Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000494
First-tier Tribunal No: EU/55873/2024
LE/05395/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22nd April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

OSEI KWAKU ACQUAH
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Richardson, instructed by Yasin and Co Solicitors
For the Respondent: Mr M Pugh, Senior Presenting Officer

Heard at Field House on 13 April 2026

DECISION AND REASONS
1. The Appellant, a citizen of Ghana born 17 March 1970, appeals with permission granted by First-tier Tribunal Judge Barker against the decision of the First‑tier Tribunal (“the FTJ”) promulgated on 28 July 2025 (“the 2025 decision”). In the 2025 decision the FTJ dismissed his appeal against the Respondent’s refusal of his EUSS application, under the Immigration (Citizens’ Rights Appeals (EU Exit) Regulations 2020. Permission was granted on Grounds 2 and 4 only, which I summarise below.
2. I had before me at the error of law hearing a composite bundle of 486 pages, and the Grounds of appeal dated 5 August 2025. The parties confirmed that no additional material was required or expected.
3. The central issue before the First-tier Tribunal was whether the Appellant’s marriage to his German national sponsor was a “marriage of convenience”. The Respondent’s case before the FTJ was that the Appellant had not provided sufficiently compelling new evidence to justify departure from an earlier judicial finding in a previous appeal from August 2023 (“the 2023 decision”) that the Respondent had proved the marriage was one of convenience, and that the principles in Devaseelan v SSHD [2002] UKIAT 00702 required the 2023 decision to be the starting point. The Appellant’s case was that the marriage is and always was genuine and crucially not a “marriage of convenience” and that he consequently meets the requirements of Appendix EU.
The FTJ’s decision
4. The appeal before the FTJ was a second appeal following the 2023 decision, where the earlier Judge dismissed the Appellant’s appeal and found that the Respondent had proved that the marriage was one of convenience. At [18] the FTJ endorsed the findings in the 2023 decision:
“18. I have considered the documents submitted. There are a number of inconsistent answers provided to the questions asked of the Appellant and his sponsor in interview. These are succinctly set out in the cancellation of the Appellant’s leave notice at page 25 of the Respondent’s bundle. I endorse the observations made by Judge Harrington and the inconsistencies that she noted in her determination.”
5. At paragraph [19]-[21] the FTJ assessed documentation relating to the proxy marriage, and made observations about the shortcomings in that evidence, and assessed the extent to which weight ought to be attached to it:
“19. The marriage is said to have been a proxy marriage. The marriage certificate does not say that either party was represented by a proxy. The Appellant, in his witness statement says that his wife’s brother, Joseph Nunoo Ashong was present, but that is not the name that appears in the witness box for the sponsor. The name that appears is Doris Osei. The Appellant stated that his cousin brother, Akwasi Ofori Nketiah Sarpong, was present. In the witness box on behalf of the Appellant, the name Mark Sarpong is given. This does not add any weight to the Appellant’s narrative.
20. The Appellant has provided a letter dated 30 November 2020. It is not clear from the document, the address of the author as the only heading on the letter is “Republic of Ghana”. The letter purports to confirm the authenticity of the signatures on a document attached ot [sic] the letter and is signed on behalf of the High Commissioner in the Consular Section of the Ghana High Commission in London.
21. One of the letters attached attests to the stamp, signature and seal of the notary public and does not the contents [sic] of the attached document. The document referred to is a Statutory Declaration completed by Akwasi Ofori Nketiah Sarpong, the Appellant’s brother and Joseph Nunoo Ashong, the sponsor’s brother stating that they had the right to represent their respective siblings. Their signatures do not appear on the marriage certificate which I would expect to see if the marriage were conducted by proxy. No reference is made in the Statutory Declaration to the names of the witnesses to the marriage provided in the marriage certificate. I attach little weight to these documents.”
6. At [22]-[25] the FTJ made observations and findings regarding other documentary evidence provided:
“22. In his submissions, Mr Richardson submitted that the gas bill for the couple is in the Appellant’s name. There are annual statements addressed to the Appellant at the address he has given. It is said that the bills are paid by the sponsor. There are some discrepancies in the annual statements. For example, the usage amounts between two of the years, are not consistent, with the next year’s usage statement. The sponsor’s bank statements for the periods of the annual gas and electricity annual usage statements have not been provided so I am unable to use these to support the Appellant’s credibility as to who is making the payment. I can see that the sponsor is making payments to British Gas in 2024.
