Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005349
First-tier Tribunal No: EU/57555/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

FATHIYA MOHAMED IBRAHIM AHMED
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Murphy, Counsel instructed by CAN Solicitors
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on 16 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is an appeal brought with limited permission restricted to grounds 1,2,3 and 7, by the Appellant against the decision of the First-tier Tribunal dated 7 October 2025 in which the Appellant’s appeal against the refusal of a family permit pursuant to the EU Settlement Scheme was dismissed.
2. The Appellant’s application for a family permit as the spouse of an EEA Citizen was refused on the basis that their marriage was one of convenience.
3. The First-tier Tribunal Judge (“the Judge”) set out the correct legal framework [5] – [7]. The correct issue before the Judge was whether the marriage between the Appellant and the sponsor is a marriage of convenience. The Judge concluded that there were numerous discrepancies in the marriage interview, she found neither the Appellant nor the Sponsor were credible witnesses and ultimately dismissed the appeal on the basis that this is a marriage of convenience [34].
Summary of grounds and submissions
4. I heard submissions from the representatives which are a matter of record.
5. The Appellant advanced seven written grounds of appeal but as above the grant of permission was limited to grounds 1,2,3 and 7. These are summarised as follows:
(1) Misstatement of the legal burden of proof
(2) Misdirection as to the shifting burden of proof
(3) Failure to consider the evidence in the proper sequence and in the round
(7) Procedural unfairness – a point was taken against the Appellant that was not put at the hearing.
6. Taking Grounds 1 and 2 together, the Appellant contends that the Judge misstated the burden of proof and misdirected herself as to the shifting burden at [11]:
“I find that there were numerous discrepancies raised in the marriage interview, such as whether the couple gave each other rings upon their marriage, the different answers given by each of them in respect to the sponsor’s work, where he lived, when the sponsor saw his children in Somalia, and whether he is the youngest of his siblings or the second eldest. I find that the initial burden on the respondent has been discharged. The burden then shifts to the appellant to demonstrate that the marriage is genuine and subsisting.”
7. The Appellant’s case is that the legal burden remains with the Respondent throughout to demonstrate that a marriage is one of convenience. Whilst the Appellant may have an evidential burden, the legal burden does not shift to the Appellant at any point. It is a clear misdirection that the Appellant must prove that the marriage is genuine and subsisting.
8. In Ground 3, the Appellant contends that the Judge failed to make a global assessment of the evidence and made adverse credibility findings before then considering additional evidence.
9. Ground 7 alleges that the Judge took a point on the age gap between the couple without this forming part of the Respondent’s case or being put to the Sponsor at the hearing, depriving him of an opportunity to respond resulting in unfairness.
10. Mr Simpson for the Respondent directed my attention to the correct legal principles in relation to the burden of proof being set out at [5] and [7] of the determination. He said that the Judge was mistaken in way she had expressed that the burden shifts to the Appellant and the Judge did misstate that the burden shifts to the Appellant to show the marriage was genuine and subsisting, he urged me to consider the decision as a whole to assess how the Judge approached the evidential and legal burden. He submitted that upon analysis the Judge had properly applied to the test as per Papajorgji [2010] UKUT 30.
11. Ground 3, Mr Simpson said was unfounded because the Judge had accepted some credible explanations advanced by the Appellant and the evidence was considered in a proper sequence.
12. Ground 7 he said was immaterial because there were so many other inconsistencies in the evidence identified throughout the decision that the age gap issue would make no difference to the outcome.
13. The parties agreed that if I found an error of law the appeal would need to be remitted to the First-Tier Tribunal to be considered a fresh.
Decision
14. The Judge does set out the correct legal framework as to the approach to be taken to the assessment in an appeal concerning an allegation of a marriage of convenience by reference to Papajorgji [2010] UKUT 30, Sadovska and another v SSHD (Scotland) [2017] UKSC 54, Rosa v SSHD [2016] EWCA Civ 14 and Saeed (Deception – knowledge – marriage of convenience) [2022] UKUT 00018 (IAC) [5]-[7]. However, I am just about persuaded that when the Judge came to apply those principles in this appeal, she misdirected herself. The Judge consistently repeated the incorrect test. The Judge considered the issue in the case to be whether the marriage was genuine and subsisting [9], [19], [34] and that that was an issue for the Appellant to prove [11]. The subsisting nature of the relationship is irrelevant to whether the marriage was one of convenience at the time it took place. The subsisting nature of the relationship is not a legal test that the Appellant bears the burden of proving, in contrast to the partner requirements under Appendix FM of the Immigration Rules. The Judge plainly had in mind whether the relationship was subsisting was relevant to her assessment and that the Appellant had to satisfy her of the subsistence of the relationship. Even if the Judge was correct to consider whether the relationship was genuine as per Saeed as submitted by Mr Simpson, she still repeatedly said the test was whether it was subsisting which is incorrect.
15. The Judge did not clearly articulate at [11] or thereafter in the decision that she understood that it was only the evidential burden that shifted to the Appellant and not the legal burden, which remained on the Respondent throughout. I am not satisfied that the Judge applied the correct approach to the legal test and the burden of proof.
16. For these reasons, Grounds 1 and 2 succeed and require the decision to be reconsidered.
17. I find that there is less force in Grounds 3 and 7. There is no complaint about the factual findings that went against the Appellant but rather that the Judge did not consider all the evidence in the round and balance the negative findings against the positive. However, the Judge did note the Appellant’s submission about the overwhelming number of consistent answers given at interview [19] and specifically refers to having taken the evidence in the round [34]. What the Judge did was identify the most material and relevant issues arising out of the evidence. Some of those were quite powerful, such as the Appellant’s reliance on COVID-19 restrictions as an explanation as to why they had a proxy marriage did not withstand scrutiny because the marriage was in 2019 and COVID-19 restrictions did not begin until March 2020 [18]. There is no error in that approach per se, it would have helped the Appellant to understand why she lost if the Judge had conducted a more explicit global assessment of the evidence and explained why the negative findings outweighed the positive ones. However, in making the negative findings the Judge had the wrong test in mind, as explained above. A number of the Judge’s findings go to the issue of the subsisting nature of the relationship [24], [25], [27], which further demonstrates that the Judge applied the incorrect test.
Notice of Decision
18. The appeal is allowed.
19. The decision of the First-tier Tribunal involved the making of material errors of law and is set aside with no findings preserved.
20. The appeal will be remitted back to the First-tier Tribunal for remaking to be heard by a different judge.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 April 2026