Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003272
First-tier Tribunal No: HU/56266/2024
LH/01237/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

WENDY SEGUWAA AFRIYIE
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Javaherian, Counsel instructed by Solomon Shepherd Solicitors
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 19 August 2026

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal, promulgated on 2nd May 2025, dismissing the appellant’s appeal against a decision of the Secretary of State made on 22nd May 2024, refusing her human rights application.
Background to the appeal
2. The appellant is a Ghanaian national who entered the UK on 6th October 2023 with leave to enter as a dependent partner of a skilled worker. On 29th March 2024, the appellant’s partner’s leave was curtailed to expire on 28th May 2024. The appellant’s leave was also curtailed to expire on the same day. On 17th May 2024, the appellant made a human rights application on the basis of a relationship with a different partner.
The First-tier Tribunal decision
3. The Tribunal dismissed the appeal. The Judge noted that the respondent accepted that the appellant was previously married to Mr Bonus and that they were divorced on 12th January 2024, that Mr Okai-Ntow was separated from his previous partner with whom he has two British national children, that the appellant married Mr Okai-Ntwo by proxy on 28th February 2024 and that the appellant and Mr Okai-Ntow have a son together who was born in Ghana on 6th January 2010 [9]. The Judge identified the issues to be decided by the Tribunal [10]. One of the issues to be decided by the Tribunal was whether the divorce between Mr Okai-Ntow and his previous partner could be recognised in the UK and the effect of that on the proxy marriage between Mr Okai-Ntow and the appellant. The Judge stated that Counsel for the appellant had not disputed that, under Section 46 of the Family Law Act 1986, the divorce between Mr Okai-Ntow and his previous partner could not be recognised in the UK and that she did not dispute that this meant that the marriage between Mr Okai-Ntow and the appellant could not be considered to be a valid marriage for the purposes of the Immigration Rules [21]. The Judge therefore found that the appellant did not meet the eligibility relationship requirements for the purposes of Appendix FM [22]. The Judge then proceeded to consider whether the appellant had shown that she had a genuine and subsisting relationship with Mr Okai-Ntow. She found that there was insufficient evidence of a genuine and subsisting relationship [25-27]. The Judge further found that there were no exceptional circumstances which meant that the refusal of leave to remain would lead to unjustifiably harsh consequences [33, 34].
The appeal to the Upper Tribunal
4. On 26th August 2025, the Upper Tribunal granted permission to appeal to the Upper Tribunal. The Upper Tribunal found that it was arguable that the Judge had to address the appellant’s arguments regarding the validity of the divorce and therefore the validity of the marriage. The Upper Tribunal stated that the other grounds appeared to be a disagreement with the findings rather than an error of law but did not limit the grant of permission.
The grounds of appeal
5. The appellant put forward three grounds of appeal.
Ground 1
6. The appellant submitted that the Judge had erred in stating that Counsel accepted that the appellant did not meet the definition of a partner. The grounds referred to Counsel’s note of the hearing and submitted that they expressly stated that Counsel did submit that the appellant met the definition of a partner. The appellant further submitted that Counsel had argued that as the divorce was recognised in Ghana, this meant that the proxy marriage was also recognised and it was therefore a valid marriage for the purposes of the Immigration Rules.
Ground 2
7. The appellant submitted that the judge failed to consider relevant and material considerations. The grounds submitted that, when assessing cohabitation and genuine relationship, the Judge took issue with the documentary evidence and the lack of documentary evidence but failed to factor in other issues such as the length of the relationship, the fact that the appellant and Mr Okai-Ntow had a child together, their mutual support of their son, the fact that they lived in the same household and other relevant evidence.
Ground 3
8. The grounds further submitted that the Judge erred in her assessment of Article 8, that she failed to undertake a fact sensitive analysis of whether family life existed and that she failed to consider the effect on Mr Okai-Ntow and his British citizen children if he had to leave the UK and accompany the appellant to Ghana.
