Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003166
First-tier Tribunal Nos: HU/55064/2024
LH/01307/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

GRACE WAIRIMU MUNGAI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Papasotiriou, Counsel; RAMFEL
For the Respondent: Mr A Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 6th March 2026

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Wyman dismissing her human rights appeal. The Appellant applied for permission to appeal which was granted by First-tier Tribunal Judge Mulready, in the following terms:
“2. The grounds are that the Judge failed to give adequate reasons for and appropriate weight to material witness evidence; failed to give adequate reasons for how the Appellant would have left and re-entered the UK without documentation, and for findings about the Appellant’s ability to document her residence in the UK; erred in relying on an absence of evidence the Appellant was not questioned about and in not allowing additional witness evidence which would have made a material difference to the outcome of the appeal.
3. The Decision incorrectly records that there is a burden on the Appellant “to provide documentary evidence of her residence in the UK since 2000.” There is no burden to provide specifically documentary evidence, nor was the Appellant required to show her residence here since 2000, but since 2003, given the date of her application. The Decision records the Judge’s finding that given the Appellant managed to remain illegally in the UK since 2000, it was possible she had left the UK and returned. It is arguable this is inadequately reasoned. I am therefore satisfied the grounds identify arguable errors of law material to the outcome of the appeal, and as the grounds are interlinked rather than each raising a discrete issue, I grant permission on all grounds”.
2. The Secretary of State did not provide a Rule 24 response but indicated that the appeal was resisted.
Findings
3. At the close of the hearing I indicated that I would reserve my decision, which I shall now give. I am satisfied that there are material errors of law in the decision, requiring it to be set aside and to be reheard for the following reasons.
4. In respect of Ground 1, the grounds complain that the judge failed to give adequate reasons for, and appropriate weight to, material witness evidence. In short, the grounds complain that the judge noted at paragraph 24 that minimal evidence was provided and noted an absence of documents such as wage slips, utility bills, mobile phone bills or bank accounts. The grounds criticise paragraph 37 of the decision where the judge says that the burden of proof is on the Appellant “to provide documentary evidence” of her residence in the UK since 2000, which she has failed to do for the period 2000 to 2008. The grounds also challenge paragraph 38 of the decision were the judge was exercised by the fact that the only “documentary evidence” of residence started in 2008, save for a baptism certificate and the Appellant’s asylum application made to the Secretary of State in 2000 and a 2005 application. The judge notes that save for the baptism certificate, there is no independent or documentary evidence that the Appellant has been in the UK since 2000. Looking at the above passages, I find that the judge has given inadequate reasons and insufficient weight to the evidence before her. First, in relation to the finding at paragraph 37, the burden of proof does indeed fall upon the Appellant, but not to establish that they have demonstrated twenty years’ continuous residence in the UK via documentary evidence alone. It was not open to the judge to make this finding, as the immigration rules do not require the Appellant to establish her case via documentary evidence alone. It is clear that the judge was greatly exercised by the paucity of documentary evidence, from the above references to the decision made in the Grounds of Appeal (summarised above). This, alongside the judge’s treatment of the witness evidence, (which I shall shortly come to), draws me to the conclusion that the judge has failed to make findings upon, and give insufficient weight to, material witness evidence before her. I also note that the judge is incorrect to state that there was no independent or documentary evidence of the Appellant being in the UK since 2000 to 2008 save for the baptism certificate, when the judge notes in the same breath that there was an asylum application in 2000 and a further application in 2005. This is not ‘independent’ evidence per se, but it is corroborative evidence that the Appellant was at least more likely than not to be in the UK and trying to regularise her immigration status in 2000 and in 2005 at the very least. Thus, the judge was wrong to say that there was no “independent or documentary evidence” that the Appellant has been in the UK since 2000 and at the same time failed to place sufficient weight on these pieces of evidence. In relation to the witness evidence, the judge considers this at paragraphs 30 through to 34 of the decision, but nowhere in those paragraphs does the judge make any finding upon whether or not she found the witness (Ms Wilson) to be credible; or, if not, or only in part, to what extent she accepts or places any weight upon her evidence. Albeit one perceived inconsistency is noted in relation to Ms Wilson’s statement in oral evidence (that there may have been times when the Appellant did not always attend service at the church, as opposed to where she says in her witness statement that the Appellant “never missed a service”), the judge makes no other observation or finding upon the witness’s evidence and does not find whether it is reliable or not and whether it can or cannot support the Appellant’s account of being resident in the UK between 2000 and 2008. Thus, given the judge’s observation as to the paucity of evidence before 2008, and given that this was the Appellant’s sole witness who the judge permitted to give evidence (a matter which I shall turn to momentarily), I find that the judge has not adequately assessed or holistically included the Appellant’s key witness evidence. I also note in passing that the judge has not made any reference to the other witness statements in her findings from witnesses who could not attend the hearing, and whilst those may be entitled to far less weight than that of Ms Wilson, there is no finding made as to any weight being attributed to those at all, which is a further omission in the judge’s findings. Therefore, I find that there is a material error of law established in relation to Ground 1 and the judge’s assessment of the Appellant’s evidence and her ability to meet the Immigration Rule in question.
