Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos:
UI-2025-005224, UI-2025-005227
UI-2025-005228, UI-2025-005229
First-tier Tribunal Nos:
EU/55717/2024, EU/55716/2024 EU/55719/2024, EU/55720/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15th April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

ALFRED TAKYI BOAMAH
AGNES BOAMAH
COLLINS BOAMAH GYAN
OLIVIA KONADU BOAMAH
(NO ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms J Javaherian, Counsel instructed by Solomon Shepherd
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at Field House on 5 February 2026

DECISION AND REASONS
1. The appellants appeal with permission against the decision of the First-tier Tribunal (FtT) promulgated on 28 September 2025, dismissing their appeals against the decisions of the Secretary of State made on 18 June 2024 to refuse to issue them with family permits under Appendix EU (Family Permit) to the Immigration Rules on the basis that they are children, under the age of 21, of the spouse of a relevant EEA citizen.
The Judge’s Decision
2. The appellants were represented by Counsel, Mr Swain, additionally in attendance were the sponsor, Mr Kubi, step-father of the appellants and Ms Forkuo, the mother of the appellants. They were provided with a Twi interpreter. At [7] the Judge recorded, the Tribunal had been notified in advance that no Presenting Officer would be available, therefore there was no attendance on behalf of the respondent. The hearing therefore proceeded in the respondent’s absence with evidence from the sponsor and the appellants mother.
3. Overall the judge was not satisfied that the appellants had proven they were the stepchildren of the sponsor [12][17]. Insofar as the evidence of the mother was concerned the judge concluded at [13(a)] that her written evidence incorrectly stated all children were born before she met the sponsor which conflicted with Olivia’s date of birth, three years after their marriage. The judge found she had introduced a new account in oral evidence concerning an extramarital relationship leading to Olivia’s birth with her explanations for earlier inaccuracies being rejected [13(b)–(c)]therefore that she was an unreliable witness. At [13(d)] the judge did not find credible, the mother’s claims raised for the first time, that James Boamah remained in contact with the children and had not expressed a position on their removal to the UK. Further, her account recorded at [13(e)] concerning false documentation, including reliance on a third party and a late claim of illiteracy, was found to be inconsistent, opportunistic, and lacking credibility.
4. In relation to the sponsor’s evidence the judge concluded at [14(a)] that he was unable to explain the failure to check the false documentation provided on behalf of the appellants previously, including documents which listed him as the birth father of two of the children. Further, at [14(b)] that for the first time he like the mother provided evidence about the extra-marital affair with James Boamah. The judge concluded therefore that the evidence whilst consistent with the mother’s seemed rehearsed.
5. Taking the oral evidence together, the Judge found that both witnesses had introduced new material evidence late and in a clumsy fashion, with the mother materially inconsistent with her own written evidence in an attempt to disguise the true circumstances surrounding the children [15]
6. At [16] the judge although DNA evidence confirmed maternity, no paternity DNA evidence was produced despite its relevance and availability, particularly given inconsistencies in earlier documentation naming different fathers [16(a)]. Further, at [16(b)] the judge found the weight to be attached to the DNA reports was reduced, as maternity DNA evidence relied on passport documentation obtained using birth certificates which were themselves of concern due to the prior provision of false documents
7. At [16(c)] the judge found the birth certificates to be unreliable for the following reasons.
(i) The certificates for Agnes and Alfred recorded a registration date of 10 August 2016, identical to that on an acknowledged false certificate [16(c)(i)–(ii)]
(ii) No independent evidence from the registrar was provided to confirm any alternative registration dates [16(c)(iii)]
(iii) The registration dates for Collins and Olivia were much closer to their births, casting further doubt on the delayed registrations for Agnes and Alfred [16(c)(iv)]
(iv) Objective evidence indicated that late registration was not reliable evidence of a family relationship [16(c)(v)]
(v) No evidence was provided from James Boamah or the registrar, despite its availability [16(c)(vi)]
8. At [17] the judge concluded therefore given the reduced weight to the documentation and inconsistencies in the oral evidence the appellants had failed to discharge the burden of proof on them to demonstrate their relationship to the sponsor. At [18] the judge The Judge considered section 55 of the Borders, Citizenship and Immigration Act 2009 and found that the appellants were cared for by their maternal aunt in Ghana, had been since 2021, and that no welfare concerns were identified. The mother could continue to visit or return to Ghana if she chose. The appeals were accordingly dismissed.
The Grounds of Appeal
9. The grounds essentially make the following points. First, that there was an irrational analysis of the evidence. Particularly that there was clear uncontroversial evidence that Ms Forkuo was the mother of the appellant children specifically DNA results confirming she was the biological mother and by failing to attach weight to this demonstrated a material error of law. Further, it was contended that the DNA evidence should have been treated as conclusive, with the consequence that the appellants qualified as children for the purposes of Annex 1 and in the circumstances where it was not disputed that Ms Forkuo was the spouse of a relevant EEA citizen, it was submitted that the appellants ought to have succeeded in their appeals
10. The second distinct issue is with reference to the findings on the best interests of the children. At [18] of the determination it was submitted the judge appeared to accept Ms Forkuo was the mother of the appellants when she considered that they ought to remain living in Ghana with their maternal aunt. This was inherent contradiction in the judge’s analysis in respect of whether she was actually the mother of the children.
The Grant of Permission
11. The First-tier Tribunal granted permission on 11 November 2025, finding that there was an arguable error of law in the treatment of the DNA evidence. In particular, it was considered arguable that the Judge had taken into account immaterial considerations when assessing the DNA reports, including the absence of paternity evidence, which was not part of the applicable test. Further, it was considered arguable that the Judge’s conclusions under section 55 had impermissibly coloured the assessment of the documentary evidence, when section 55 was not in issue and the sole legal question was whether maternity had been established. In granting permission the judge further noted that in absence of the Presenting Officer it was not clear whether the logical conclusion of the reasoning adopted by the judge was put to the witnesses which was that:
“some other people posed as either the Appellants and/or the mother to give rise to a DNA report that showed the biological connection (especially given that the review states that the DNA report is not on the Respondent’s case thought to be non-genuine) and how that was possible in view of the fact that passports with photographs were presented showing that the DNA was that of the person on the photograph (even if the ID documents had been obtained on false information). It is further arguable that it was an error to focus unduly on problems with the birth certificates rather than what the vitiating factors in the DNA reports were”.
The Hearing
12. At the error of law of hearing, I received helpful submissions from both Ms Javaherian and Mr Pugh, all of which are a matter of record. Ms Jaheverin emphasised the approach of the judge was irrational in light of the DNA evidence and that the DNA report was conclusive in proving the maternity of the appellants. She highlighted the review at [15], acknowledged the DNA reports provided were issued by Anglia DNA and were not considered non-genuine, although it was noted that they could not be relied on as a result of the false birth certificates submitted by A1 and A4. In relation to what was deemed as ground 2 and the best interests of the children, it was highlighted that the judge had failed to conduct a proper analysis in relation to the temporary arrangements of placing the children with their aunt being made permanent which was not feasible and in these circumstances this amounted to a material error of law.
13. Mr Pugh relied on the Rule 24 and emphasised that as there were false documents submitted and relied on in obtaining passports for the appellants which, were in turn presented by the appellants in their DNA testing, the judge was right to conclude the DNA evidence was not reliable. He highlighted that irrationality required a high threshold and the judge’s lengthy reasoning as to why the sponsor and witness lacked credibility was sound. He stated it was unfortunate that the judge at [16(a)] had led with paternity but quite clearly he went on to look at the reliability which encompassed the issue of the passports and false documentation as also highlighted at [13(b)]. He further relied on Hima [2024] EWCA Civ 680 at [51] and Maheshwaran [2002] EWCA Civ 173 at [3] and submitted that whilst Section 55 was phrased ambiguously it was simply a way in which the judge had met the appellants on their own case.
14. In response Ms Javaherian maintained her position and further highlighted the appellants explanation which was set out in a letter they had previously submitted with their application made in 2023, as highlighting an explanation for the previous false documents. She further submitted the determination did not engage with the strength of the evidence.
15. At the end of the hearing I reserved my decision.
Analysis and Findings
16. 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. With this in mind, I find that the judge has materially erred in law for the following reasons.
17. The sole issue to be decided was whether the appellants qualified as “children” for the purposes of Annex 1, by virtue of their relationship through their mother’s marriage to a relevant EEA national. There is an internal tension in the judge’s findings in respect of the DNA evidence at [16] and that issue. Whilst, the judge accepted that the DNA reports confirmed maternity as between Ms Forkuo and all four appellants [16(a)], he nevertheless reduced the weight of that evidence by reference to concerns relating to paternity. That approach is difficult to reconcile with the DNA evidence, which was determinative of Ms Forkuo being the biological mother of the appellants and in turn the appellants meeting the definition of “children” under Annex 1.
18. Once maternity is established, the legal definition of “child” is met as a matter of law, absent any challenge to the marriage. The judge’s reliance on paternity considerations was therefore irrelevant to the sole factual issue to be resolved that is whether the appellants were the children of someone married to a relevant EEA national.