The Rule 24 response
9. The respondent filed two Rule 24 responses. At the hearing, Ms Clewley confirmed that the relevant Rule 24 response was that dated 10th June 2026. In that, the respondent confirmed that she continued to oppose the appeal. The respondent confirmed that she had listened to the recording of the proceedings and made reference to parts of that recording. The respondent submitted that the Judge had not mischaracterised the submissions made on behalf of the appellant.
The hearing
10. I heard submissions from both parties and indicated at the end of the hearing that I reserved my decision. The submissions are fully set out in the recording of the proceedings.
Error of law decision
11. I bear in mind that an appellate Tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so I apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]. I further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72].
12. I had been provided with the transcript of the First-tier Tribunal proceedings to which I had listened prior to the hearing. I have also listened to the relevant parts of the transcript again before writing this decision.
13. Within her submissions before the First-tier Tribunal, Counsel for the appellant submitted that, whilst the divorce was not recognised as a valid divorce for the purposes of section 46 of the Family Law Act 1986 because of the residence requirement, it was recognised as a valid divorce in Ghanaian law and the proxy marriage was therefore a valid marriage in Ghanaian law and met the requirements of the respondent’s guidance.
14. Ms Clewley submitted that it was clear from the transcript that the Judge was unclear about the appellant’s position regarding section 46 of the Family Law Act 1986 because the Judge asked for clarification regarding this issue on more than one occasion. She said that she took the point that the Judge was being asked to make a finding that the marriage should be considered to be a valid marriage and therefore engage Appendix FM but submitted that Counsel for the appellant had made no clear argument and given no clear reasons why the Judge should make that finding.
15. Ms Javaherian submitted that Counsel for the appellant had clearly submitted that the Judge should consider whether, because the respondent considered the proxy marriage to be a valid marriage, the appellant should be considered to come within the definition of a partner for Appendix FM. She submitted that Counsel for the appellant had argued in the alternative, that even if the marriage were not accepted as a valid marriage for the purposes of Appendix FM because of Section 46 of the Family Law Act 1986, then the Judge should find that the appellant met the definition of an unmarried partner under Appendix FM.
16. The transcript of the recording records [1:15:17] that Counsel for the appellant submitted that the appellant met the requirements of Appendix FM and that the only contention was whether the appellant met the definition of a partner. At 1:15:32 onwards, Counsel submitted that the appellant did meet the definition of a partner as a result of her valid marriage by proxy to Mr Okai-Ntow or in the alternative having evidenced their genuine and subsisting relationship. At 1:15:58 onwards, Counsel noted that paragraph 11 of the respondent’s review conceded that the appellant’s customary marriage by proxy was valid. Counsel’s submissions regarding Section 46 start at 1:16:26. She referred to the respondent’s review decision [10] which stated that the evidential requirements were met with regard to the customary divorce between Mr Okai-Ntow and his previous partner. At 1:17:17, she referred to the respondent’s review and the comments about Mr Okai-Ntow and his previous partner not being habitually resident in Ghana. At 1:18:32, Counsel referred to the customary divorce being a valid divorce and the customary marriage by proxy being a valid marriage. She then moved on to consider Section 46 of the Family Law Act 1986 regarding recognition of an overseas divorce and submitted that Mr Okai-Ntow and his ex-partner were divorced in Ghana then the appellant and Mr Okai-Ntow married by proxy in Ghana and that marriage by proxy was considered valid under the respondent’s guidance.
17. The Judge asked for clarification of the appellant’s position to which Counsel responded that she could not argue that the divorce fell within section 46 of the Family Law Act 1986 but could say that, in Ghana, there was a divorce which was recognised in Ghana and which allowed him to marry the appellant in a customary marriage by proxy and that marriage by proxy was recognised by the respondent as valid. The Judge again asks for clarification [1:23:30] and Counsel responds by stating that if the Tribunal found that Mr Okai-Ntow was not free to marry because his divorce was not recognised by UK law, she submitted that there was still a genuine and subsisting relationship between the appellant and Mr Okai-Ntow who are married by proxy, that the respondent recognises in the review decision that marriage by proxy is a valid marriage and that it ticks the validity given in the respondent’s relevant guidance.
