore, in the circumstances, he accepted that the findings made by the Judge on the agreed issue logically impelled that the decision under appeal should be remade in the appellant’s favour.
Discussion and Conclusions
25. We bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; 2004 1 WLR 1953. His guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…”
26. We also take into account the guidance given by the Court of Appeal in Volpi and another v Volpi [2022] EWCA Civ 464 at para [2]:

“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for the judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
29. We consider that, for the most part, the appellant’s grounds of appeal are misconceived. Although it appears that his original case on appeal was that he qualified for a grant of status under the EUSS as the close family member of a relevant EEA citizen, as he was still married to the sponsor pursuant to a church marriage in Togo in 2003, at quite a late stage of the proceedings the appellant changed tack to rely upon an alternative case, which was that the Statutory Declaration (referred to be the Judge as “the Ghanaian document”) that was considered in the 2014 appeal was a forgery.
30. The appellant was represented by Counsel at the hearing in the First-tier Tribunal, and with the agreement of his Counsel the Judge was only asked to decide the narrow issue set out in para [10] of the Decision.
31. Accordingly, the Judge did not err in law in not addressing the evidence which went to an alternative case which was in effect abandoned.
32. As to the narrow issue, we consider that there was and remains some confusion as to whether the only evidence of the dissolution was the Statutory Declaration dated 18 December 2012 referenced in the 2014 appeal or whether the divorce had also been registered so as to generate a divorce certificate which is referred to in the RFRL as “the Ghanaian Decree Absolute”.
33. On balance, we consider it is likely that what is referred to by the Judge as the Ghanaian document is the Statutory Declaration referenced in the 2014 appeal. We consider that the Judge gave adequate reasons for finding that this document was reliable, and that he also gave adequate reasons for rejecting the appellant’s case that it was a forgery. The Judge had justifiable concerns about the appellant’s general credibility, and it was clearly open to him to find that he had not shown that the death certificate which he put forward as demonstrating that his father had died before December 2012 was a document on which reliance could be placed
34. However, we are satisfied that the Judge was clearly wrong to resolve the narrow issue which he was asked to decide in the way that he did. Having found that the dissolution of marriage by tribal custom in 2012 could not be recognised in English law, as the relevant statutory requirements were not met, the Judge was clearly wrong to go on to direct himself at para [24] that for the purposes of deciding whether the appellant had a retained right of residence under Appendix EU, he should focus on the moment when the appellant’s marriage ended as a matter of Ghanaian law.
35. The clear flaw in the Judge’s line of reasoning was that, while it was true that the appellant had accrued his right to reside in the United Kingdom as a result of his Ghanaian customary marriage, this was only because his Ghanaian customary marriage was recognised in English law, as well as being recognised under Ghanaian law. Conversely, as he had rightly found, the dissolution of the customary marriage was not recognised in English law. Accordingly, the Judge’s reasoning was based on a false syllogism.
36. In fact, logic dictates the opposite of what the Judge concluded. As the appellant accrued his right to reside in the UK as the spouse of an EEA national because his customary marriage was recognised in English law, it follows that the termination of the marriage as a matter of English law should be the determinative question in resolving his status under the EUSS.
37. The Judge’s reasoning was also contrary to the express recognition in Botwe v Brifa that the issue in dispute had direct ramifications for the applicant’s immigration status.
38. Ms Botwe (“the wife”) sought a declaration that she was currently married to Mr Brifa (“the husband”) pursuant to the provisions of sections 51 and 55 of the Family Law Act 1986.
39. At the outset of his judgment, Cobb J said at para [1] as follows:
“The recognition, or non-recognition, of divorce affects the parties’ status; this in turn can affect matters as diverse as nationality, immigration status, and the freedom to marry. These considerations lie behind an application dated 8 December 2020 made by Ms Joanna Botwe …”
40. The parties in that case agreed that they had married on 4 March 2017 in Accra, Ghana, in accordance with tribal custom. The issue was whether the parties had been divorced by similar tribunal custom in Ghana on 25 August 2019; and if so, should the English court recognise the same.
41. The wife’s case was that her husband was seeking to exploit her vulnerable immigration status. She said he had concocted a divorce to frustrate her ability to remain in the UK. Although this is not spelt out in the judgment, if the Ghanaian divorce on 25 August 2019 was treated as determinative, her marriage would have lasted less than three years, so she would not be able to claim a retained right of residence under the EEA Regulations 2016 or under the EUSS.
42. Cobb J concluded as follows at para [65]:
“It follows from all I have said that I am satisfied, or so declare, that the parties were effectively divorced in Ghana and according to the customs of that country on 25 August 2019. However, as they have both been habitually resident in the UK in the 12 months prior to 25 August 2019, it is further declared that the English Court will not recognise that divorce. Accordingly, while in Ghana the parties will be treated as divorced, the customary divorce will have no effect in England on the status of the parties to it; by English Law they remain married.”
43. As a consequence of this finding, Cobb J ruled at para [67] that the outcome of the application was that the wife was entitled to pursue her petition for divorce in this jurisdiction.
44. The Judge was thus wrong to treat the judgment in Botwe v Brifa as not applying with equal force to the case before him. The purpose of Ms Botwe’s application was to obtain an immigration advantage that would be denied to her if her marriage was treated as having been terminated in Ghana on 25 August 2019. She needed to have a declaration that the Ghanaian divorce was not recognised in English law in order to establish that she was still married and that her marriage would only be lawfully terminated for the purposes of the EEA Regulations 2016 and/or the EUSS when she had obtained a Decree Absolute in the UK.
45. The Judge was also wrong to hold that he was fortified in his conclusion by the unsatisfactory nature of the evidence relating to the English divorce proceedings. As he accepted that the Decree Absolute validly terminated the marriage under English law, the dubious basis upon which it had been obtained was irrelevant. It would only be relevant if its effect was to render the Decree Absolute null and void.
46. The respondent’s case was that the Decree Absolute was redundant, not that it was invalid. It does not appear that the Presenting Officer submitted that the Decree Absolute was rendered invalid by the appellant’s admission in oral evidence that he had not been living apart from his wife for two years prior to the divorce petition, and there is no cross-appeal from the respondent to the effect that the Judge erred in law in not making such a finding of his own motion.
47. For the above reasons, a material error of law is made out such that the Decision must be set aside and remade.
48. For this purpose, the factual substratum on which the Judge based his erroneous conclusion is preserved.
49. The guidance given in NA (Customary marriage and divorce - evidence) Ghana [2009] UKAIT 00009 remains good law for the purposes of determining whether a customary marriage has been validly terminated under Ghanaian law. However, for a customary marriage to be validly terminated under English law, whether it is a customary marriage contracted in Ghana or elsewhere, the requirements of the Family Law Act 1986 (“the 1986 Act”) must be satisfied.
50. Section 45 of the 1986 Act reads:
Recognition in the United Kingdom of overseas divorces, annulments and legal separations.
(1) Subject to […] sections 51 and 52 of this Act, the validity of a divorce, annulment or legal separation obtained in a country outside the British Islands (in this Part referred to as an overseas divorce, annulment or legal separation) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition-
(a) by virtue of sections 46 to 49 of this Act, or
(b) by virtue of any enactment other than this Part.
51. Section 46 of the 1986 Act reads:
Grounds for recognition
(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if-
(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and
(b) at the relevant date either party to the marriage-
(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or
(ii) was domiciled in that country; or
(iii) was a national of that country.
(2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if-
(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;
(b) at the relevant date-
(i) each party to the marriage was domiciled in that country; or
(ii) either party to the marriage was domiciled in that country and the other party to the marriage was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and
(iii) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.
(3) In this section “the relevant date” means-
(a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of commencement of proceedings;
(b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained.
52. Section 51(3)(b) of the 1986 Act provides that recognition of the validity of an overseas divorce, annulment or legal separation may be refused if, in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings-
(i) there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; or
(ii) where either party was domiciled in another country at the relevant date, there is no official document certifying that the divorce, annulment or legal separation is recognised as valid under the law of that country; or
(iii) in either case, recognition of the divorce, annulment or legal separation would be manifestly contrary to public policy.
53. Thus, under the first alternative. the overseas divorce must have been obtained by proceedings. The registration of the dissolution of a Ghanaian customary marriage by tribal custom does not meet this requirement as registration is merely ancillary to such a divorce, which is obtained by the performance of customary rites: see Botwe v Brifa at [49]-[53].
54. Under the second alternative, where the overseas divorce has not been obtained by proceedings, it will not be recognised as valid in the United Kingdom if either party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding the date of divorce.
55. Judge Bonavero rightly proceeded on the premise that the Ghanaian divorce was not obtained by proceedings, as this was not the respondent’s case and it is also not what the evidence relied on by the respondent showed. The respondent’s case was that the dissolution of the marriage was obtained by the performance of customary rites, as evidenced by the Statutory Declaration.
56. So, to be valid in the United Kingdom, the relevant requirements of the second alternative must be satisfied.
57. Both the appellant and the sponsor were habitually resident in the United Kingdom throughout the period of one year immediately preceding their divorce by tribal custom in Ghana on 10 December 2012. Therefore, their divorce in Ghana does not qualify for recognition in the United Kingdom by virtue of section 46(2)(b) (iii) of the 1986 Act.
58. We observe that there are two potential additional grounds for non-recognition of the Ghanaian divorce. The first is that neither party to the marriage was domiciled in Ghana at the date when the divorce was obtained, as required by section 46(2)(b)(ii) of the 1986 Act. The sponsor’s only apparent connection to Ghana is through the appellant, and there is no indication that Ghana was ever a country in which she has been domiciled. As for the appellant, although Ghana is his domicile of origin, he claims to have been residing continuously in the United Kingdom since at least 2003, and so it is unclear that Ghana was still his domicile in December 2012. The second additional ground for refusal of recognition is that there appears to be no official document certifying that the divorce in Ghana was or is recognised as valid under the law of the country in which the sponsor was domiciled at the date of divorce, as required by Section 51(3)(b)(ii) of the 1986 Act.
59. It is not necessary for us to make findings on these matters, about which we have heard no argument, as even if the Ghanaian divorce satisfied all the relevant domicile requirements, the overarching requirement for recognition contained in Section 46(2)(b)(iii) of the 1986 Act is plainly not satisfied, and it is thereby clearly established that in this jurisdiction the Ghanaian customary marriage was not validly terminated until the Family Court in the United Kingdom issued a Decree Absolute in February 2021.
60. It follows that, in line with what was agreed between the parties before the First-tier Tribunal (see [14] above), and the respondent’s acknowledgement of that before us (see [24] above), the appellant qualifies for a grant of settled status under the EUSS, and his appeal is allowed.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside and the following decision is substituted:
The appellant’s appeal against the refusal of a grant of settled status under the EU Settlement Scheme is allowed.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
4 August 2025