Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000031
First-tier Tribunal No: HU/57180/2024
LH/00652/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

SAMUEL ODURO
(NO ANOMYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Ahmed, Senior Presenting Officer
For the Respondent: Mr Waheed, Counsel instructed by Abinelle Solicitors

Heard at Field House on 10 March 2026

DECISION AND REASONS

Background

1. This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The respondent appeals against the decision of First-tier judge Webber dated 28 October 2025 allowing the appellant’s appeal against the respondent’s decision dated 6 June 2024 which refused the appellant’s human rights claim.

2. The appellant is a citizen of Ghana aged 62 and asserted a right to remain on Article 8 grounds on the basis of his private life, claiming that he has had continuous residence since he entered the UK on 24 December 2003.

3. The judge decided that, on the basis of the witness evidence and the stamp in his passport for entry into the UK dated 24 December 2003 that the appellant had discharged his burden of proof that he had been in the UK without leaving for more than 20 years and allowed the appeal.

4. The respondent appealed on 4 November 2025 to this Tribunal that the judge had made a material error of law on three grounds (i) that the continuous residence test had not been properly applied by the judge and he had not considered whether there were very significant obstacles to the appellant’s re-integration in Ghana; (ii) that he had not properly considered the burden of proof requirements and inconsistences in the witnesses statements and (iii) that he had not applied a proportionality test and hence had not taken into account the importance of maintaining effective immigration control.

5. Permission to appeal was granted by First-tier judge Roots on 2 January 2026 on the following basis:

“1. The application is in time.

2. The grounds assert that the Judge erred in making a material misdirection as to law.

3. In parts the grounds are not well drafted. The Judge did not need to consider very significant obstacles to integration as the appeal was allowed based on 20 years continuous residence.

4. However, the grounds at paragraph 1 are arguable, given that the entry stamp was dated 24/12/2003 and the application was made on 9/1/2023. Therefore, it is, at the least, strongly arguable that the Appellant did not meet the Rules, contrary to paragraph 26 of the decision. Even if the Judge accepted that the Appellant had completed 20 years continuous residence as at the date of hearing, the Judge was required to conduct a proportionality assessment which was not done.

5. The grounds are arguable. Permission to appeal is granted and is not limited.”

Submissions

6. Ms Ahmed relied on her grounds of appeal and submitted that the judge had erred on five areas. First that he had incorrectly applied PL5.1 of the immigration rules as he had not found that the appellant was continuously resident for 20 years in the UK from the date of his application. Second, the judge should have applied the significant obstacles test as to whether the appellant would have to be able to re-integrate into Ghana, having raised the issue in paragraph 5(b) of his decision as a matter to be determined. Third, the judge had reversed the burden of proof when he taken into account in paragraph 23 that the respondent had not provided evidence to demonstrate that the appellant had left the UK during the relevant period. Accordingly, a reader of the decision could not be sure that the judge had correctly addressed his mind, when considering the entirety of the evidence, to where the burden of proof properly lay. Fourthly, that the judge had failed to address the various inconsistencies in the appellant’s witness statement particularly in relation to the issue of his place of residence in the UK and that the appellant witness statement had been signed before it had been fully completed. Finally, the judge had failed to apply a proportionality test under Article 8 and in particular consider the importance of immigration controls and burden on the taxpayer of the appellant remaining in the UK.

7. I asked whether Ms Ahmed accepted that if the appellant had made an application today, the respondent, given the judge’s findings, would be bound to allow his application and hence, on the basis of OA and others Nigeria [2019] UKUT 00065 (IAC), would have a right to remain in the UK. Ms Ahmed replied that it was “hypothetical” whether the respondent would accept an application until it was made and relied on her other grounds to contest the judge’s conclusions on continuous residence. Ms Ahmed did, however, acknowledge that should I find against her on those grounds then any proportionality test would inevitably be found to be in the appellant’s favour.

8. Mr Waheed provided myself and Ms Ahmed with a paper copy of his Rule 24 response as I had not been able to access it electronically. Ms Ahmed confirmed she was content to proceed. Mr Waheed relied on his Rule 24 response and made few oral submissions. In essence, whilst he conceded that the judge did err in his application of PL 5.1 that the error was not material given his more than 20 year continuance residence up until the date of the hearing and that any proportionality test under Article 8 and applying s117B of the Nationality Immigration and Asylum Act 2002 would be in the appellant’s favour.

Discussion and Decision

9. The issue which I have to determine whether is whether there is an error of law in the First-tier’s tribunal decision. If I conclude there is, I need to consider whether the error requires me to set aside that decision in whole or in part.

10. Turning to the first ground of appeal the judge’s conclusion of continuous residency were set out in paragraph 25:

“Taken together, I find the appellant has discharged the burden of proof and has demonstrated that it is more likely than not that he has been in the UK since December 2003 and so has been in the UK without leaving for more than 20 years”.

The reference to December 2003 I take to mean 24 December 2003 which the judge identified in paragraph 16 as the date of the entry stamp of the UK visa in the appellant’s passport.

11. The judge has made an error of law in his application of PL 5.1 which clearly requires continuous residency in the UK for more than 20 years from the date of application and given the date of the appellant’s application was 9 January 2023 the period of residency should have been from 9 January 2003 rather than 23 December 2003 to meet the requirements of that rule.