23. The evidence provided by the Appellant demonstrating that he is living at the address provided is very limited. The bank statements he has provided only relate to 2021. The utility usage statements extend to October 2024 but given that he is not paying the bills, it does not carry significant weight.
24. I have seen no evidence of joint liabilities. Judge Harrington made some clear observations about the absence of any evidence of communication between the couple in her determination. There is still no evidence of contact between the Appellant and his sponsor.
25. The photographs provided in the bundle are of limited use. There is no annotation to provide any context, and they do not, on their own, demonstrate a relationship between the Appellant and his sponsor.”
7. At [26]-[28] the FTJ said:
“26. The starting point for my decision is the determination of Judge Harrington. Having considered the evidence provided by the Appellant in this appeal, there is no evidence which is particularly strong. The photographs are of very limited value as are the Appellant’s bank statements. There are problems with the marriage certificate not showing that the marriage was a proxy marriage. Even having been question [sic] on four earlier occasions about details of their families, there were still some discrepancies between the Appellant’s and sponsor’s oral evidence at the hearing, such as the contact between the Appellant and his sponsor’s son.
27. Judge Harrington found that the Respondent had demonstrated that the marriage was a marriage of convenience. Having considered all the evidence in the round, I find that the Appellant has not provided sufficient evidence to address the concerns raised that the marriage is one of convenience or that there is sufficient new evidence to demonstrate why I should depart from the findings made by Judge Harrington that the Appellant and his sponsor entered into a marriage of convenience to gain an immigration advantage.
28. Having considered all the evidence in the round, I find that the Appellant has not demonstrated on the balance of probabilities that he is a family member of a relevant EEA national as defined in Appendix EU of the Immigration Rules as I have found that the marriage he entered into with his sponsor was a marriage of convenience. I, therefore, dismiss his appeal.”
The Appellant’s arguments on appeal to the Upper Tribunal
8. Permission was granted only on the following grounds:
• Ground 2: that the FTJ arguably failed to provide adequate reasons for finding that the absence of joint liabilities and evidence of communication undermined the genuineness of the marriage.
• Ground 4: that it was arguable that the FTJ erred by focusing on the legality of the proxy marriage, and thereby arguably going behind a previous finding that the proxy marriage was valid, contrary to the approach in Devaseelan.
The submissions
9. In relation to ground 2, Mr Richardson submitted that the reasoning at paragraph 24 was inadequate. Mr Richardson also submitted that the FTJ’s reasoning comprised three strands and that any defect in one strand would be material. He further submitted that the determination did not record the oral evidence of the appellant and sponsor in any detail. He submitted that many couples do not have joint liabilities or joint accounts. He submitted that couples may communicate in ways which do not generate telephone or messaging records. He submitted that the Respondent bore the burden of proving a marriage of convenience and that the absence of such evidence should have been treated as no more than neutral. In relation to ground 4, Mr Richardson submitted that the 2023 decision recorded that the Respondent accepted the parties were legally married and that this was not in issue. He submitted that the FTJ nevertheless scrutinised the proxy marriage documentation and used doubts about it to undermine the genuineness of the relationship. He submitted that this amounted to going behind the previous determination and the Respondent’s position. He submitted that the error was material and that, if an error of law were found, remittal for a fresh hearing would be appropriate.
10. Mr Pugh relied on the Respondent’s Rule 24 response. He submitted that ground 2 had evolved from an allegation of irrationality to a reasons challenge. He submitted that paragraph 24 must be read in context. He submitted that this was a Devaseelan case with earlier adverse findings and that the First-tier Tribunal was entitled to consider what evidence might have been expected if the relationship were genuine and if the couple were seeking to address previously identified evidential gaps. He submitted that it was not an error for the FTJ to attach weight to the continued absence of supporting evidence, including communication evidence. On ground 4, Mr Pugh submitted that it was relevant to consider evidence about the circumstances of the marriage and the documents relied upon. He submitted that a genuine marriage is likely to be significant to the parties and that discrepancies about documentation and arrangements may properly inform an assessment of whether the marriage was one of convenience. He submitted that the FTJ did not find the marriage invalid and that the decision must be read as a whole. He submitted that any arguable error was not material.
Legal principles
11. I remind myself of what was said by Lady Hale at paragraph 30 of SSHD v AH (Sudan) [2007] UKHL 49. What was said there about the restraint which must be exercised on appeal has been repeated in other cases, including HA(Iraq) and others v SSHD [2022] UKSC 22 at [72]. The approach I adopt to the First-tier Tribunal’s findings reflects what was said by Lewison LJ at [2] of Volpi v Volpi [2022] EWCA Civ 464:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the FTJ failed to give the evidence a balanced consideration only if the FTJ's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
12. In BK (Afghanistan) v SSHD [2019] EWCA Civ 1358, the guidelines in Devaseelan v SSHD [2002] UKIAT 00702 were summarised in this way:
“(1) The first adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the Appellant’s status at the time it was made. In principle, issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first adjudicator’s determination can always be taken into account by the second adjudicator.
(3) Facts happening before the first adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.
(4) Facts personal to the Appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.
(5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.
(6) If before the second adjudicator the Appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant’s failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.
(8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.”
13. It was reiterated in AL (Albania) v SSHD [2019] EWCA Civ 950 at [25] that, following the Devaseelan guidelines, not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so.
14. In KD v SSHD [2026] EWCA Civ 349 it was stated at [65]-[66]:
“65. The guidelines in Devaseelan are an important weapon in the armoury of tribunals seeking to achieve a consistent approach that is fair to all parties when faced with similar or repeat appeals. However, as Dove LJ observed during argument, there is a danger that, being so familiar to specialist judges, they are not fully applied.
66. To illustrate, the first guideline, which created the concept of a ‘Devaseelan starting point’, calls for more than a recognition that there has been a previous decision. In order to identify the true location of the starting point for its own journey, the second tribunal must identify the scope of the issue(s) that may be common to the two appeals, and analyse what the first tribunal found and why. It is only by doing this that it can know what significance should properly be attached to the first appeal decision, before going on to apply the guidance as a whole. The other guidelines, insofar as they are relevant to the inquiry in the individual case, require equal consideration. A broad statement by the second tribunal that it is treating the first tribunal’s decision as its starting point is not an application of the Devaseelan guidance and is likely to lead to error, one way or the other.”
Error of Law Analysis
Ground 2:
15. Ground 2 focuses on paragraph 24 of the FTJ’s decision, where she noted what she characterised as the absence of evidence of joint liabilities and what she said was the continuing absence of evidence of contact between the Appellant and the sponsor.
16. I accept Mr Richardson’s submission that couples may organise their financial affairs in different ways and may communicate in a variety of ways. Those observations do not, however, demonstrate an error of law in the FTJ’s approach. The FTJ did not treat the absence of joint liabilities or contact evidence as a freestanding legal requirement. She treated those absences as part of her evaluation of the evidence in the round, in my judgment. She was entitled to do so, and her assessment was not irrational, particularly in a case where the earlier determination had identified the absence of communication evidence as a material feature and where the Appellant was seeking to persuade the Tribunal to depart from an earlier adverse finding.
17. Although, as set out above, it was submitted that the oral evidence was not recorded in detail, no specific aspect of that evidence was detailed identified as having been overlooked or materially misunderstood. Whether framed as a reasons challenge or an irrationality challenge, either way, the appeal must be assessed by reading the decision fairly and as a whole. Here, in my judgment, the FTJ set out the procedural history, treated the 2023 determination as the starting point, considered the evidence produced for the hearing before her, and explained why she did not accept that the evidence was sufficiently compelling to displace the earlier finding that the marriage was one of convenience. In that broader context, paragraph 24 formed part of an overall chain of reasoning. It addressed the continued absence of evidence which the earlier judge had regarded as significant. It was rationally open to the FTJ to conclude that the continued absence of such evidence undermined the credibility of the Appellant and the sponsor and reduced the weight she could place on the evidence that was produced. Mr Richardson submitted that the absence of such evidence was at best neutral given the burden of proof. I do not accept that submission. The burden of proof remained on the Respondent (as recognised by the FTJ at [11]). A judge may nevertheless evaluate the plausibility and weight of the evidence in light of what is absent, particularly where specific evidential gaps have already been identified in an earlier determination and the Appellant seeks to demonstrate a genuine relationship by adducing new evidence.
18. As to whether it was incumbent upon the FTJ to set out the oral evidence of the Appellant and sponsor, a judge is not required to rehearse oral evidence and set out chapter and verse on everything that was said by all the witnesses. The question is whether the reasons given resolve the key issues and explain why the appeal was dismissed. Read fairly and as a whole, the determination does so. I am satisfied that the FTJ gave sufficient reasons to explain her conclusions and to enable the parties to understand why the appeal was dismissed.
19. Ground 2 is therefore not made out.
Ground 4:
20. Ground 4 contends that the FTJ went behind the 2023 determination, and in particular that she improperly focused on the legality of the proxy marriage despite the earlier finding that the marriage was valid.
21. It is clear that the 2023 determination recorded that the Respondent accepted that the Appellant and sponsor were legally married, and that the earlier Judge proceeded on that basis. I am satisfied that likewise the FTJ proceeded on the basis that the principal controversial issue was whether the marriage was one of convenience for the purposes of Appendix EU. She set out the procedural history and treated the 2023 determination as the starting point. I accept that, on a first reading, paragraphs 19 to 21 and 26 of the FTJ’s decision contain discussion of the proxy marriage documentation. That discussion must, however, be read in its proper context. It follows the FTJ’s express endorsement at [18] of the 2023 decision on the serious inconsistencies given by the Appellant and the sponsor in interview. The FTJ’s later observations on the proxy documentation were made against that background and as part of her overall evaluative assessment of whether there was now sufficiently compelling evidence to displace the earlier judicial finding that the marriage was one of convenience.
22. It is relevant that, in the 2023 decision, the earlier judge identified significant problems going to the reliability of the Appellant’s and sponsor’s accounts. Those included material inconsistencies in their oral and written evidence about their relationship, giving discrepant evidence about what happened on the day of their marriage, and in particular about the phone calls between the UK and Ghana. The parties were inconsistent in the explanations they gave for the delay in cohabitation. The 2023 Judge noted an inability to provide persuasive supporting evidence of communication between them, a paucity of photographs, an absence of meaningful corroboration from friends, and inconsistent explanations about their claimed cohabitation. The 2023 Judge found that neither the Appellant nor the sponsor were able to give coherent or plausible explanations for the inaccurate accounts they gave when they were interviewed on 7 May 2022. The 2023 Judge also treated as significant the Appellant’s inability to recall the name of the sponsor’s son who he had met. The FTJ was, in my judgment, rationally entitled to treat those adverse findings as the starting point, and to conclude that the evidence before her did not adequately rebut them.
23. In my judgment, the FTJ’s observations at paragraphs 19 to 21 and 26 concerned the documentation said to support the proxy marriage narrative, and the extent to which those documents added weight to the Appellant’s account on the principal controversial issue; namely whether it was a marriage of convenience. She explained why she attached little weight to that evidence and why they did not advance the Appellant’s case. Looking at the decision as a whole, in the proper context of the 2023 decision, paragraphs 19-21 and 26 of the 2025 decision do not actually show that the FTJ treated the marriage as invalid. They show that she considered whether the evidence relied upon by the Appellant was capable of adding weight to the claim of a genuine relationship and of displacing the earlier judicial finding that the marriage was one of convenience. In my judgment, the suggestion that the FTJ made an adverse finding about the legal validity of the marriage is not borne out by the decision when read fairly and holistically. She did not make an express finding that the marriage was invalid. She stepped back from doing so, and in the concluding part of her reasoning at [27] and [28] she referred to “the marriage” as being one of convenience. She did not describe it as an alleged or claimed marriage. That, I find, was consistent with the Respondent’s acceptance of a legal marriage and with the proper focus of the appeal on whether the marriage was one of convenience.
24. In those circumstances, I do not accept that the FTJ impermissibly went behind the earlier finding or that she failed to have regard to or misunderstood the prior acceptance of a legal marriage. Her focus remained on the central question in the appeal before her, and on whether there was sufficiently compelling new evidence to justify departure from the earlier adverse conclusion. I am also satisfied that the FTJ applied the Devaseelan guidance lawfully. She identified the 2023 determination as her starting point, evaluated the evidence said to be new, and gave reasons for concluding that it was not particularly strong and did not justify departure from the earlier findings.
25. Ground 4 therefore does not establish an error of law.
26. If I am wrong about that, any arguable defect would not be material. The FTJ’s decision did not turn on a finding that the marriage was invalid. It turned on her conclusion that the Appellant had not provided sufficient new evidence to displace the earlier finding that the marriage was one of convenience, and on her assessment of the limited and insufficiently persuasive new evidence advanced to support the claim of a genuine relationship.
27. As set out in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC), a judge need not rehearse every detail provided that key conflicts are resolved with clear reasons enabling the parties to understand why they have won or lost. I am satisfied that the FTJ did that. For the reasons set out above nothing raised under either Ground demonstrates a material error of law. The decision was open to the FTJ on the evidence, and the reasoning was adequately explained.
Notice of Decision
The decision of the First-tier Tribunal does not contain a material error of law.
The appeal is dismissed.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
15.4.26