Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002047

First-tier Tribunal No: HU/62750/2023
LH/04649/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SILLS

Between

BARISI IRENE YOBO
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmed
For the Respondent: Mr Wain

Heard at Field House on 4 July 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals against the decision of the FTT Judge dated 20 March 2025 dismissing her appeal on human rights grounds.
Factual Background
2. The Appellant is a Nigerian national aged 45. She entered the UK as a visitor in May 2021. The purpose of her visit was to visit her sister, who had been diagnosed with breast cancer. Her sister sadly passed away on the day of her arrival. The Appellant remained with her sister’s widower, Mr Nigel Amakiri Jama, and their son, now aged 19. The Appellant and Mr Jama state they subsequently decided to follow a common tradition whereby a sister marries the husband of a sister who passes away. They state this relationship was formalised on 3 October 2021 and the Appellant has remained living with Mr Jama and his son since then. The Appellant applied to extend her leave to remain in September 2021. This was refused in July 2023. She made a further application on 1 September 2023 for leave to remain. This was refused on 23 October 2023. The Appellant appealed.
3. In the decision of 20 March 2025, the FTT Judge made the following findings. The Respondent’s decision was correct to find that the Appellant could not satisfy the definition of partner under the Rules. The Judge accepted that the Appellant and Mr Jama were in a genuine and subsisting relationship and noted that they had by now been in a relationship for over two years. The Appellant could not meet the requirements of the Rules because she was in the UK unlawfully. Considering the appeal outside the Rules, the FTT Judge referred to the provisions of s117B of the Nationality, Immigration and Asylum Act 2002. The FTT Judge accepted that there would be some degree of harshness in the Appellant’s removal, as she would be separated from her partner and his son. The FTT Judge noted the Appellant’s high level of education and good employment history. Mr Jama could fund a property for the Appellant while she applied for entry clearance. The decision was proportionate. Hence the appeal was dismissed.
4. The Appellant applied for permission to appeal relying on 3 grounds. First, the FTT Judge had erred in failing to consider the Appellant’s case under Immigration Rule EX1. The Judge had also erred in finding that the Appellant’s immigration status alone precluded her from meeting the Rules.
5. Second, the FTT Judge erred in considering the evidence concerning Mr Jama’s financial circumstances. While the Judge stated that there was no coherent evidence on this, the Judge failed to consider the evidence that had been submitted. The evidence showed that the Appellant would be adequately maintained without recourse to public funds.
6. Third, the Judge erred in stating that no evidence had been presented as to why it would be unduly harsh for the Appellant to be separated from Mr Jama and his son. The Judge failed to have regard to their evidence.
7. Permission was granted on 7 May 2025 by the FTT. That decision stated that it was arguable that the FTT Judge had erred by not considering whether EX1 was met.
The Hearing
8. At the hearing, Mr Wain confirmed that the Respondent opposed the appeal. I heard submissions from the representatives. I reserved my decision.
Findings
9. I deal with the grounds in turn as set out above.
Ground 1
10. In relation to the first ground, there is a certain amount of ambiguity and possibly confusion in relation to the FTT Judge’ consideration of the Appellant’s case under the Immigration Rules. At [23] the Judge records that the Respondent had correctly found that the Appellant could not meet the definition of partner, but at [25] goes on to find that the Appellant did meet the definition of partner. Further, paragraphs 26 and 27 are also problematic. Mr Ahmed, who appeared before the FTT, was clear that despite what the decision states, he did argue that the Appellant satisfied EX1. The Appellant’s request for the recording of the hearing has unfortunately not been dealt with by the FTT. It is not correct to state, as the FTT Judge did, that the Appellant could not meet the Immigration Rules simply on account of her being in the UK unlawfully.
11. Despite these issues with the decision, on closer consideration of the relevant legal provisions, Mr Ahmed accepted before me that the FTT Judge did not err in law in failing to consider EX1. This is because of the specific wording of the partner definition under Appendix FM, which states as follows:
‘GEN.1.2. For the purposes of this Appendix “partner” means the applicant’s-
(i) spouse; or
(ii) civil partner; or
(iii) fiancé(e) or proposed civil partner; or
(iv) unmarried partner, where the couple have been in a relationship similar to marriage or civil partnership for at least 2 years before the date of application.’
12. As set out at Gen 1.2(iv), the definition of unmarried partner requires the couple to have been in a relationship similar to marriage for at least two years before the date of application. Hence the fact that the relationship had lasted over two years by the date of the appeal was irrelevant for the purposes of the Rules, because on the Appellant’s account the relationship began on 3 October 2021, and the application was made on 1 September 2023, less than two years later. Hence the Appellant cannot meet the unmarried partner definition.
13. When this provision was raised with Mr Ahmed at the hearing, he properly and rightly accepted that the Appellant could not in fact satisfy the Rules of Appendix FM, and so there was no error in failing to consider EX1. As the Appellant cannot meet the definition of partner as the relationship has not lasted at least 2 years by the date of the application, the Judge did not err in law in failing to consider whether the Appellant could satisfy EX1.
Ground 2
14. Once again, the FTT Judge’s approach to the financial evidence can be criticised. The FTT Judge is factually incorrect to state at [20] that the only documentary evidence about Mr Jama’s finances was at p8 of the supplementary bundle. There was further documentary evidence at pp 61 to 86 of the Respondent’s bundle. Furthermore, the FTT Judge makes no findings about whether the Appellant is financially independent. However, I agree with Mr Wain, that any error in relation to this issue is immaterial. As per Rhuppiah v SSHD [2018] UKSC 58 at [57], financial independence is not a positive factor in the Appellant’s favour if established, but it is an adverse factor if it is not established. Hence the failure to determine this issue or properly consider the evidence on Mr Jama’s finances did not prejudice the Appellant, as it was at most a neutral factor. The inadequacies in the decision highlighted under this ground do not amount to an error of law.
Ground 3
15. While this ground specifically challenges the decision at [30], in my view [29-32] need to be read together. At [29] the Judge permissibly notes that the Appellant had to show unjustifiably harsh consequences. No issue has been taken with the Judge’s use of the phrase ‘unduly harsh’ at [30], which seems to have strayed from the criminal to the non-criminal context. This is the phrase used by the Appellant in the skeleton argument at [9-11]. The statement at [30] that ‘no evidence’ had been presented as to why separation would be unduly harsh could have been better expressed. However, I must avoid an overly narrow textual analysis (see Volpi v Volpi [2022] EWCA Civ 464 at [2]. In my view here the Judge was simply stating that the evidence did not establish that the separation was unduly harsh. Para 30 needs to be read with para 31. Para 31 explains why the separation would not be unduly or unjustifiably harsh. Little had been said about the Appellant’s situation in Nigeria other than a claim of destitution. However, she was highly educated with a history of good employment. Her partner could fund a property whilst she applied for entry clearance. These were all valid reasons why the separation would not be unduly harsh, and would not result in unjustifiably harsh consequences. The Judge gave adequate reasons for finding that the separation would not be unduly or unjustifiably harsh and hence that the decision was proportionate. Ground 3 identifies no arguable error of law.
Conclusion
16. In view of the above analysis, I find that the decision of the FTT Judge did not contain any error of law and so I dismiss the appeal.
Notice of Decision
The appeal is dismissed.

Judge Sills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18.7.25