Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002790

First-tier Tribunal No: EU/51425/2023
LE/03503/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

RAULI KHUJADZE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Kogulathas, Counsel instructed by Lawlex Solicitors
For the Respondent: Mr J Nappey, Senior Home Office Presenting Officer

Heard at Field House on 25 November 2025

DECISION AND REASONS

History
1. This appeal was heard by the First-tier Tribunal (Judge Dyer) on 26 March 2025 who dismissed the appeal of the Appellant, a citizen of Georgia against the Respondent’s decision dated 20 February 2023 to refuse his application under Appendix EU of the Immigration Rules for leave to remain as an individual with retained rights.
2. The application had been refused on the grounds that the Appellant and his ex-wife (the Sponsor) had been parties to a marriage of convenience. The FtT found that the Respondent had proved that to be the case.
3. The Appellant applied in time to the FtT for permission to appeal. The three grounds in brief were that: there had been procedural unfairness, misapplication of the burden and standard of proof and errors of fact; that the FtT had overlooked relevant evidence and given inadequate reasons for its conclusions; and the FtT had engaged in improper speculation. The FtT granted permission on all three pleaded grounds.
4. At an error of law hearing on 29 August 2025 sitting with Judge O’Brien, we found that the FtT’s decision involved the making of material errors of law such that none of its findings of fact could stand. The matter was retained in the Upper Tribunal for the decision to be remade. Our error of law decision should be read alongside this decision given our specific findings in respect of the decision of the First-tier Tribunal.
BACKGROUND
5. The background to this appeal is set out in the documentation contained on MyHMCTS (under First-tier Tribunal case reference EU/51425/2025) and in documents uploaded to CE file. The hearing was recorded and the recording shall stand as the record of proceedings.
6. The Appellant asserts that he meets the requirements of Appendix EU because at the relevant time he was the spouse of an EEA national Aljona Sergeitsuk an Estonian citizen.
HEARING
Issues in dispute
7. The parties agreed that the only issue in dispute is whether the Appellant entered into a marriage of convenience.
Oral Evidence
8. I heard evidence from the Appellant who confirmed the contents of his three witness statements. Cross examined at length by Mr Nappey he confirmed that having entered the United Kingdom lawfully in 2011 he overstayed. He met his wife through social media early in 2014 when she was in Estonia. After she came to the United Kingdon in October 2014 they moved in together after a little more than a week and agreed to marry two months later. The Appellant said he did not think this was quick and they did not marry for immigration purposes. The Appellant denied Mr Nappey’s suggestion that when his application was dismissed, he did not attend the appeal hearing because he did not care. He explained that having been arrested and detained and both he and his wife having been interrogated she felt stressed and that she was being treated like a criminal. His lawyer advised that because she felt so uncomfortable and distressed that they could deal with the appeal on papers and they made an application to do so. In any event he said they were both very young aged 21 and 24 at the time of their marriage. The Appellant explained that he is no longer in communication with the Sponsor they separated over three years ago and she had been uncomfortable going through this procedure whilst they were married let alone after the break up.
9. Mr Nappey took the Appellant through the seven inconsistencies between his answers at interview and those of his wife noted in the First-tier Tribunal decision. The Appellant responded and I will refer to his responses below.
Submissions
10. Mr Nappey relied on the reasons for refusal letter and the Respondent’s review. He said that there was no reason to depart from the 2018 decision. The oral evidence given today as to why the Appellant did not attend is incredible. Devaseelan (Second Appeals – ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702 applies and there should be no departure. The Judge had sight of all the relevant documentation and that should be the starting point. With respect to the oral evidence the Appellant was an overstayer and the timing of his marriage to an EEA national was convenient. They met online and married only two months after meeting in person. When they were both interviewed there were clear discrepancies between the answers given. These included when he came to the United Kingdom, why he came, where he lived, where he was born, and the social media platform upon which they met. There are very few photographs submitted to corroborate their relationship and those produced are not dated. The witness statements from friends are unreliable. They did not have a joint bank account. I was asked to dismiss the appeal.
11. For the Appellant Ms Kogulathas referred to the ASA. The Appellant and his wife, the Sponsor, were asked a large number of questions at interview and their answers are for the most part consistent. In these circumstances people refer to different times and misunderstand what is asked of them. A clear example is the social media platform. They met on Facebook but communicated on the Russian platform. There was every reason to depart from the first decision. There is no reference at all to the contents of the interviews in the first decision, just a bald statement that all documents were before the Tribunal. The Appellant has explained why he did not attend the first hearing. There are several examples of the oppressive nature of the interviews. The Appellant had been detained. The relationship between the couple subsisted for several years afterwards which is not indicative of a marriage of convenience. Ther Appellant has given straightforward and candid evidence. The couple lived together for several years. The couple clearly knew a lot about each other and this is demonstrated by the interview record. It was always the Appellant’s case that he did not have sight of the interview record before the first hearing.
LEGAL FRAMEWORK
12. To prove that the Appellant is a party to a marriage of convenience the Respondent must show that it is more likely than not that the marriage was entered into:
“as a means to circumvent:
(a) any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or
(b) any other provision of UK immigration law or any requirement of the Immigration Rules; or
(c) any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law; or
(d) any criterion the party would have to meet in order to enjoy a right to enter or reside in the Islands under Islands law”.
The material date for my assessment is the date of decision being 20 February 2023. The burden of proof is upon the Respondent and the standard of proof is the balance of probabilities.
REMAKING THE DECISION: FINDINGS
13. I have carefully considered the oral and written evidence put forward along with the ASA, the response and submissions. The facts are straightforward. The Appellant came to the United Kingdom lawfully in 2011 and overstayed. In May 2014 he began an online relationship with an Estonian national who was living in Estonia She travelled to the United Kingdom in October 2014 and after little more than a week. the couple began cohabiting. Shortly afterwards the Appellant proposed and the couple were due to marry on 9 January 2015 but the Appellant was detained before the wedding could take place. On his release from custody on 6 February 2015 the couple married. On 2 October 2015 both parties attended marriage interviews. Thereafter the Appellant applied for a residence card but his application was refused on the basis that the marriage was a sham marriage intended to gain an immigration advantage. The Appellant appealed and on 22 March 2018 his appeal was dismissed. The Appellant did not attend the hearing having asked for the appeal to be dealt with on papers. It is the Appellant’s case that he and his wife remained together as husband and wife after the refusal and the dismissal of his appeal but that they separated in 2021 and the Appellant petitioned for divorce in January 2022 with decree absolute being granted in April 2022.
14. On 14 November 2022 the Appellant applied for leave to remain on the basis of his retained rights as a person who had been married to an EEA national. This application was refused on the basis that the marriage was one of convenience intended to obtain an immigration advantage.
Devaseelan
15. The Respondent submits that I should take the decision of 22 March 2018 as my starting point. Mr Nappey asserts that there is no good reason to depart from this decision and that the Judge hearing the case in the Appellant’s absence had sight of all relevant documentation. In my judgment that are a number of reasons why I am justified in departing from this decision.
16. In the first place Judge Dyer accepted the Appellant’s evidence that he did not have access to the marriage interview transcripts prior to the first appeal hearing and so had no opportunity to address the alleged discrepancies. I see no reason to depart from Judge Dyer’s finding in this respect. In the second place and in any event the initial decision simply recites, and numbers, the 20 discrepancies alleged and appears to have copied them over from the refusal decision without any indication that they have been examined against the interview records. In the third place it would be unfair to not to depart from the original decision when Judge Dyer, having examined the alleged discrepancies against the interview record found that only 7 of the 20 discrepancies alleged had any real substance. Finally, it is apparent that the first judge misapplied the burden of proof finding (at paragraph 11) “that the respondent has raised sufficient evidence through the inconsistencies to warrant an explanation from the appellant to explain such inconsistencies and discrepancies.” At no point in the decision does the Judge note that the burden of proof is on the Respondent and that the standard of proof is the balance of probabilities. Rather the implication is that the Respondent having raised suspicions the burden shifted to the Appellant.
The marriage and the interview records
17. The Respondent’s conclusion that this was a marriage of convenience is based upon two factors. The first is simply that the Appellant, a person without lawful status in the United Kingdom, met and married in fairly short order an EEA national. The second is that when both were interviewed the answers they gave revealed a significant number of discrepancies.
18. Dealing first with the marriage I find no reason to doubt the Appellant’s evidence, corroborated as it is by the Sponsor, that they met online whilst he was in the United Kingdom, and she was in Estonia. Equally I find no reason to doubt that after she came to the United Kingdom they began cohabiting within two weeks. Whilst this may seem quick, they were at the time a young couple aged 21 and 24 and their online relationship had endured for a number of months. That they should decide to marry shortly afterwards is entirely plausible and indeed the Appellant’s description of the proposal adds to its plausibility. Such decisions, particularly when made by young people, are sometimes spontaneous and rushed. As we found at the error of law hearing it is significant that at the time the online relationship commenced the Sponsor was not in the United Kingdom but was living in Estonia.
19. The Appellant was detained in January 2015 before the marriage could take place and held for a period of about three weeks. On his release from detention the couple went ahead with their marriage. In my judgment this adds to the plausibility of the genuineness of their intent. Neither the Appellant nor his spouse were deterred.
20. The marriage interviews took place some eight months later in October 2015. These were very lengthy and detailed interviews. The Appellant’s wife was asked 308 questions. Her interview record is very revealing in that it very clearly shows the oppressive way in which the interview was conducted. Judge Dyer notes (paragraph 15 of his decision) that
“the interviewer was making comments that were sarcastic or rude” and that
“given the tone of the interview”
it was not appropriate to rely on the later issues raised. In fact when the interview is read as a whole it is in my judgment clear that the interview was oppressive from the start with the warning to the Sponsor (question 12) not only that it is a criminal offence to enter into a marriage of convenience but that at the end of the interview
“if… it is decided your relationship is not genuine … You will be given one month to leave the UK or you could be kept at a detention centre or prison whilst you await a court appearance”
The Appellant, who gave evidence to me through an interpreter, was interviewed in English by the same interviewing officer. Reading through the interview record it is clear that there were some communication difficulties, but these were not serious enough for the interview to be halted. The Appellant was asked 466 questions before there was a break. After the break the interview record restarts and a further 86 questions are recorded.
21. Where a couple are interviewed separately and a total of 860 questions are asked it is, in my judgement, inevitable that there will be some discrepancies. The well-known TV series ‘Mr & Mrs’ was based on established couples being asked just six questions separately with the jackpot being won only if all six answers matched. So far as the Appellant and his wife were concerned the Respondent (and the first judge) noted 20 discrepancies and on examination by Judge Dyer this reduced to just 7. The question to be examined is whether those 7 discrepancies, combined with the Respondent’s suspicion about the speed and circumstances of the marriage was sufficient to meet the burden of proof of proof that was upon the Respondent to show, on the balance of probabilities that this was a marriage of convenience entered into by the Appellant to gain an immigration advantage.
22. To answer this question, it is necessary to examine those seven remaining discrepancies to ascertain whether they go to the heart of the relationship between the parties.
23. The first is the description of Baleri the Appellant’s cousin. The Respondent noted that the Sponsor referred to him as the Appellant’s brother. In this respect the Sponsor explains that in her language the words for cousin and brother are the same. We dealt with this to an extent in our error of law decision (paragraphs 8 and 9). The Appellant has now adduced evidence from a Russian linguist supporting this explanation showing that in everyday speech the same word is used with a clarifying word used when exact relationships are being discussed. There is in my judgment no inconsistency.
24. The second is the Sponsor’s knowledge of the Appellant’s hometown in Georgia. In this respect we found at paragraph 10 of our error of law decision that the Judge’s conclusion was not reasonably open to her. Whilst the Sponsor said that as a Russian speaker, she found the name too complicated Judge Dyer did not accept this as he said, without referring to any authority, that Georgia had similar linguistic roots to Russia. In the first place the Respondent has not submitted any evidence to show that this is the case. In the second place and in any event, I do not find that failure of the Sponsor to name, or even to know, the name of the Appellant’s hometown in Georgia to be fundamental to the genuineness of their relationship. Her answers at interview (questions 45 and 46) that her husband was born in Georgia but she did not know the specific whereabouts due to “very complicated names there” should not in my judgment have caused concern particularly given the very clear answers to the subsequent questions about the Appellant’s family.
