Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004544
First-tier Tribunal No: HU/61060/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 November 2025

Before

Deputy upper tribunal JUDGE Kelly

Between

ELHADJI AMARA BA
(ANONYMITY NOT ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Joshi, Legal Representative
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on the 26th November 2025

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of Senegal. The Respondent refused his application for indefinite leave to remain in the United Kingdom (based on upwards of 20 years’ continuous residence) on the 13th August 2024 and his appeal against that refusal was dismissed by First-tier Tribunal Judge Hawden-Beal on the 11th September 2025. Judge Lawrence granted permission to appeal against Judge Hawden-Beal’s decision, and hence the matter came before me.
The appellant’s case
2. The essence of the appellant’s claim before the First-tier Tribunal was that he had entered the United Kingdom on a date prior to him being encountered by immigration authorities in March 2003 and had thereafter continuously resided and worked here (sometimes under an alias) to the date of his application in April 2023. He therefore met the requirement for 20 years’ continuous residence under paragraph 5.1 of Appendix PL of the Immigration Rules.
Findings of the First-tier Tribunal
3. The judge agreed with the view of the respondent’s primary decisionmaker, namely, that whilst the appellant had “provided evidence to demonstrate that he was here in 2003 and has been here since 2015”, the evidence did not support his claim to have been in the UK in the intervening years, “because there is no evidence to link him to the payslips in the name of Armand Nolaye (his claimed pseudonym whilst working as a chef at ‘Bella Italia’)” [29, emphasis added].
4. The judge acknowledged that the appellant’s Senegalese passport (renewed in London in 2008 and 2013) did not include evidence of either exit or re-entry stamps, or of any visa for the UK. Whilst the judge thought that it was, “possible for the appellant to have come and gone between 2003-2013”, she nevertheless considered it, “unlikely that he would have been able to leave the UK surreptitiously and then return equally ‘under the radar’ during the ‘missing years’ … but particularly between 2013-15 when he did not have a passport [30].
5. Whilst the oral evidence of the appellant’s witness (Mr Sambou) supported the appellant’s claim to have been in the UK after 2015 (because they had lived together from that date) there was, “no evidence to demonstrate that Mr Sambou was working for Bella Italia at the same place as the appellant between 2005-10”, after which it had been Mr Sambou’s evidence that he had “moved to another restaurant within the [Bella Italia] group” [33, emphasis added].
6. The judge therefore concluded that, “without evidence that Mr Sambou was working at the same restaurant as the appellant between 2005-10 and without the evidence to confirm the appellant and Armand Nolaye are one and the same person and that he was in the UK from 2003-15 other than the dates when he renewed his passports in 2008 and 2013, I cannot be satisfied that the appellant has demonstrated that he has been here for a continuous period of 20 years from 2003” [34, emphasis added].
7. Having concluded that the appellant did not meet the requirement for 20 years continuous residence in the UK preceding his application under the Immigration Rules, the judge went on to consider whether there were very significant obstacles to his reintegration in Senegalese society but concluded that there were not [35 to 38]. Finally, the judge considered that the appellant’s removal was proportionate in seeking to maintain immigration controls given (a) that his private life in the UK had been established whilst his immigration status was precarious, and (b) the absence of any exceptional circumstances rendering the consequences of removal to Senegal unjustifiably harsh [39 to 43].
The grounds of appeal and the response of the respondent.
8. The grounds of appeal can be conveniently summarised by saying that the judge erred in -
(1) failing to adopt the recommended structured approach by firstly determining whether the appellant met the immigration rules and only then (if necessary) going on to consider wider considerations under Article 8 of the Human Rights Convention.
(2) Incorrectly finding that there was “no evidence” to show that the person working in the name of ‘Armand Nolaye’ at the ‘Bella Italia’ restaurant chain was the appellant and/or failing to make any credibility findings concerning oral evidence upon the issue that had been given by the appellant and his witness (Mr Ousmane Sambou).
(3) Illogically finding (on the one hand) that it was “unlikely” that the appellant had surreptitiously left and returned to the UK during the intervening years between 2003 and 2015 and (on the other hand) finding that he had failed to prove that he had continuously resided in the UK during that period.
