Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2025-005917
First-tier Tribunal No: EA/02530/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 March 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA
Principal Resident Judge

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BEHAR GJINI
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation
For the Appellant: Mr N Wain, Senior Home Office Presenting Officer
For the Respondent: No appearance by or on behalf of the respondent

Heard at Royal Courts of Justice (Belfast) on 24 March 2026
Decision and Reasons
Introduction
1. The appellant in the appeal before me is the Secretary of State for the Home Department (“SSHD”) and the respondent to this appeal is Mr Behar Gjini. However, for ease of reference, in the course of this decision I adopt the parties’ status as it was before the FtT. I refer to Mr Behar Gjini as the appellant, and the SSHD as the respondent.
2. The appellant is a national of Albania. On 29 September 2024 he made an application under the EU Settlement Scheme as the spouse of Hristina Borislavova Vanchova (“the relevant sponsor”), a national of Bulgaria. The application was refused by the respondent on 5 November 2024. The respondent noted the appellant had provided a Bulgarian marriage certificate as evidence of his marriage to the relevant sponsor, together with a certified translation of the document. The respondent said:
“…there are a number of inconsistences with this evidence. Home Office records confirm that your EEA citizen sponsor has previously sponsored another spouse on 15 December 2023 confirming they entered into a marriage on 04 March 2023.
This contradicts the information and documents you have submitted in your current application and therefore casts doubt upon your relationship.
As a result, I am not satisfied, based on the evidence you have provided in isolation, that you are a 'family member of a relevant EEA Citizen..”
3. The appellant appealed to the First-tier Tribunal (“FtT”) under the Immigration (Citizens Rights Appeals) (UK Exit) Regulations 2020 (“the 2020 Regulations”) and elected to have the appeal decided on the papers. However on 18 March 2025, it was directed that because of the issues in the appeal, there should be an oral hearing. The appeal was listed for hearing at the Nottingham Justice Centre before First-tier Tribunal Judge Chapman (“the judge”) on 24 September 2025.
4. The appellant did not attend the hearing before the FtT and was not represented. The judge noted that on the morning of the hearing a letter was received from the sponsor claiming that their child was unwell and she was unable to attend the hearing. The sponsor invited the Tribunal to determine the appeal on the evidence submitted. The judge considered whether to proceed in the absence of the appellant and decided, without objection from the Presenting Officer, that it was in the interests of justice to proceed in the absence of the appellant and sponsor.
5. The appeal was allowed by the judge for reasons set out in a decision promulgated on 25 September 2025. The judge noted the reasons given by the respondent for refusing the application. At paragraph [8] of the decision, the judge said:
“In the response to the appeal, the sponsor asserts that she and the Appellant are validly married as shown by the marriage certificate, that they have lived together as husband and wife and that they now have a child together. The sponsor states that she has not sponsored another person, explaining that she lost her passport in Leicester on 9 February 2023 and that another unknown person must have used her details in a fraudulent application which is the one referred to in the refusal letter.”
6. The judge referred to the evidence that was before the FtT that included a “bundle of evidence provided by the sponsor comprising of 45 pages.”. The judge noted the bundle “…contains statements by the Appellant and sponsor and further evidence in support of the appeal…”.
7. The judge recorded that it had become apparent from the judge’s summary of the appellant’s response to the appeal, that the Presenting Officer did not have a copy of the appellant’s bundles and so was unaware of the matters the judge had outlined. The Presenting Officer explained that it was likely that as this appeal was initiated at the Hatton Cross hearing centre but then transferred to Birmingham, the appellant’s bundle had not been passed on to the relevant Presenting Officer’s Unit. The judge considered the length of time the appeal had been outstanding and having considered the possible explanation for the Presenting Officer not having the bundle, said that any prejudice to the respondent by not adjourning the appeal was caused by the respondent and no-one else. The judge decided that fairness to the appellant required that the judge proceed with the appeal as requested.
8. The Presenting Officer applied to admit evidence in support of the claims made in the respondent’s decision concerning the appellant’s relationship with the sponsor. The judge determined that it would be unfair for the appellant to admit the further documents that the Presenting Officer sought to rely upon. The judge records at paragraph [26] of the decision:
“In summary, I decided not to adjourn and not to admit the documents. Mr Lee asked for time to take instructions as to whether to seek an adjournment. He indicated that there was other evidence which might be relevant but which had not yet been disclosed and that he needed to take instructions before he did this. I decided that nothing could be gained from this, I refused his request. Mr Lee suggested I was being ‘unreasonable’. I disagree. I find that I (sic) has been the Respondent’s conduct of the application and appeal which has not been reasonable. I directed that the hearing proceed.”
