Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001048
First-tier Tribunal No: EU/53090/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 15th of September 2026

Before

DEPUTY UPPER TRIBNAL JUDGE SYMES

Between

NAR BAHADUR SUNAR
(NO ANONYMITY ORDER)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Ferguson, Counsel instructed on behalf of the appellant
For the Respondent: Mr E Tufan, Senior Presenting Officer

Heard at Field House on 30 June 2026

DECISION AND REASONS

1. The Appellant appeals against the decision of the First-tier Tribunal (of 22 December 2025) dismissing his appeal, itself brought against the Respondent’s refusal (of 18 December 2021) of his application under the EU settled status scheme.

2. The case turns on the genuineness of the Appellant’s marriage to his (alleged) EU partner, Ines Queiros Ferreira Lopes, a Portuguese national. They began living together in June 2014, married on 12 December 2014 in Wood Green, London, and separated in 2024.

3. The most significant feature of the Appellant's history is a previous unsuccessful appeal, whereby Judge Meah in his decision of 9 January 2017 concluded that the Appellant and his partner were not in a genuine relationship. Central to that appeal was a marriage interview conducted at a home visit (when Ms Lopes was absent) by the immigration service from which the Respondent identified various concerns with the Appellant’s answers.

4. In Judge Meah’s view, at the hearing before him the Appellant and his spouse had given very different answers in their oral evidence to a significant number of questions which genuine partners could be reasonably expected to have answered consistently, including whether the Appellant made regular payments to his wife. It had been claimed that she had absent from their (alleged) shared home at the time of the home visit because she was staying in Portugal for several months to care for her sick mother; but there was no evidence of her mother’s illness. Judge Meah concluded that the Appellant had “failed to discharge the burden which rests upon him to prove his case to the requisite standard under the relevant provisions of The EEA Regulations.”

5. On the present appeal, Judge Scullion rightly took Judge Meah’s findings as the starting point. The Judge acknowledged the Appellant’s explanation for his former partner’s absence from the latest hearing, which was that he had not asked her to come as he wished to expect her privacy, but noted that the Appellant nevertheless expected to reach out to her to progress their divorce. In those circumstances her failure to attend the hearing or even provide a witness statement was a matter of concern. The Judge noted the documentary evidence attesting to cohabitation by way of tenancy agreements and bank statements, and questioned the relevance of a driving licence from one individual (in fact this was the document provided simply to confirm the identity of one of the supporting letter writers). Judge Scullion concluded:

“I remind myself that the burden of proof rests on the appellant to prove his case. Taking all my findings and all the evidence in the round, I find that the appellant has failed to discharge the burden which rests upon him to prove his case to the requisite standard under the relevant provisions of EU Settlement Scheme.”

6. Grounds of appeal (slightly restructured by myself for ease of expression) contended that the First-tier Tribunal had erred in law by:

(a) Wrongly directing itself to the burden of proof being on the Appellant, when an allegation of dishonesty required the Respondent to discharge the burden;

(b) Failing to properly engage with the documentary evidence of cohabitation, and thus failing to properly apply the Tanveer Ahmed principle which required the evidence to be assessed in the round and failing to properly apply the Devaseelan principle;

(c) Effectively treating the attendance of the Appellant’s wife as essential for him to establish their relationship’s genuineness;

(d) Generally failing to provide adequate reasons or assess the appeal with anxious scrutiny.

7. Judge Singer refused permission to appeal for the First-tier Tribunal on 18 February 2026, but Judge Hirst granted permission for the Upper Tribunal on 21 April 2026.

8. For the Appellant Ms Ferguson submitted that the First-tier Tribunal had clearly misstated the legal burden, which was a material error of law because there was evidence by way of a joint bank statement with meaningful deposits plus witness statement evidence which could have persuaded the Judge to come to a different conclusion had it been evaluated through the appropriate prism.

9. For the Respondent Mr Tufan submitted that the First-tier Tribunal had made findings open to it on the evidence and there was no evidence of sufficient weight to displace Judge Meah’s decision as the starting point, particularly when the most recent documents dated from 2021. The reference to the burden of proof, in this context, should be taken as to the shifting evidential burden rather than the ultimate legal one.