9. The respondent responded to the above grounds in a Notice served under Rule 24 of the Procedure Rules upon which Ms Everett relied without elaboration. It may be conveniently summarised as follows –
(1) Whilst the decision could have been better structured, it nevertheless included consideration of the substance of the relevant immigration rules within its analysis of the appeal under Article 8 of the Human Rights Convention.
(2) The judge was entitled to find (as the respondent argued at the hearing) that there was no evidence “to corroborate” the appellant’s claim that he used the alias of Mr Nolaye.
(3) Whilst the judge considered it “unlikely” that the appellant had surreptitiously left and returned to the UK during the intervening years [emphasis added in the response], it is nevertheless clear from the reading the decision as a whole that, “the judge did not accept that the appellant had shown he was continuously resident in the UK for 20 years”. Moreover, the onus was on the appellant, “to prove on the balance of probabilities that he had been continuously resident in the UK for 20 years”.
Analysis
10. So far as the first ground is concerned, it is the substance rather than the form that matters. The judge clearly focussed on the requirement under the immigration rules for an applicant to prove continuous residence in the UK over a period of 20 years (paragraphs 28 to 34), expressly referring at paragraph 31 to the respondent’s guidance in applying Appendix PL of those rules, before proceeding to weigh wider considerations under Article 8 of the Human Rights Convention from paragraph 35 onwards. I therefore conclude that there is no merit in the first ground of appeal. I am however satisfied that the second and third grounds of appeal establish errors of law that vitiate her decision to dismiss the appeal. This is for the following reasons.
11. The judge expressly reminded herself (at paragraphs 31 and 32) that there was no requirement under the immigration rules for an applicant to provide documentary evidence to support an application based upon long residence in the UK, and that the appeal accordingly fell to be determined upon all the evidence, including oral evidence given by the appellant and his witness at the hearing. Despite this, the judge thereafter repeatedly referred to the supposed absence of any evidence to support the appellant’s claimed residence in the UK between March 2003 (the time when the respondent accepts that the appellant was encountered by UK immigration officials) and 2015 (the point from which the respondent accepted that his residence was fully documented) without at any point acknowledging the oral evidence that the appellant had given concerning his presence in the UK during the period of what she characterised as “the missing years”. The judge accordingly adopted the respondent’s view that there was no evidence to support the appellant’s claimed presence in the UK during this period because, “there is no evidence to link him to the payslips in the name of Armand Nolaye”, which, she said, “the appellant himself has acknowledged” (paragraphs 28 and 29, emphasis added). Had the judge limited these observations to the absence of documentary evidence, then not only would she have accurately described the evidential position, but she would naturally have been led into considering whether the appellant’s oral (non-documentary) evidence proved, on the balance of the probabilities, his uninterrupted presence in the UK during that period. As it was, the judge’s failure to acknowledge the potential relevance of the oral evidence concerning this issue meant that she also failed to assess its veracity and reliability and thereby accord it appropriate (or indeed any) weight.
12. The judge did however (albeit perhaps unwittingly) provide a cogent reason for accepting the appellant’s oral evidence of his uninterrupted presence in the UK between 2003 and 2015 by finding that the circumstantial evidence rendered the possibility of his surreptitious departure and return to the UK during the interim period, “unlikely”. Given that the required standard of proof was ‘a balance of probabilities’ (that is to say, ‘more likely than not’) this finding ought logically to have led the judge to conclude that the appellant had discharged the burden of proving his claim that he had been continuously resident in the UK during this period, notwithstanding the absence of any documentary evidence to support it. It follows from this that (1) the judge’s conclusion to the contrary was irrational, and (2) the judge’s findings concerning the primary facts, which have not been challenged by the respondent, meant that the only rationale outcome was for the appeal to be allowed.
Notice of Decision
The appeal is allowed.
The decision of the First-tier Tribunal to dismiss the appeal against the decision of the Secretary of State is set aside and is substituted by a decision to allow it.

David Kelly Date: 27th November 2025
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber