Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000189
First-tier Tribunal No:
EA/00368/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th September 2026

Before

UPPER TRIBUNAL JUDGE RIMINGTON
PRINCIPAL RESIDENT JUDGE MANDALIA

Between

Mesbah Hani Abouelmaati Elsayed
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr N Aghayere instructed by Ben Darlington Solicitors
For the Respondent: Ms S Rushforth Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 20 August 2026

DECISION AND REASONS

1. The appellant, an Egyptian national born on 20th April 1984, appeals under the Immigration (Citizen’s Rights Appeals) (EU Exit) Regulations 2020 a determination of FtT Judge Boyes dated 21st August 2025 dismissing the appellant’s appeal

2. On 6th June 2019 the appellant and sponsor Ms Evita Petrasova, a Czech national born on 1st April 1965 (who experiences high blood pressure) married, and they were granted pre-settled status which was subsequently extended on 23rd May 2024 until 26th July 2026.

3. Under Appendix EU, an applicant qualifies if they are the spouse of a relevant EEA citizen, provided the marriage is genuine and subsisting. The Secretary of State’s letter dated 30th September 2024, refused the appellant’s application for leave under the EU Settlement Scheme (EUSS) as the spouse of the. In particular, the letter of the Secretary of State recorded:

‘You have incorrectly said that the sponsor was born in Varga, and the sponsor did not know your place of birth.
The sponsor was unable to provide your full name, she said that she knows you as Hani Mesbah, that your name is very long and even at the marriage ceremony she couldn’t pronounce it.
When you were asked about the sponsors age, you were unable to answer spontaneously and was visibly working it out.
The sponsor was asked how old you are, she was unable to say and appeared to be reading something. She was found to be looking at the marriage certificate and was advised to put it away. The sponsor stated that you are 25 years old, however you are 40 years old., then she went on to say that there was a 15-year age difference. The age difference is 19 years.
The sponsor could not give your nationality, stating that she couldn’t remember but it begins with the letter ‘M’. Later on in the interview the sponsor stated that your nationality is Egypt.
It is reasonable to expect that your sponsor would know your full name, how old you are, where you were born and to easily recall your nationality if she is in a genuine relationship with you that dates back to 2014.
The sponsor was found to be surreptitiously viewing a marriage certificate during the interview which indicates that this basic information cannot be given unprompted.
The sponsor said that she has a previous nationality of Slovakia, however, you didn’t know the sponsor was previously Slovakian.
You showed a lack of basic knowledge of your wife’s details as you gave an incorrect place of birth for the sponsor, couldn’t readily state her age and didn’t know that she had held a different nationality.
You stated that you had no previous nationalities.
When informed that Home Office records show alias’s you said that you were aware of the alias name and alias nationality of Palestine authority. You claimed that you provided the details by mistake and confirmed that you never held Palestine nationality.
The reason given by you for the alias Name and Nationality was that you were in process of changing name or nationality, and you were afraid.’

4. In his key findings the judge recorded this at [30]:

‘I do not propose to list all of the discrepancies and differences which arose from the marriage interviews but assessing them holistically I am satisfied that they show that the appellant and Mrs Petrasova hardly know anything about each other, their claimed relationship, how they purportedly met, the engagement, the wedding.’

Grounds of appeal

5. The three grounds of challenge set out that the judge:

(i) erred in law by rejecting the appellant’s explanation of misinterpretation at interview without proper reasoning and relying on speculative findings. The Home Office interpreter was not accurately interpreting ‘on many occasions’. The grounds asserted ‘if the interview record confirmed interruption’ the judge’s finding at [31] that there was no complaint was factually wrong. The interpreter complaint was only dismissed by the judge on the basis of the interpreter’s experience. That did not discharge the requirement as set out in MN (Somalia) v SSHD [2004] UKIAT 00024 nor HK v SSHD [2006] EWCA Civ 1037. The judge also speculated that the appellant took a chance his wife would not be asked the same questions and the disputed answer was the only significant inconsistency.

(ii) Failed to assess the evidence in the round. There was a misdirection on the burden of proof, and the judge gave inadequate reasons. There was evidence of shared residence over five years, such as joint bills and tenancy agreements. The judge treated a single interview as conclusive proof of a sham marriage but did not appreciate the sponsor had panicked during the interview, Naz [2012] UKUT 40 (IAC). There was a valid marriage certificate which was prima facie evidence.

A finding of a marriage of convenience required cogent evidence not based on minor contradictions and the burden of proof rested with the respondent. The judge effectively reversed the burden of proof and required the appellant to prove genuineness to an unrealistic standard such as the production of anniversary photographs or WhatsApp messages. The finding at [30] that ‘they hardly know anything about each other’ is unsustainable and the judge failed to engage with the submissions which addressed the reliability of the interview. The refusal relied on matters such as age, nationality and addresses, and these were peripheral. There was a shared residence.

(iii) Failed to consider the passage of time and earlier grant of pre-settled status. The judge erred by dismissing the 2019 investigation and earlier grant. There had been previously a dawn visit to the couple’s home and still a grant of pre-settled status. This was the relevant starting point as per Devaseelan v Secretary of State for the Home Department [2002] UKAIT 702. The judge merely dismissed this evidence as ‘not relevant’.

Grant of permission

6. Permission to appeal was granted by FtT Judge Rastogi who stated that it was arguable the judge did not approach the evidence and the shifting burden of proof correctly.

Submissions

7. It was submitted that the appellant gave evidence at the FtT hearing that the Home Office interview was not accurate. We were invited to look at questions [158]-[159] of the interview. The interpreter was not interpreting word by word. Paragraph 12 of the decision was referenced, and the judge clearly preferred the accurate record of the transcript and rejected the appellant’s account.

8. The interview was long. There was ample evidence before the judge such as the evidence of cohabitation and evidence of the Islamic marriage and civil marriage in 2019. The evidence should be taken in the round. The judge should not have stated that the previous marriage and grant was not relevant – it was.

9. Ms Rushforth submitted the grounds did not establish a material error of law. There were several reasons for rejecting the appellant’s explanation in relation to the interview. The appellant had a reasonable grasp of English and could have pointed out the issues during the interview and did not. The judge referenced the appellant had past experience of blaming others; it was open to the judge to mention the gamble but moreover this did not undermine the findings. Despite the council tax bills and tenancy agreement it was open to the judge to find no genuine marriage. The appeal should be dismissed.

Conclusions

10. We take each of the grounds in turn but commence with ground (ii) which is critical to the appeal.

Ground (ii).

11. The judge was fully aware of the standard and burden of proof. At [18] when recording the Secretary of State’s submissions the judge wrote:

‘Taking a holistic and overarching approach to the evidence it was clear that the SSHD had not proved her case.

12. In setting out the legal framework the judge said at [19] that “To prove that the appellant is a party to a marriage of convenience the respondent must show that the marriage is either a sham in that there is no genuine relationship or that the marriage was entered into to circumvent immigration controls.” The judge properly directed himself at [22] that the standard of proof if the balance of probabilities.

13. At [38] the judge specifically concluded:

‘Because I have found that the appellant is a party to a marriage of convenience the respondent has shown that the appellant is not a spouse within the meaning of Appendix EU’.

14. The evidence was clearly considered in the round and approached holistically. We consider this more in detail below. The difficulty with the evidence is that the judge found the interview fundamentally undermined the appellant’s case of a genuine marriage, notwithstanding the tenancy agreement and council tax documents. Moreover, as the judge reasoned, and as we consider below, the absence of relevant evidence was important. There was no reliance on speculation or minor inconsistencies but a wholly undermining lack of knowledge of the appellant by the sponsor and vice versa as identified in the interview.

Ground (i)

15. We invited the representative to show us where there had been any interruption by the appellant, let alone ‘many occasions’ and were simply not taken to specific incidents. The judge noted at [12] that the appellant had maintained he was not fluent in English, but his English was fair and yet there was no indication that there were repeated misunderstandings (or indeed interruptions) by the appellant of the interpreter in the interview.

16. At [31] the judge reasoned as follows:

‘One further matter which struck me as bizarre was the appellant was asked in the hearing when was the last time he spoke with Mrs Petrasova’s mother. He stated that it was on the day of the hearing. Mrs Petrasova confirmed that her Mother died some years prior. The appellant remonstrated in closing submissions that it was either the interpreter’s fault or he misheard. I reject both. The appellant’s methods of blaming others and seeking to obfuscate, challenge, dissemble and distract were obvious on reading the interview and reasons for refusal. The same tactic was adopted herein. There was no complaint at all prior to this about the interpreter and the interpreter is a very experienced interpreter. I am satisfied that the appellant took a chance that Mrs Petrosova would not be asked the same question and his gamble did not pay off.’

