Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005052
First-tier Tribunal Nos: EU/50918/2024
LE/04176/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

Emmanuel Osigbemeh Otse
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Humphrey-Ndubisi, Drummond Miller LLP
For the Respondent: Mr M Pugh, Home Office Presenting Officer

Heard at Field House on 5 February 2026

DECISION AND REASONS
1. The appellant is a citizen of Nigeria who appeals against the decision of the First-tier Tribunal Judge, promulgated on 22 September 2025, dismissing his appeal against the refusal of an application to remain as a spouse of a relevant EEA national under Appendix EU of the Immigration Rules dated 22 January 2024.
2. The permission to appeal was granted by First-tier Tribunal Judge Saffer on 28 October 2025 on the following grounds:
“It is arguable that the reasons for finding it is a marriage of convenience do not adequately deal with the finding in [17] regarding the chronology.”
The First-tier Tribunal decision
3.
4. The appellant did not attend the hearing nor was he represented; however the respondent was represented by a Presenting Officer. At [2] the judge noted the appellant was not present or represented without explanation and that as both parties had been notified in writing of the hearing date and time, it was in the interests of justice to proceed with the hearing. The judge went on to consider the issues identified by the respondent in refusing the application and at [4] – [6] noted the appellant and sponsor had failed to attend four interviews and whilst the onus of establishing the marriage was one of convenience that rested with the Secretary of State with them being entitled to request an individual to attend for an interview, however mere failure to attend without more was not sufficient to draw an inference that the marriage was one of convenience.
5. At [7] the judge noted and accepted the explanations provided about the failure to attend the interviews. At [8] the judge noted the respondent’s concerns that the appellant’s visa application had failed to record he was married at the time he applied for his student visa. However, in considering the explanation provided by the appellant concluding that he used an agent in Nigeria who would not, the judge found, be subject to same regulation as those in the United Kingdom was willing to accept the explanation provided for the error.
6. At [9] the judge found that the assertion that the appellant’s partner was married to someone else was unsupported by any evidence and from [10] – [14], the judge considered the evidence provided to support the claims that there was a genuine relationship between the appellant and the sponsor during the relevant period. He noted other evidence, such as bank statements, did not add to the reliability of the appellant’s claim to have been living at a specific address but that the tenancy agreement was powerful evidence of cohabitation for the appellant and sponsor as well as the TV licence, which was in the sponsor’s name but the payment details in the appellant’s bank statements [15].
7. However, at [16] the judge went on to conclude that there was no evidence as to either the appellant or the sponsor working, which would have been easily obtainable and the absence without explanation had a significant negative impact on the reliability of the claim that they were in a genuine marriage. He further considered that there could be additional evidence which may have titled the balance in the appellant’s favour but overall he was not satisfied that they were cohabiting in a genuine and subsisting marriage and that there was evidence that the appellant had been living at a different address.
8. At [17] the judge went on to consider that whether the marriage is a genuine and subsisting one was not the test rather whether the appellant had entered a marriage of convenience for immigration benefit. He went on to conclude that the sponsor had married two years before the appellant applied to come to the UK. When he applied he did so as a student and not in reliance with his Portuguese citizenship, such that this was not the actions of someone who had married to obtain immigration benefit.
9. At [18], the judge noted the appellant and sponsor had failed to attend the hearing and they had sufficient time before the hearing was listed to provide evidence to answer the concerns raised by the respondent insofar as the allegation of there being a marriage of convenience. The judge considered the Secretary of State had established by a short margin that there was a marriage of convenience.
Grounds
10. The grounds of appeal highlight first that the judge had imposed a standard of proof that seemed to impose a higher burden on the appellant having accepted at [16] evidence of cohabitation was produced. He required further documentary evidence. In particular at [16], in the absence of employment evidence, he found that the reliability of the couple being in a genuine marriage was called into question. It was submitted that this was an irrelevant consideration. Second, it was argued that the judge’s conclusions at [19] were inconsistent with the concept of a marriage of convenience as per Papajorgi [2012] UKUT 00038 which required such a marriage to be “contracted for the sole or decisive purpose of gaining admission to the host state”.
11. It was highlighted that the judge had found at [17] the appellant was married before entry to the UK and did not seek to enter on the basis of his marriage such that his actions could not be considered as a person who married for the sole or decisive purpose for gaining admission. His conclusion was therefore inconsistent with the various subsequent fact-findings such that he had erred in law. Third, the grounds raised failure to give adequate reasons for the conclusion that the appellant’s marriage was one of convenience.
The hearing
12. I had before me the composite bundle of 164 pages and Mr Pugh confirmed there had been no Rule 24 served.
13. At the hearing I received helpful submissions by Mr Humphrey-Ndubusi and Mr Pugh, all of which are a matter of record. On behalf of the appellant it was submitted that the judge’s findings from [7] – [15] were positive, resolving the issues raised by the respondent in the refusal decision that the marriage was one of convenience.
14. At [16] he fell into error by requiring them to produce evidence in relation to their employment. It was unclear why the judge took this approach, which was inconsistent with the previous findings on the documentary evidence produced. His findings were inconsistent with the findings at [17] and that he had therefore erred in law. Reliance was placed on the cases of Sadovska [2017] UKSC 54 at [29], Rosa v SSHD [2016] EWCA Civ 14 at [41] and Agho [2015] EWCA Civ 1198 and in written evidence Papajorgji [2012] UKUT 38.
15. On behalf of the appellant it was emphasised that the judge's findings until [17] were clear in that the marriage was not one of convenience and therefore his concluding paragraphs were at odds with the substance of the decision.
16. On behalf of the respondent, Mr Pugh submitted that the judgment was unusual but balanced and the judge found of the four issues raised by the respondent, three in favour of the appellant. Further with reference to the standard of proof he had not erred, but appeared to have imported a specified evidence requirement. However, in any case, the judge looked at the case on its facts and it was clear from the paperwork provided, including the marriage certificate that the appellant and the sponsor were working in occupations and he simply highlighted a glaring omission in terms of the evidence of their work. Further, it was of note at [16] of the decision the judge referenced a different address for the appellant seen in medical records at page 73 and 87 of the composite bundle. Further that in the decision he worded each paragraph as conclusive but read as a whole it appeared that the judge had not made his final decision until the conclusionary paragraph at [16] and [19]. In all the circumstances he submitted that the Tribunal should be slow to interfere.
17. Mr Humphrey-Ndubisi in response submitted that the judge’s conclusions were divorced from his findings and it was clear the judge had concluded that the marriage was not one for the purposes of an immigration benefit which ought to be conclusive of the issue of marriage of convenience. Insofar as disposal was concerned, he submitted that the decision ought to be remade preserving all findings except [16] and [19].
18. At the end of the hearing I reserved my decision.
Findings and Analysis
19. I emphasise the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal, particularly when the fact-finding judge has considered evidence from a variety of sources and has undertaken an evaluation of it, set in the applicable legal framework. I remind myself that no decision will be perfect and that such decisions must be read holistically and sensibly and that there is no requirement to give reasons for reasons.
20. At the outset I note the Supreme Court guidance in Sadovska v SSHD [2017] UKSC 54, which highlighted:
For this purpose, “marriage of convenience” is a term of art. Although it is defined in the Directive and the 2009 Communication as a marriage the sole purpose of which is to gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a more flexible approach, in which this must be the predominant purpose. It is not enough that the marriage may bring incidental immigration and other benefits if this is not its predominant purpose [29]
21. With these principles in mind I conclude that the judge materially erred in law as the reasons given through the decision, do not demonstrate how the adverse conclusion followed from his own findings. At [4]–[7], the Judge correctly directed himself that the Secretary of State bore the burden to prove a marriage of convenience and that non‑attendance at interviews without more could not justify that inference. Further at [8] the judge accepted the appellant’s explanation for failing to record his marriage on the student visa application and at [9] that the allegation that the appellant’s partner was married to someone else was unsupported by any evidence. Finally there was sufficient documentary evidence to demonstrate cohabitation [12] – [15].
22. At [16], the judge introduced two new factors said to undermine the relationship: (a) the absence of employment evidence and (b) the appellant having been recorded at a different address. The judge did not explain why those factors outweighed evidence it had already found persuasive at [7] – [15] particularly given the cohabitation evidence it had already described as “powerful”. I find therefore the findings at [16] disclose an internal inconsistency when considered against the earlier findings of the judge.
23. More importantly the judge’s finding at [17] that the appellant’s decision to enter the United Kingdom as a student despite being married was not behaviour indicative of seeking an immigration advantage was plainly relevant to the core issue of whether the marriage was one of convenience. That favourable chronological finding lay at the heart of the assessment yet it cannot be reconciled with the later conclusion that the respondent had established a marriage of convenience by a short margin. The judge did not give adequate reasons explaining why the finding at [17] was not determinative particularly when taken together with the other positive findings. In the absence of such reasoning the conclusion reached is unsupported by the findings that preceded it and the decision therefore contains a material error of law.
Disposal
24. Mr Humphrey‑Ndubisi made submissions on disposal in the event that I were to find an error of law. He submitted that the findings of the judge, save for [16] and [19], ought to be preserved. Mr Pugh did not express a view on disposal. I have considered the position of the parties in light of the general principle in the Senior President’s Practice Statements para 7.2 and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)).
25. Given the nature of the errors and that live evidence on relationship and purpose is likely to be central if the allegation is maintained the proper course consistent with the Practice Statement 7.2 is to remit to the FtT for a de novo hearing before a different judge with no findings preserved.
Notice of Decision
26. The decision of the First-tier Tribunal did involve the making of an error of law and shall be set aside to be remade by another judge de novo in the First-tier Tribunal.

Signed

S Iqbal

Deputy Judge Iqbal of the Upper Tribunal
Immigration and Asylum Chamber

Date 18th March 2026