Discussion

10. I accept that the First-tier Tribunal misstated the burden of proof (perhaps Judge Scullion was led into error by Judge Meah’s earlier misstatement to similar effect) and thus erred in law. However, I do not think that that was a material error of law. The legal burden of proof is essentially a forensic device to resolve a question of fact where the judge has some significant doubt on the issue; the party that bears the burden will have the doubt resolved against them. Thus the burden of proof operates differently from the standard of proof, as the latter essentially acts as the prism via which evidence is generally assessed. There is also the related question of the evidential burden of proof, but it could hardly be disputed in this case that the past findings of Judge Meah were sufficient to raise a prima facie case of dishonesty. This is not a case where either Judge who heard the successive appeals was in any doubt as to the right outcome. Judge Meah’s findings were damning and Judge Scullion was entitled to treat them as the starting point and to find that the evidence before him was inadequate to lead to a different conclusion.

11. The Appellant commenced the instant appeal with the significant disadvantage of his evidence, and that of his spouse, having been resoundingly rejected by the Judge who first heard their oral evidence. On the present appeal he provided a witness statement which suggested explanations for some of the difficulties identified by the Respondent with his evidence, which he generally attributed to “brain fog” arising from being awoken by the officers conducting the marriage visit after only a few hours of sleep. Although the witness statement commences with a stated intention to give a complete and unvarnished account of his relationship with Ms Lopes, it contains very little information in that regard save for the early days of their courtship and then the fact of their marriage. There is nothing said of the details of their common life together from 2014 to 2024. The explanations for the discrepancies identified by the Respondent barely engage with Judge Meah’s detailed findings and no attempt is made to delineate what explanations were proffered to Judge Meah upon which the present suggestions were said to improve. It is said that the "discrepancies" in Ms Lopes’s evidence “were the result of paralysing performance anxiety, not deception” but there is nothing to back that up; it is not especially difficult for a witness, even a young one, to answer simple questions about their own marriage.

12. As to the second ground, Ms Ferguson emphasises the various bills and account statements placing the Appellant and Ms Lopes at the same addresses in Edgware and Harrow. But there is very little in the evidence to support an inference that they were in a genuine relationship rather than simply living at the same address. The strongest evidence is a joint bank statement from January 2020 into which some payments of up to a few hundred pounds were made by both the Appellant and Ms Lopes. But other documents raise questions: one, apparently dated November 2017, writes to Ms Lopes on the basis that she has a toddler approaching one year of age, though it is not otherwise suggested that she and the Appellant have had a child together. These documents were not in fact particularised by the Appellant’s skeleton argument below and I do not consider that the First-tier Tribunal was required to trawl through them in any greater detail than it did to balance up the competing possible inferences to determine if any in fact offered meaningful corroboration of the assertion of living together as partners rather than simply as friends. There were some letters from friends briefly attesting to the relationship’s genuineness, though none of these individuals came to court for their evidence to be tested and their letters are not of a cogency that could have displaced the Judge’s conclusions.

13. The third ground asserts that the presence of Ms Lopes was effectively treated as mandatory. I do not think that quite captures the reality of this appeal. This was an Appellant who had already been the subject of significant adverse credibility findings on appeal, flowing originally from the unsatisfactorily explained long-term absence of Ms Lopes from their accommodation at the time of the home visit and interview. His evidence could not realistically be accepted without corroboration. Doubtless one could hypothesise alternative forms of evidence that might have sufficed, such as a number of witnesses to the relationship when it remained extant attending the Tribunal and withstanding cross examination. But from the starting point of Judge Meah’s findings, it is difficult to imagine anyone else other than Ms Lopes being able to reliably persuade the trier of fact that theirs was a genuine relationship.

14. The fourth ground is something of a makeweight. Whilst Judge Scullion expressed himself with a little more concision than might be ideal, to my mind no more reasons were required than he provided, having regard to the factual matrix above. The reasons for the Appellant's appeal’s failure are obvious to any pragmatic and fair-minded reader of the decision. The short point is that the oral evidence of the Appellant and Ms Lopes was resoundingly rejected by the only Judge who heard from both of them, and the evidence subsequently adduced fell far short of what was required to displace that starting point.

15. The appeal is dismissed.

Notice of Decision:

The decision of the First-tier Tribunal did not involve the making of a material error on a point of law; its decision shall stand. The appellant’s appeal is dismissed.

15 September 2026

Upper Tribunal Judge Symes

Judge of the Upper Tribunal
Immigration and Asylum Chamber