9. The judge heard submission from the Presenting Officer and reserved the decision. In the decision, the judge refers to the evidence that had been provided by the appellant. The judge said:
“37. Setting aside for one moment the issue raised by the Respondent, I find that the Appellant and sponsor have provided sufficient evidence to show that they have acted in a way which supports their claim to be married and which is inconsistent with the assertion made by the Respondent that the sponsor is or has been married to someone else.
38. For example, there is the marriage certificate itself, proof of having had a child together, proof of having bought a house together, and evidence that, since the Appellant returned to Albania he has been financially supported by the sponsor. Further, the Appellant and sponsor have credibly explained, supported by documents, that the sponsor lost her passport which gives rise to the possibility that it was fraudulently used in another application.
39. The issue raised by the Respondent is whether the Appellant is the spouse of the sponsor. As I have found, the Respondent has provided no evidence to show they are not. I remind myself that the burden is on the Appellant to demonstrate that he is the spouse, but in my judgement, he has done this to the required standard of proof.
40. For these reasons, I find that the Appellant is a family member, namely the spouse, of the EEA sponsor. I therefore allow his appeal.”
The Appeal to the Upper Tribunal
10. The respondent claims the decision of the FtT judge is tainted by a procedural irregularity that is material to the outcome and fairness of the appeal proceedings. It is said that the appellant did not serve the bundle he relied upon, on the respondent prior to the hearing of the appeal. The appellant’s bundle was only provided to the respondent at the hearing, after the Presenting Officer had informed the judge that he had not had sight of the appellant’s bundle prior to the hearing. The respondent claims the judge erred in criticising the respondent for failing to check with the Tribunal whether the appellant had served a bundle prior to the hearing. It was the appellant’s responsibility to serve the bundle on the respondent as required. The respondent claims the judge’s failure to admit the respondent’s late evidence or adjourn the hearing, despite the appellant failing to comply with directions, resulted in an unfair hearing. The judge determined the appeal on the documents provided by the appellant, despite the documents not having been served on the respondent at the time the application was made, or in advance of the hearing of the appeal. The respondent has been prevented from making the necessary checks on the documents relied on by the appellant prior to the hearing of the appeal.
11. Permission to appeal to the Upper Tribunal was refused by FtT Judge Beach on 19 November 2025. Having had the opportunity to consider the documents relied upon by the appellant, in the renewed application for permission to appeal, the respondent also claims the FtT made a mistake as to a material fact that can be established by objective and uncontentious evidence. The respondent claims:
a. It can now be established that birth certificate relating the birth of the appellant and sponsor’s child, is false.
b. The land registry documents relied on by the appellant as evidence of a jointly owned home have also been found to be false.
c. An email the appellant claims was sent to the Home office on 26 January 2024 regarding the loss of her passport and the possibility of the passport having been fraudulently used in another application, is not a genuine email.
d. The ‘Report My Loss’ document relied upon by the appellant as evidence that the sponsor reported the loss of her Bulgarian passport on 9 February 2023 is false.
e. The bank statements relied upon by the appellant and sponsor of a bank account held by the sponsor with Lloyds Bank (account 3*****60) are false.
12. The respondent claims the evidence referred to by the respondent impugns the finding made by the FtT in accordance with the well-known principles set out Ladd v Marshall [1954] 1 WLR 1489. The respondent claims that as the appellant had not served the evidence relied upon by the appellant before the hearing of the appeal, the respondent was unaware of the evidence and was denied any opportunity to make enquiries as to the provenance of the documents prior to the hearing.
13. Permission to appeal was granted by FtT Judge Blundell on 28 January 2026. The parties were notified of the grant of permission to appeal on 2 February 2026. A copy of the decision was emailed to the appellant by sending it to the appellant using the email address entered by the appellant on his application made on 29 September 2024.
The Hearing of the Appeal Before the Upper Tribunal
14. The appeal was listed for hearing before me. The Notice of Hearing was sent to the parties on 20 February 2026. The Tribunal records confirm a copy of the Notice was sent by email to the appellant and by post to his sponsor. There has been no response from the appellant himself and he has not sought to make arrangements to join the hearing remotely. The appellant was not represented. The appellant’s sponsor did not attend the hearing. There has been no application to adjourn the hearing and the Tribunal has not been provided with any explanation from the appellant for his and/or his partner’s absence.
15. I have had regard to Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008. I am satisfied that the appellant has had notice of the hearing before me and that it is in the interests of justice and in accordance with the over-riding objective to proceed with the hearing of the appeal in the appellant’s absence.
16. On behalf of the respondent, Mr Wain submits it is clear that the evidence relied upon by the appellant at the hearing of the appeal, and which was material to the decision of the judge had not been served upon the respondent. As the respondent had not received the evidence she was unable to make any representations or conduct any checks upon the reliability of the documents relied upon.