18. The Judge asked Counsel whether she was arguing that the appellant fell within the definition of spouse or whether it was recognised that this could not be argued because of section 46 of the Family Law Act 1986 [1:24:45]. Counsel stated that if the Tribunal did not recognise that they were married under UK law then the appellant submitted that the appellant and her partner fell within Appendix FM on the basis that they have a genuine and subsisting marriage. Submissions were then made as to why the appellant stated that she met the definition of an unmarried partner. The Judge seeks clarification of whether Counsel is saying that looking at Appendix FM, the appellant and Mr Okai-Ntow are in a valid marriage [1:26:57] and Counsel responded that if the appellant and her partner are married it must be a valid marriage but if the Tribunal found that it was not a valid marriage because of section 46 then the appellant and Mr Okai-Ntow are still in a genuine and subsisting relationship and therefore met the definition of partner and Appendix FM was satisfied.
19. Counsel did not go so far as to state outright that the divorce is valid for the purposes of UK law and therefore the marriage is a valid marriage under UK law because she recognises the impact of section 46 of the Family Law Act 1986. The Judge is therefore correct to state that Counsel accepted that Section 46 of the Family Law Act 1986 meant that the divorce was not recognised under UK law. However, it is not correct to state that Counsel conceded that this meant that the marriage between the appellant and Mr Okai-Ntow could not be valid for the purposes of the Immigration Rules. The appellant’s position was that the proxy marriage was considered to be a valid marriage as it had taken place validly in Ghana because the customary divorce was recognised as a valid divorce under Ghanaian law. Reference was made to the respondent’s review decision accepting that the proxy marriage was a valid marriage. A decision was, therefore, required on whether that was sufficient to show that the marriage was a valid marriage for the purposes of Appendix FM.
20. An alternative argument was also put forward on behalf of the appellant. That was a submission that, even if the marriage, was not considered to be a valid marriage for the purposes of Appendix FM, then the appellant met the requirements of Appendix FM as an unmarried partner. That submission was not considered by the Judge.
21. The Judge went on to consider whether the relationship was a genuine and subsisting relationship. That was an issue which required determination by the Tribunal but consideration of that issue did not take account of the validity of the proxy marriage under Ghanaian law and whether that had any material relevance to whether the relationship was genuine and subsisting. Whether the appellant met the definition of an unmarried partner for the purposes of Appendix FM also had relevance for determining whether there was a genuine and subsisting marriage. These were not issues which were considered by the Judge and there were no findings on those submissions.
22. The Judge did go on to consider whether the relationship was genuine and subsisting and found that it was not a genuine and subsisting marriage. That assessment did not include any assessment of the history of the relationship of the appellant and Mr Okai-Ntow, of the validity of the proxy marriage under Ghanaian law or the fact that the respondent accepted that it was a valid proxy marriage (albeit that it could not be recognised under UK law as a result of the customary divorce not being recognised under UK law). I find that the Judge therefore failed to make findings on material submissions which were made before her.
23. For the reasons given above, I conclude that the First-tier Tribunal decision did involve the making of an error of law.
24. I have considered whether to retain the appeal before the Upper Tribunal but there are credibility issues regarding whether the relationship is a genuine and subsisting relationship and it will be necessary for there to be a credibility assessment undertaken as a result. In those circumstances, I find that it is appropriate for the decision to be wholly set aside and for the appeal to be remitted to be reheard before the First-tier Tribunal afresh. The matter should be listed as an oral hearing when listed before the First-tier Tribunal.

Notice of decision
1. The First-tier Tribunal decision did involve the making of an error of law.
2. I remit the appeal to the First-tier Tribunal to be heard by a different judge. For the avoidance of doubt, none of the findings of fact are preserved.

F Beach
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
30th August 2026