Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2025-004662
& UI-2025-004668
FtT Nos: HU/62079/2023
LH/01662/2025
EU/54683/2024
LE/01165/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 February 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

GRACE ABA FYNN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Turner, Counsel, instructed by Direct Access
For the Respondent: Mr M Pugh, Senior Presenting Officer

Heard at Field House on 26 January 2026

DECISION AND REASONS

Introduction
1. The appellant challenges a decision of the First-tier Tribunal dismissing her human rights (article 8 ECHR) appeal. The decision of the First-tier Tribunal was sent to the parties on 28 August 2025.
2. I note that there were two joined appeals before the First-tier Tribunal:
(1) an appeal against a decision of the respondent dated 29 September 2023 to refuse the appellant leave to remain in the United Kingdom on the basis of her article 8 protected family life pursuant to Appendix FM to the Immigration Rules (HU/62079/2023), and
(2) a decision of the respondent to refuse her leave to remain under the EU Settlement Scheme, dated 10 May 2022 (EU/54683/2024).
3. The appellant appealed the First-tier Tribunal’s dismissal of both appeals to this Tribunal. The Upper Tribunal reference numbers are:
(1) UI-2025-004662 in relation to the human right appeal, and
(2) UI-2025-004668 in relation to the EUSS appeal.
4. By an order of Upper Tribunal Judge Hirst sent to the parties on 1 December 2025 permission to appeal was only granted in respect of the human rights appeal.
5. Consequently, though the appeal in UI-2025-004668 was listed before me, such listing was in error. There is no extant appeal under that appeal number.
6. Mr Turner accepted that the only appeal to be considered was the human rights appeal advanced under UI-2025-004662.
Relevant Facts
7. The appellant is a citizen of Ghana. She claims to have entered the United Kingdom on 1 August 2004 with the aid of an agent. On 23 March 2015 she submitted an application for a residence card under the then existing Immigration (European Economic Area) Regulations 2006, consequent to which she was granted leave to remain until 11 October 2021.
8. On 3 March 2021, the appellant applied under the EU Settlement Scheme. She withdrew this application on 8 July 2021.
9. In the meantime, she submitted an application for further leave to remain under the EU Settlement Scheme on 3 July 2021. The respondent refused the application by a decision dated 10 May 2022.
10. On 18 December 2022, the appellant submitted an application for leave to remain in the United Kingdom on human rights grounds, relying upon article 8 in respect of her marriage. That application was refused by a decision of the respondent dated 29 September 2023.
Decision of the First-tier Tribunal
11. The appellant’s appeal came before the First-tier Tribunal sitting at Taylor House on 21 July 2025. The appellant was represented as was the respondent. The appellant and seven witnesses were called to give evidence and were cross-examined. The witnesses were the appellant’s husband, Muhammad Khan, her daughter, Jessica Fynn Bannor Addae, and two sisters, Betty Vanderpuye and Rebecca Fyne. Also called were a neighbour, Yousaf Mahmood, a family friend who was a witness at the appellant’s wedding, Abimbola Akanbi, and a co-worker of her husband, Afra Siyab.
12. The Judge observed that the relevant provisions of the Immigration Rules, which he was required to consider, were Section R-LTRP and Section EX of Appendix FM, and PL5.1 of Appendix Private Life to the Immigration Rules.
13. The Judge decided that whilst there was evidence of cohabitation and familiarity between the appellant and Mr Khan, he did not accept that the appellant had discharged the burden of proof placed upon her to establish that her relationship with Mr Khan is genuine and subsisting for the purposes of Appendix FM. He found that the appellant did not satisfy the twenty-year rule established under Appendix Private Life to the Immigration Rules. The appeal was also refused on article 8 grounds outside of the Immigration Rules.
Grounds of Appeal
14. The grounds of appeal in this matter were drafted by Mr Adewuyi Ario, solicitor, Apex Solicitors, 163 Rye Lane, London SE15 4TL. They are poorly drafted and have proven unhelpful to the Judges considering this matter and to the representatives.
15. The author, a solicitor, should properly be aware of the guidance provided by this Tribunal in Rai and DAM (grounds of appeal, limited grant of permission) [2025] UKUT 00150 (IAC), [2025] 1 WLR 5441, a reported decision predating the filing of the grounds of appeal. Whether a party is represented or not, they are required to identify the arguable errors of law in the grounds of appeal, adequately, so that the arguable error can be considered by a Judge. Each point of law, where there is more than one, must be clearly and succinctly identified as a numbered ground of appeal with sufficient detail so that the Tribunal and the parties are able to identify the essential issue raised by that ground. Each ground of appeal should identify succinctly, in clearly numbered paragraphs or subparagraphs, the relevant passages in the First-tier Tribunal decision and provide brief submissions providing a short explanation to support the ground.
16. In granting permission to appeal Judge Hirst was required to spend valuable judicial time identifying with clarity the grounds that were being advanced. She concluded that the following four grounds were arguable:
“3. The Appellant relies on the following unnumbered grounds of appeal:
a. The Respondent had supplied only a summary of the Appellant’s marriage interview, which the First-tier Tribunal excluded from evidence on the basis of fairness. The Appellant asserts that having excluded the sole evidentiary basis on which the Respondent doubted the genuineness of the Appellant’s relationship, the First-tier Tribunal erred in not finding that the Respondent’s case fell away;
b. The First-tier Tribunal’s treatment of the evidence and credibility assessment was materially inconsistent with the structured approach cited in paragraphs 37 and 38 of the decision. In particular, at paragraphs 41-42, the judge wrongly focused on one aspect of the evidence rather than considering the overall consistency in the accounts of the Appellant and her spouse. The judge’s treatment of the evidence of the six witnesses was cursory and the reasons given for rejecting their evidence were subjective, unreasonable and inconsistent with the evidence. The judge erred in relying on the police report, which he ought to have found pointed to the genuineness of the spousal relationship;
c. The First-tier Tribunal’s finding (§47) that the Appellant and her spouse lived together was inconsistent with the finding that they did not have a genuine and subsisting relationship;
…
e. The Article 8 consideration was vitiated by the errors above.”
17. I consider it helpful to cite Judge Hirst’s reasons for granting permission to appeal on these four grounds:
“4. It is arguable that the judge’s consideration (at paragraphs 39-49) of the evidence of the Appellant’s relationship, and the conclusion that the relationship was not genuine and subsisting, was flawed. In particular, I consider it is arguable that the judge failed to take a holistic view of the evidence, and that the conclusion that the relationship had not been established to the requisite standard was inconsistent with the findings at paragraphs 40 and 47.
5. It is arguable that the Article 8 consideration outside the Rules (paragraphs 70-76) was infected by error in the judge’s consideration of the relationship.”
18. Upper Tribunal Judge Hirst did not grant the appellant permission to appeal in respect of her challenge to the dismissal of her appeal under PL5.1 of Appendix Private Life:
“6. The judge was entitled to conclude that the Appellant had not demonstrated 20 years’ continuous residence given the lack of documentary evidence prior to 2015 and the lack of detail in the witness statements about the Appellant’s residence during that period.”
Analysis
19. At the outset I confirm my gratitude to both Mr Turner and Mr Pugh, who diligently sought to engage with the poorly drafted grounds of appeal. Mr Turner helpfully identified the headline of the appellant’s case as two propositions:
(i) The unlawful manner and approach adopted by the First-tier Tribunal to the oral evidence before it, with inadequate or no consideration given to the evidence of the eight witnesses. Mr Turner identified this proposition as being identified in ground 2(ii) to (iv).
(ii) The First-tier Tribunal’s approach to the thirty-seven pages of WhatsApp messages filed by the appellant. Mr Turner identified this proposition as being contained within paragraph 3(ii) of the grounds of appeal.
20. During the hearing, the substance of the submissions from both sides was ultimately about materiality. Though Mr Pugh did not concede any point advanced in the appellant’s appeal he accepted that at times the Judge’s reasoning may have been better expressed. He properly reminded me that the judicial reasoning only needed to be adequate and lawful and not meet perfection.
21. I proceed by acknowledging that judicial restraint should be exercised when the reasons that a judge gives for their decision are being examined: Jones v First-tier Tribunal and Another [2013] UKSC 19, [2013] 2 AC 48 per Lord Hope at [25].
22. It is long-established that a party before a tribunal is entitled to know the basis of fact on which a tribunal has reached its conclusion: R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790, per Lane LCJ at 794.
23. I have considered the First-tier Tribunal decision with care. It is obvious that the Judge endeavoured to take great care in considering the case before him. The decision runs to one hundred and three paragraphs over eighteen pages and as I have previously observed, the attendant EUSS appeal as well as the consideration of PL5.1 of Appendix Private Life have been found to contain no arguable error of law.
24. However, I conclude that the reasoning in respect of the case advanced under both Appendix FM and outside of the Immigration Rules does contain material errors of law.
25. I firstly observe [36] of the Judge’s decision:
“36. I have considered all of the evidence and submissions in the round, but I do not refer to each and every piece of evidence in this decision. I refer to what is material to my findings and where I have accepted or rejected a piece of evidence, I give my reasons for doing so.”
26. The Judge expressly stated that he had considered all of the evidence and the submissions in the round. There is no cogent evidence that this is not the case and Mr Turner did not contend otherwise. The Judge confirmed that he would not refer to each and every piece of evidence before him. There is no requirement for him to have to. However, the Judge then confirmed that he would refer to what was “material” to the findings, would confirm what was “accepted or rejected” in respect of evidence and would give his reasons for doing so. This was an express commitment in respect of his reasoning. This Tribunal can reasonably conclude that evidence not referenced in the decision was considered immaterial, and reasons would be given one way or the other in respect of material evidence.
27. The following paragraphs were forensically examined by the representatives before me:
“41. [The respondent’s] cross-examination highlighted discrepancies in [the appellant’s] and [Mr Khan’s] accounts of their marriage proposal. Both gave vague and inconsistent answers about when and where it occurred, and neither described a traditional proposal. While cultural factors may explain the informality, the lack of clarity on such a significant life event undermines the credibility of the claimed relationship.
42. There were also inconsistencies regarding [Mr Khan’s] mental health. [The appellant] and [Mr Khan] stated he was no longer on medication, while [the appellant’s] daughter, who lives with them, said he still had a diagnosis and was medicated. These discrepancies are material, given the parties’ close living arrangements and the nature of the claimed relationship.
43. Witnesses gave inconsistent accounts of [the appellant’s] travel history, including confusion over whether she had travelled to Germany. While not directly relevant to the relationship, this casts doubt on the general reliability of the witness evidence.
44. The supporting witness statements come either from individuals with limited insight into the relationship or from those closely associated with [the appellant], such as family members and acquaintances, who may have a vested interest in her remaining in the UK. The statements are brief and lack detail, and I attach limited weight to them.”
28. A judge need not laboriously set out the evidence in their decision. It is often sufficient to identify the key elements of the evidence alone, particularly in appeals where no additional witnesses are called, because the parties know what evidence was presented. It may be that if only one witness, or possibly two, were cross-examined in this case, the discrepancies and inconsistencies could be dealt with in brief terms. The difficulty for this Tribunal is that there were eight witnesses, and it is proven impossible to identify not only what the discrepancies and inconsistencies were that concerned the Judge, but more importantly on what matters the witnesses were consistent with each other. It is not said that each witness was inconsistent with the others, yet evidence in which they were consistent was given no weight. Indeed, as their consistency was not referenced, then observing [36], any consistent evidence was not assessed to be material. It is a fundamental requirement of a reasoned decision that there be adequate reasoning.
29. I have concerns with the approach adopted in [44] of the decision. It may properly be said that some individuals will have limited insight into a relationship with other persons, through the nature of their interaction, and it may be that family members have a vested interest in supporting an appellant who is a member of their family. But these two propositions do not necessarily mean that the evidence provided is incredible or untruthful. The circumstances in which the evidence comes to be presented is a part of the analysis but no more. What approach did the Judge adopt to the propositions? He simply records that the witness statements provided were brief and lacked detail, and so limited weight was attached to them. However, the Judge records that the appellant and her seven witnesses were called to give evidence, adopted their witness statements and were cross-examined. The purpose of cross-examination is for a party to test evidence, and it permits a witness to explain and expand upon the content of their witness statement. There is silence in the decision as to the witnesses’ oral evidence. They may have added little more to their witness statement. They may have been persuasive. They may have extolled the time they spent with the appellant and Mr Khan. What is clear in [44] is that there is silence in respect of the oral evidence; the contents of the witness statements alone are considered. As Mr Turner persuasively observed the Judge confirmed at [36] that he would refer to what was “material”. I can properly consider that the Judge decided that the oral evidence given in cross-examination was not material to the appeal. That is clearly erroneous. Such evidence forms part of the holistic assessment. I conclude that the failure to expressly consider oral evidence provided by several witnesses is a material error of law.
30. Another issue of concern is identifiable at [46]:
“46. A also relies on the fact that she and M were granted permission to marry following the 2017 interview. However, I have no insight into the decision-making process behind that grant, nor whether the threshold applied by the decision-maker at that time aligns with the requirements of the Rules. I therefore draw no inference from that fact.”
31. Unfortunately, the First-tier Tribunal has failed to observe that the party in possession of the document(s) is the respondent. She will be aware as to why the appellant was granted permission to marry after the interview she now relies upon as establishing that the relationship was not genuine. It may well be that the appellant has not asked for disclosure of all these documents. However, the appellant relied upon the grant of permission at paragraph 17(q) of her witness statement dated 1 May 2024, and the respondent was on notice of the appellant’s contention. In those circumstances there is a lack of adequate reasoning as to why no favourable inference could be drawn from the respondent’s decision to permit the appellant to marry Mr Khan.
32. Mr Turner’s second challenge is directed to [40] of the decision:
“40. The WhatsApp messages span from July 2022 to September 2023, with the application made in December 2022. They include sexually explicit exchanges, domestic coordination, and playful banter. On one view, the messages suggest intimacy and familiarity consistent with a romantic relationship. On another, they resemble the dynamic of intertwined cohabitants managing a shared household. The tone at times appears stylised or exaggerated, and the messages were compiled for the appeal, raising questions about spontaneity and authenticity. I accept the WhatsApp messages are genuine and consistent with familiarity between A and M. However, taken alone they do not establish the quality of relationship required under the Rules. Such exchanges demonstrate familiarity and affection, but absent corroborative evidence of long-term commitment, I attach limited weight.”
33. This paragraph was subjected to considerable examination before me. For a time, there was discussion as to the relevance of the sentence, “The tone at times raising questions about spontaneity and authenticity.” Was this a finding that the WhatsApp messages had been curated to advance a false case? Ultimately, Mr Turner accepted Mr Pugh’s observation that this was, at most, an inelegant sentence that need not have been included because ultimately the First-tier Tribunal did not make such finding. What the Judge did find was that the messages were genuine and consistent as to establishing familiarity between the appellant and her husband, however taken alone, he considered that they did not establish the quality of relationship required under the Rules.
34. Reading [40] as a whole, I find that there was a material error in the approach adopted, namely a failure to adopt a holistic approach when considering the messages. Whilst it may have been reasonable for the Judge to conclude that the messages did not by themselves establish the required quality of relationship, the Judge proceeded to consider the WhatsApp messages in granular fashion, divorced from other evidence, and then found them to have little weight because of a lack of corroborative evidence of long-term commitment. It is only after this paragraph that the First-tier Tribunal proceeds to consider the evidence of the eight witnesses who contended that there is a long-term commitment between the appellant and Mr Khan. Such materially erroneous approach proceeds to infect the decision, as identifiable at [48] of the decision where, when considering the evidence in the round, the WhatsApp messages are identified as having limited probative value. This conclusion solely flows from the materially erroneous approach adopted at [40].
35. I find that having considered the material errors identified above, they adversely impact the Judge’s consideration of the article 8 appeal advanced under Appendix FM and outside of the Immigration Rules. Consequently, the only reasonable course is to set aside the article 8 decision, save in respect of PL5.1 of Appendix Private Life and the judicial assessment that the appellant had not demonstrated twenty years’ continuous residence in this country.
Remaking of the Decision
36. I observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I have considered with care where this decision should be remade. I note that the appellant will call several witnesses in addition to herself. In the circumstances the nature of the fact-finding investigation is such that the most appropriate venue for the remaking of this appeal is the First-tier Tribunal.
Notice of Decision
37. The decision of the First-tier Tribunal sent to the parties on 21 July 2025 involved the making of an error on a point of law and I set aside the decision concerned with human rights (Appendix FM to the Immigration Rules and article 8 outside of the Immigration Rules) pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
38. The set aside paragraphs of the First-tier Tribunal decision are: [39]-[49], [57] and [60]-[76].
39. This matter is remitted to the First-tier Tribunal sitting at Taylor House. No findings of fact are preserved.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 January 2026