Decision
Error of Law
17. Having heard from Mr Wain I said at the hearing that I am satisfied that the evidence relied upon by the appellant was not received by the respondent prior to the consideration of the appeal before the FtT, and that the judge proceeded in a manner that was vitiated by procedural unfairness.
18. The issue of fairness in the context of adjournments was considered by the Upper Tribunal in the case of Nwaigwe (adjournment: fairness) [2014] UKUT 418. The President gave the following reminder;
"7. If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? Any temptation to review the conduct and decision of the FtT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell, fairness is the supreme criterion.
8. The cardinal rule rehearsed above is expressed in uncompromising language in the decision of the Court of Appeal in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, at [13];
"First, when considering whether the immigration Judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair".
Alertness to this test by Tribunals at both tiers will serve to prevent judicial error. Regrettably, in the real and imperfect world of contemporary litigation, the question of adjourning a case not infrequently arises on the date of hearing, at the doors of the court. I am conscious, of course, that in the typical case the Judge will have invested much time and effort in preparation, is understandably anxious to complete the day's list of cases for hearing and may well feel frustrated by the (usually) unexpected advent of an adjournment request. Both the FtT and the Upper Tribunal have demanding workloads. Parties and stakeholders have expectations, typically elevated and sometimes unrealistic, relating to the throughput and output of cases in the system. In the present era, the spotlight on the judiciary is more acute than ever before. Moreover, Tribunals must consistently give effect to the overriding objective. Notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties' right to a fair hearing. In determining applications for adjournments, Judges will also be guided by focusing on the overarching criterion enshrined in the overriding objective, which is that of fairness."
19. It is clear from the reasons given by the respondent for refusing the application that there were concerns about the appellant’s relationship with his sponsor and their credibility. The FtT had previously directed that the decision in the appeal could not be made on the papers because of the issues in the appeal. It is surprising that the judge did not therefore treat the claim made by the sponsor on the morning of the hearing that she was unable to attend, with a degree of caution. It is surprising that an appellant who receives a decision in which there is a direct challenge to the relationship, would want that issue to be determined on the papers. If as the sponsor had claimed, she was unable to attend the hearing of the appeal the judge should have considered whether it was sensible to adjourn the hearing to enable the sponsor to attend, and submit to cross-examination. The sponsor could no doubt have provided medical evidence in due course to support her claim that she was unable to attend the hearing of the appeal because of a medical emergency.
20. The judge was made aware during the course of the hearing that the Presenting Officer did not have access to key documents relied upon by the appellant in support of the appeal. The Presenting Office provided an explanation as to why that may be. This appeal serves to demonstrate the difficulty that can arise when there is speculation by a Presenting Officer in this way. If a bundle had been received, one might reasonably expect that the receipt of the bundle would be recorded on any electronic record maintained by the Presenting Officers Unit. If there is no record of the bundle having been received, that is what the judge should be told and the basis upon which the judge should proceed. In any event, the onus rests upon a party to ensure that any bundle and/or documents are served in accordance with directions made procedure rules. It was not for the respondent to check with the Tribunal in advance of the hearing whether the appellant had served any evidence in support of the appeal. A judge should satisfy themselves that, in the interests of fairness, documents that are material to the issues have been properly filed and served.
21. The judge was also made aware during the course of the hearing that the respondent wished to adduce two documents that were material to the appeal. The judge refused the application made by the Presenting Officer for an adjournment. The preparation for the hearing of the appeal and the developments during the course of the day were plainly unsatisfactory, but I am entirely satisfied that the judge deprived the respondent of a fair hearing. The judge then declined to admit the evidence the respondent wished to rely upon.
22. It is remarkable that the judge, having decided not to adjourn the hearing nor to admit the documents, declined the Presenting Officer an opportunity for some time to take instructions as to whether he should seek an adjournment so that the respondent might adduce other evidence that might be relevant, but which had not yet been disclosed. The judge said that “nothing could be gained from this”.
23. An adjournment would have provided an opportunity for the sponsor to attend the hearing of the appeal. It would have provided the respondent with a fair opportunity to consider documents that the presenting officer was previously unaware of. It would also have provided an opportunity for the respondent to serve the additional documents upon the appellant and his sponsor, and to provide an opportunity for them to consider and respond to those documents.