25. The third relates to the Sponsor’s employment and education where it is alleged that the Appellant’s account of what the Sponsor was doing in Estonia conflicts with her account. An example is that the Sponsor described herself as “doing nothing” in Estonia after finishing school whereas the Appellant said she was working in different places. I find the Sponsor’s explanation in her witness statement that she had some temporary employment which she did not treat as work entirely rational and understandable. Again, and in any event the Appellant’s knowledge of exactly what the Sponsor was doing before he met her is not fundamental to their relationship. I find it very difficult to understand why the interviewing officer would consider small discrepancies in the Appellant’s knowledge of exactly what his partner was doing before he met her to be indicative of a sham marriage.
26. The fourth relates to the Sponsor’s knowledge of who completed the application form. Again we have dealt with this at the error of law hearing (paragraphs 14 to 17). It was suggested that her lack of knowledge in this respect showed a lack of interest in the process. In fact, her answer at interview (questions 123 & 124) shows that when asked she said that she did not speak English very well “so its not me for sure” clearly implying that it was the Appellant. There were no follow up question asked. This does not in my judgment display a lack of interest and certainly is no indicator of a sham marriage.
27. The fifth refers to the difference in time frames for the length of time of the Sponsor was in the UK prior to interview where Judge Dyer records “no real explanation put forward”. There is no further explanation or reference to the interview records detailed. Mr Nappey did not raise this in cross examination or submissions and I have carefully read through both interview records and I can see no discrepancy in this respect. The interview was in October 2015 and it was common ground that the Sponsor arrived in the United Kingdom in October 2014.
28. The sixth relates to how the Sponsor ‘s knowledge of how the Appellant supported himself in the United Kingdom. In this respect the Respondent, and Judge Dyer, seem to have misinterpreted the interview record. At questions 81 to 85 of the interview record it is clear that the Sponsor confirms that the Appellant is supported by his mother and his brother.
29. The final inconsistency relates to the social media site upon which the couple met with the Appellant being said to have referred to “Odnoklassniki” a Russian site similar to Facebook whilst the Sponsor said they met on Facebook. When it was put to the Sponsor that her husband said in his application form that they met on the Russian site the Sponsor was emphatic that they met on Facebook and that if the Appellant had said otherwise
“he doesn’t remember. I remember that we met on Facebook”.
The Appellant’s answers at interview are less clear (questions 297 – 303). His first answer is that they met on Facebook, but he then appears to clarify
“It’s Russia, the same like Facebook. Its called Obnalastik … it’s the same”.
What in my judgement is very clear indeed is that the parties met through social media and were effectively using social media as a dating website. Whether the first meeting was on Facebook or the Russian language equivalent is hardly relevant to the genuineness of intention. Both parties were looking for a partner.
30. In my judgement a careful examination of the interview records shows no material discrepancies or inconsistencies. Judge Dyer found and I have also noted that the interviewing officer was sarcastic, rude and oppressive in his conduct of the interview of the Sponsor. It is clear from my findings above, and indeed the findings of Judge Dyer, that the officer purported to find discrepancies where none of any real significance existed. What is also manifestly clear is that the Respondent did not take positive note of the overwhelming number of questions asked where the Appellant and the Sponsor displayed significant knowledge of each other. The interview records were not looked at fairly and holistically rather they were looked at with a view to finding fault.
31. Finally there is the question of the conduct of the parties to the marriage after the interview, the initial refusal decision and the initial appeal. In this respect I give no weight to the evidence of the two witnesses who put forward what were clearly pro-forma witness statements. I do however give weight to the written evidence of the Appellant and the Sponsor and the oral evidence of the Appellant. I am satisfied that although the marriage eventually failed this couple having met online in May 2014 and commenced cohabitation in October/November 2014 remained together as a married couple from February 2015 until sometime in 2021 before divorcing in 2022. Using the analogy that was commonplace in primary purposes cases many years ago I find that subsequent events can often cast a flood of light over the circumstances pertaining at the time of the marriage. In this case and taking account of all of my findings above, I find that the Respondent has not met the burden of proof that is upon her to show that this was a marriage that was entered into with the purpose or intent of securing an immigration advantage.

NOTICE OF DECISION
The appeal is allowed.

TO THE RESPONDENT
FEE AWARD
I have allowed the appeal and therefore I make a full fee award.

Signed Date: 8 December 2025

Judge J F W Phillips
Deputy Judge of the Upper Tribunal