12. The issue for me is whether this is a material error given the judge accepted that the appellant had been continuously resident for more than 20 years commencing on 23 December 2003 and whether he would have been bound to succeed if he put in a new application under PL5.1 based on this continuous residence. Setting aside the respondent’s other grounds of appeal for the time being, I cannot see any basis for the respondent to refuse such an application. The judge has accepted his continuous residence since December 2003 up until the date of the hearing and given a renewed application could be made within 6 months of that date there is not even a theoretical argument that the continuous residence could have been interrupted. I do not accept Ms Ahmed’s contention that all applications to the respondent are hypothetical until determined by her given that this rule does not involve any discretionary element, the appellant either had the necessary residence or he did not and the judge had determined that he had.

13. I am guided by this Tribunal’s decision in OA and others where at paragraph 3 of the headnote it was held:

“ Where the judge concludes that the ten years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P’s human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P’s removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.”

14. Although this case was not dealing with the application of PL5.1, the principle set out in OA and others is directly analogous given the judge was satisfied that the residence requirement was met and the absence of any “discrete public interest factor” as to why the appellant’s application could be refused. Furthermore, Ms Ahmed conceded that, assuming I did not accept her other grounds, any proportionality test, if it was to be applied, would be decided in favour of the appellant. According, whilst the judge did make an error of law on his application of PL 5.1 it was not material given any renewed application by the appellant was bound to succeed given the judge’s finding at paragraph 25.

15. Turning to the second ground, given the judge’s conclusion on continuous residence there was no requirement for him to consider whether there were any significant obstacles to the appellant’s re-integration into Ghana. PL 5.1 (b) is clear that this test is only applicable where the continuous residence test was not met. The judge’s reference to it the rule in his paragraph 5(b) clearly states that this to be the case.

16. On the third ground that the judge had reversed the burden of proof, I do not find this to be the case. The judge clearly sets out the burden is on the appellant in paragraph 7 and whilst I acknowledge that the judge in paragraph 23, perhaps inelegantly, referred to placing some weight on the lack of evidence from the respondent that the appellant has left the UK since arrival, the introductory wording to that observation “While it is for the appellant to prove his case” demonstrates that the judge had not lost sight of where the burden of proof properly lay. Again, in his concluding paragraph 25 the judge re-iterates that the burden was the responsibility of the appellant. In addition, it is clear that any lack of evidence from the respondent was not determinative in the judge’s reasoning on continuous residence and paragraph 23 notes the absence of any stamp in his passport indicating exit from the UK and the “particular weight” on the evidence of Agatha Ofuri and the “considerable weight” that he placed on the other witnesses who gave oral evidence and “some weight” on supporting letters in coming to his conclusion. I find no error of law.

17. The fourth ground that the judge had failed to engage adequately with the inconsistencies in the appellant’s evidence particularly the contradictory evidence on the location of his residency whilst in the UK.

18. My starting point is the observation by the Court of Appeal made in R (Iran) v the Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 8 that a tribunal would only “very rarely” be able to overturn a finding of fact based on oral evidence and the assessment of credibility.

19. The judge notes at paragraph 8 the difficulties with the appellant’s witness statement given he was unable to read and so he was not able to confirm its accuracy and that it had not been fully completed when he signed it. In the following paragraph the judge notes that the appellant corrected in his oral testimony, that, contrary to his witness statement that he had lived with Christian Akomeah for 10 years, he had never lived with him and did not know who included that statement in his evidence.

20. Having referred to the difficulties with the evidence, the judge directly considered the issue in paragraph 24:

“There are some errors in the witness statements and I have concerns over the appellant saying that he was asked to sign his witness statement before it had been completed. I also note that the appellant's counsel, in making his application to admit the supplementary evidence, said that it was the solicitor's fault that it was late. The appellant’s solicitors would be advised to reflect on these points. However, I find that none of this reflects badly on the appellant himself or negatively affects his credibility”

21. The judge could not have been clearer about the concerns with the appellant’s evidence and concluded that they did not adversely impact his view of the appellant’s credibility when looked at in the context of the evidence as a whole. I find that this ground of appeal amounts to no more than a disagreement with the judge’s decision rather than an error of law.

22. The final ground is that the judge did not consider a proportionality assessment under Article 8 in accordance with s.117B of the Nationality Immigration and Asylum Act 2002.

23. PL 8.1 provides that if the applicant does not meet any of the eligibility criteria in, amongst other things, PL5.1 then the decision maker must be satisfied that refusal of permission to stay would not breach Article 8 on the basis of private life. Given that the judge had decided that those requirements were capable of being met, albeit expressed in a manner inconsistent with the strict provision of the rule, there was no requirement for him to apply a proportionality test. Furthermore, even if a proportionality test was required to made it would inevitably be found to be in the appellant’s favour, as acknowledged by Ms Ahmed, as the weight given to the importance of maintaining effective immigration control has already effectively been met by compliance with the rule itself. Accordingly, I find no error of law by the judge.

Notice of Decision

For the reasons set out above, there are no errors of law in the decision of the First-tier Tribunal and I decline to set the decision aside.

Mark Stamp

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 March 2026