5. Turning to Ground 2 and the argument that the judge failed to give adequate reasons for finding that the Appellant left and re-entered the UK without documentation, I note the contents of paragraph 38 of the decision which is relevant to this issue:
“Whilst the Appellant has the burden of proving his (sic) continuous residence, there is some force in Ms Burnard’s submission that the Respondent has not presented any positive evidence of her leaving the UK. I note that to do so that without leaving any record she would have had to circumvent immigration control (sic). However, given that she has managed to remain illegally in the UK since 2000, it is possible that she has in fact done so. The Respondent makes no positive assertion that the appellant has engaged in any such subterfuge” (underlining emphasis supplied).
Taking that passage and unpicking its process and implications piecemeal, I first canvassed with Mr Sheikh whether or not the Respondent had asserted that the Appellant had left and re-entered the United Kingdom between 2000 and 2008. Mr Sheikh confirmed that this was not so and that this was not the Respondent’s case. I thus find that the parties are in the somewhat unusual position that the judge has made a finding against the Appellant (i.e. that she has left and re-entered the UK) where this assertion has not been made by the Secretary of State, and where the Secretary of State has not produced any evidence to substantiate that assertion (which it would fall to her to prove, had she made that assertion), and where there was also no evidence before the judge that the Appellant had in fact left the UK and returned to the UK (such as landing cards or Visa Application Forms or fingerprints being taken from the Appellant at the border) which could rationally form the basis for this finding. Mr Sheikh encouraged me to find that the judge’s statement that “it is possible” that the judge’s finding that the Appellant has “in fact” managed to remain illegally in the UK since 2000, and therefore left the UK without any record and circumvented immigration control upon return, was not a finding of fact, but a mere speculation made by the judge. However, this is no comfort to the Appellant as it is not open to the judge to speculate in that manner where there is no basis for doing so on the evidence before her. Moreover, I find that this finding of fact, which indeed it is as the judge specifically uses the phrase “in fact”, is legally unsustainable and was not open to the judge to make. This is because there is a lack of evidence demonstrating the Appellant had left and returned to the UK on any occasion at all. In addition, the judge’s finding that because the Appellant was able to remain in the UK unlawfully since 2000 (although an asylum claim was made shortly after her arrival, which the judge fails to note in terms of the lawfulness of her presence), he must have left and returned through illegal channels, is a perverse finding that it was not open to the judge to make as this does not rationally point to an individual having left and returned by circumventing immigration control, as the ability to remain in the UK unlawfully, merely points to a migrant’s ability to evade detection whilst living a clandestine life in the UK and working unlawfully to support themself, whereas this is incomparable to a migrant’s ability to leave the UK either via clandestine methods, or via the border (the latter of which would have left a residue in the Home Office’s database in all likelihood), or to return to the UK and circumvent immigration control (such as, via returning to the UK hidden in the back of a lorry, or arriving via a boat from a foreign shore, etc.). This is because any Appellant who was able to remain clandestinely in the UK and live and work unlawfully in this country, would also automatically and by extension, be able to leave and return unlawfully, which would mean that if there were gaps in an any Appellant’s documentary evidence, they could not possibly succeed in their application or appeal because according to this judicial mindset it could mean they had not lived here at all unless they had documentation to prove they had. I also bear in mind that this finding is not in keeping with the Appellant’s own history, or indeed the Respondent’s case, as it was the Secretary of State’s case that the Appellant arrived in the United Kingdom and claimed asylum in February 2000. Therefore I find that this finding was not open to the judge to make based on the evidence before her and represents pure irrational speculation borne of the Appellant’s ability to remain in the UK without legal status. Therefore, I find that Ground 2 also establishes a material error of law.