24. If there were any doubt, it is now clear that the approach adopted by the judge resulted in the judge reaching a decision that is tainted by a mistake as to fact. In E and R v SSHD [2004] EWCA Civ 49, Carnwath LJ undertook a comprehensive review of the authorities concerning the circumstances in which a decision of a Tribunal may be disturbed on the basis of a mistake of fact, even though that mistake may not be due to any judicial fault. He said, at [66]:
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
25. Having considered the authorities on the related issue of whether, and in what circumstances, evidence may be adduced to prove a mistake of fact, Carnwath LJ summarised his conclusions, insofar as relevant to the Tribunal, as follows:-
"92. In relation to the role of the IAT, we have concluded
(i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
(ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
(iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
26. I acknowledge that here, the right of appeal is confined to errors of law. I accept the evidence now adduced by the respondent in support of the renewed grounds of appeal demonstrates the judge placed undue reliance of documents that have now been demonstrated to be false. The veracity of the documents is objectively verified by the enquiries completed by the respondent. The documents had not been served on the respondent prior to the hearing of the appeal before the FtT and the respondent therefore had no opportunity to carry out any check in advance of the hearing. Finally, the mistake of fact was material to the judge’s decision to allow the appeal.
27. Neither the appellant nor the sponsor has attended the hearing of the appeal before me in an attempt to address the respondent’s grounds of appeal and the anomalies identified. Standing back, I am satisfied that the decision of the FtT is vitiated by procedural unfairness and a material error of law and must be set aside.
Remaking the Decision
28. As to disposal the standard directions issued to the parties makes it clear that there is a presumption that, in the event of the Tribunal deciding that the decision of the FtT is to be set aside as erroneous in law, the re-making of the decision will take place at the same hearing. The parties are expected, therefore, to have complied with rule 15(2A) (by providing any evidence which was not before the FtT) in advance of the ‘error of law’ hearing.
29. The appellant has not responded to the evidence that has been filed and served by the respondent. Neither the appellant nor the sponsor, Hristina Borislavova Vanchova have filed and served any evidence seeking to address the evidence relied upon by the respondent which casts significant doubt upon the reliability of the documents provided by the appellant in support of his application.
30. I have carefully considered the documents relied upon by the appellant and the ‘Document Verification Reports’ and ‘Enrichment Reports’ filed and served by the respondent. In the absence of any further explanation from the appellant and sponsor, I find:
i) The ‘Report my Loss’ report relied upon by the appellant as evidence that the sponsor lost her passport in Leicester town centre on 9 February 2023 when she took her passport to Lloyds Bank to withdraw cash, is false. Document verification completed by the respondent, which I accept, establishes that there is no record within the ‘Report my Loss’ system to show that the sponsor’s Bulgarian passport was reported as having been lost.
ii) The Land Registry Document disclosed by the appellant as evidence that the freehold of a property on St Stephens Road, is owned by Behar Gjini and Hristina Borislavova Vanchova (they having paid £82,500 on 18 December 2021) is false. Checks completed by the respondent, which I accept, reveal that the property was last sold on 21 October 2015 for £218,000.
iii) The Lloyds Bank statements provided by the appellant to establish that Hristina Borislavova Vanchova held an account number 3*****60 are false. The respondent has provided a Document Verification Report, which I accept, that confirms that the sponsor, Hristina Borislavova Vanchova does not hold an account with them and/or the account number is invalid.
iv) The copy of the email relied upon by the appellant as evidence of an email dated 26 January 2026 from the sponsor - hvanchova**@gmail.com, to the Home Office is false. The respondent has provided evidence, that I accept, that the Home Office email address to which that email is said to have been sent, did not exist on the date in question (26 January 2024). The mailbox was created in 2025. The appellant and sponsor could not possibly have known about that email address, and have sent an email to that address in 2024.
v) The birth certificate relied upon by the appellant as evidence of the birth of Aria Gjini on 20 November 2024 in Pernik, is false. The respondent has provided evidence in the form of an ‘Enrichment Report’ which I accept. The document relied upon by the appellant contains a number of unexplained anomalies as highlighted in the ‘Enrichment Report’. Furthermore, the respondent has provided evidence, which I accept, that at least three other Bulgarian birth certificates have been submitted, across unrelated applications, that appear to be the same document, with different information entered onto it. The document appears to be a recycled document that has been digitally altered.
31. The use of false documents to support the application entirely undermines the credibility of the appellant and indeed the sponsor. Added to the concerns raised by the respondent in the decision dated 5 November 2024, I am left in no doubt at all that the appellant’s relationship with Hristina Borislavova Vanchova is not as claimed, and that the appellant is unable to establish that he is the family member of a relevant EEA citizen.
32. If follows that I remake the decision and dismiss the appellant’s appeal against the refusal of his application for an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (Family Permit) to the Immigration Rules.

Notice of Decision
33. The decision of First-tier Tribunal Judge Chapman promulgated on 25 September 2025 is set aside.
34. The decision is remade in the Upper Tribunal.
35. The appellant’s appeal against the refusal of his application for an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (Family Permit) to the Immigration Rules is dismissed.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 March 2026