17. The judge clearly read the interview, and we agree there was no complaint about the interpreter. The appellant maintains he speaks English and made no complaint during the interview as to the interpretation and indeed agreed that he had understood. The judge did not simply dismiss the appellant’s explanation because the interpreter was very experienced but because there was no evidence of complaint or interruptions ‘on many occasions’ as to interpretation as asserted by the appellant.

18. This ground is conditional on the content of the interview and thus we find there was no material error of law as advanced. The reference to the appellant ‘taking a chance’ did not undermine the judge’s findings overall.

19. There was no discernible ‘factual error’ and this ground is dismissed.

Ground (iii)

20. Having made the following findings, the judge was entitled to conclude the marriage was a sham and take the approach he did. The judge identified:

26. Firstly, the marriage interviews are to say the least woeful. Having assessed them holistically and as a whole, making allowances as are fair in all the circumstances, the conclusion that I reach is that they know hardly anything about each other. For example, I do not accept that, given she has been in an Islamic marriage since 2014 and a civil marriage since 2019, that she would not and does not know the appellant’s full name. I do not accept that there is a genuine reason as to why this is the case.

27. Further, the sponsor was asked how old the appellant was, she was unable to say. The sponsor stated that he was 25 years old, however he is 40 years old., then she went on to say that there was a 15-year age difference. The age difference is 19 years.

28. The sponsor could not give the appellant’s nationality, stating that she couldn’t remember but it begins with the letter ‘M’. Later on in the interview the sponsor stated that his nationality is Egypt.

29. It is reasonable to expect that the sponsor would know the appellant’s full name, how old he is, where he was born and to easily recall his nationality if she was in a genuine relationship that dates back to 2014.

30. I do not propose to list all of the discrepancies and differences which arose from the marriage interviews but assessing them holistically I am satisfied that they show that the appellant and Mrs Petrasova hardly know anything about each other, their claimed relationship, how they purportedly met, the engagement, the wedding.

33. The photographs are very limited in time. They appear to have either been taken in the same period of time or on the same day. There are no photographs spanning their relationship such as anniversaries, birthdays, holidays, high days and feasts. There are no pictures of them together at any events or social occasions.

…

34. There are no statements from anyone who knows them attesting to the genuineness of their marriage. No family members provided any evidence or statement attesting to the genuineness of the marriage.

35. There are no shared financial liabilities other than the council tax and tenancy. These documents show that Mrs Petrasova may well live there but that is a far cry from being in a genuine relationship. There are no shared accounts, insurances, nothing in terms of pictures on their phones, text messages, whatsapp or the like showing that they are in normal husband and wife communication. There is no evidence of joint spending.

36. There are no pictures of the claimed family home showing the sharing of a bedroom or shared lives.

21. A careful reading of the decision reveals the judge was fully aware of the immigration history of the appellant and that there had previously been enquiries into the marriage when the couple first intimated, they would marry but ‘it was determined at the time that there were no grounds to impugn the marriage or that they would not do so at the time. A criminal prosecution was not continued’ [5]. As the judge noted, the Home Office maintained that the Secretary of State was within her rights to look again. The key issues were whether the relationship was genuine and whether it was a sham/marriage of convenience. The judge noted the appellant’s evidence that he had been lawfully married to the sponsor for a ‘number of years’, [7].

22. The judge referenced the evidence of the appellant himself at [11] such that there was an Islamic marriage in 2014, a previous EU settlement application on the basis of unmarried partner but that on 6th June 2019 the appellant and sponsor had married in a registry office and that the Secretary of State ‘attempted to categorise as a sham marriage but failed to prove it’ (sic). There was a visit at 5 am in the morning but when evidence of cohabitation was found the appellant was granted five years EU pre settlement.

23. The reference by the judge at [37] to the ‘fact that the matter was investigated in 2019 and no action was taken is not relevant’, may have been more elegantly phrased but the judge had indeed factored in the 2019 marriage and lack of action on the part of the Secretary of State at that juncture. Having done so, having considered the evidence in the round including the interview, and having applied the correct burden of proof, the judge proceeded to a cogently reasoned finding adverse to the appellant and one which was open to him.

24. The grounds overall disclose no material error of law.

Notice of Decision

The appeal to the Upper Tribunal is dismissed.

The determination of the FtT judge contained no material error of law and will stand.

H Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

24th August 2026