6. Pausing here to consider the errors already found, in my view, the failure to make findings upon and give full weight to the Appellant’s witness evidence, alongside the unlawful finding that the Appellant left and re-entered the UK where there was no evidence to substantiate this, is sufficient to demonstrate the decision suffers from material errors of law such that it should be set aside in its entirety. However, I have gone on to consider Grounds 3, 4 and 5 de bene esse.
7. Turning to Ground 3, it is argued that the judge gave inadequate reasons for finding the Appellant was unable to document her residence in the UK. Albeit the judge observes the lack of documentary evidence from the Appellant, this ground reveals an expectation from the judge that there should be more documentary evidence produced by the Appellant in comparison with other litigants the judge may have seen. Bearing in mind that the judge found at paragraph 37 that the burden of proof fell upon the Appellant to provide “documentary evidence of her residence in the UK since 2000”, I find that this ground also establishes an error of law as it inadvertently discounts the witness evidence and the Appellant’s own testimony.
8. Turning to Ground 4 and the argument that the judge committed a procedural error in relying on an absence of evidence which the Appellant was not questioned about, and the judge at paragraph 34 expressing surprise that the Appellant did not present documents from church, such as photographs of her engagement in the congregation, I do not find that this ground establishes an error of law, as it was open to the judge to make observations about evidence that could have been produced. It is argued that the Appellant was not asked about these photographs or other documentary evidence from the church at the hearing, however there is no application by the Appellant’s representatives to obtain, let alone provide, a copy of the Record of Proceedings to substantiate this allegation, nor is there any witness statement from previous Counsel who attended the First-tier Tribunal, or even a copy of their notebook, or notes from the hearing or the Presenting Officers’ minute, to substantiate this ground. Therefore in the absence of any supporting evidence, I do not find that an error of law has been established as alleged.
9. Finally, turning to Ground 5, and the argument that the judge made a procedural error in not allowing additional witness evidence which would have made a material difference to the outcome of the proceedings, I note paragraphs 15 to 19 of the decision whereby the judge documents that preceding Counsel had applied for permission to serve a further witness statement and call a further witness who had attended court, I am only just persuaded that it was unjust of the FTTJ to not permit the further witness statement and oral evidence from the second witness, chiefly because, albeit the statement was late and would have been provided in breach of Practice Directions, the Appellant’s legal representatives are an underfunded charity, and moreover the judge would have been aware at that point that the Appellant’s other witnesses were not attending, and the accommodation of a further/second witness, particularly where the judge was exercised by the absence of documentary evidence, and believed the Appellant needed to establish her case in the absence of greater quantities of documentary evidence, should have permitted the Appellant’s witness to attend and give evidence in relation to the Appellant’s length and continuity of residence, as this would have formed a substantial part of the evidence the Appellant was able to muster and the prejudice to the Respondent would not have been significant or severe enough to justify barring the Appellant from presenting that evidence in the interests of justice and fairness and the overriding objective. Thus, I am only just persuaded, that this represents a further error of law, albeit not a material one on its own.
10. In light of the above findings, and considering the errors of law I have found holistically, I find that the decision contains sufficient errors of law which are material to the outcome of the decision such that it should be set aside in its entirety.
Notice of Decision
11. The appeal to the Upper Tribunal is allowed.
12. The appeal is to be remitted to be heard by any Judge of the First-tier Tribunal other than Judge Wyman.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 March 2026