19. The respondent’s position was that as the birth certificates of Agnes and Olivia, were deemed unreliable and used to obtain passports which were submitted for the DNA sampling then the DNA evidence as a whole could not be relied upon.
20. At [16(b)] the judge’s findings in turn were to reduce the weight attached to the DNA reports on the basis that the passports used for identification were obtained using birth certificates which were said to be of concern, given the prior provision of false documents.
21. However, the judge failed to address the reliability of Alfred’s and Collins’ birth certificate, which were not challenged or found to be fraudulent (see [16(c)(iv)]. The concerns identified related only to the birth certificates of Agnes and Olivia, found to be fraudulent in a previous application and in respect of which the sponsor had advanced an explanation. The judge failed therefore to resolve why concerns arising from those documents justified discounting the reliability of all the birth certificates, nor how that reasoning undermined the DNA evidence as a whole.
22. The only specific concern identified by the judge related to the dates of registration for Collins and Olivia which were closer in time to their respective births and in light of background evidence were said to cast doubt on the reliability of the significantly later registrations for Agnes and Alfred. However, without the core resolution of the evidence in relation to the other two appellants on reliability of their birth certificates and passports I find the judge has materially erred in his approach by discounting the evidence in its entirety.
23. Further, as noted in the grant of permission, it is unclear whether the implied concerns that the DNA samples may not have been provided by the appellants or Ms Forkua, was ever put to the witnesses at the hearing. I have considered Hima at [51] namely that whether a failure to alert an appellant to an issue upon which the First-tier Tribunal proposes to rely amounts to procedural unfairness depends on the circumstances of the particular case. I find that this is one of those cases. Where the issues identified above, formed the central basis for discounting the DNA evidence, the judges’ failure to put his concerns to the witnesses deprived them of a fair opportunity to address a principal controversial issue and was therefore procedurally unfair.
24. My findings are further reinforced by the fact that the respondent accepted in their review at [15] and at the hearing before me that the DNA reports were not alleged to be non-genuine and were capable of being relied on. Whilst, the respondent sought to rely on Tanveer Ahmed [2002] UKIAT 00439 in their review and framed a challenge to the reliability of the identity documents, in substance the issues raised was in fact one of genuineness, namely whether the identity evidence provided related to the appellants as claimed. This is an issue that has not clearly been resolved by the judge.
25. In these circumstances, where the DNA evidence was accepted as genuine, with no findings that the samples did not belong to the appellants, then the judge’s conclusions disclose an internal inconsistency and a failure to rationally explain why this determinative evidence was disregarded. For these reasons the conclusions in respect of the DNA evidence cannot safely stand.
26. I note the respondent in the Rule 24 at [5] rely on the judge having attached little weight to the samples provided for the DNA test. However, that submission proceeds on the basis that the underlying identity documents were fraudulent and therefore incapable of supporting the DNA evidence. For the reasons set out above the approach was not properly reasoned or resolved by the judge.
27. In those circumstances, I am satisfied that the judge’s conclusions cannot stand and that he materially erred in his conclusions having taken into account irrelevant considerations and having failed to give adequate reasons for rejecting determinative evidence, which were material to the outcome of the decision. I am minded to set aside the decision in full without preserving any findings of fact.
Disposal
28. Having set aside the decision as involving a material error of law, I must decide where the substantive decision should be taken afresh. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides: 
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that: 
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or  
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 
29. When I ask myself what fairness demands and bear in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that remitting the matter to the FtT is the correct course. Fairness requires that both parties are afforded a full and effective opportunity to present their case. The respondent was not present on the previous occasion and given the nature and breadth of the issues that have arisen in this case, it is appropriate that the matter be remitted so that the respondent may clarify its case. As presently articulated, the respondent’s position is unclear. Although the DNA evidence is not said to be non-genuine, it is said not to be capable of reliance. In the absence of further explanation, that reasoning is unsatisfactory. The First-tier Tribunal is the proper forum to undertake the necessary fact-finding and to hear the evidence in the round.

Notice of Decision
30. The decision of the FtT involved a material error of law. I set aside the decision without preserving any findings of fact. The appeal is remitted to the FtT to be heard de novo before a judge other than the judge who previously dismissed the appeal.

S Iqbal

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7th April 2026