Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001202
First-tier Tribunal No: HU/02215/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th June 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

TEMITOPE RACHEAL OSASONA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No Appearance
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 19 June 2026

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal which allowed the appeal of Ms Osasona against the respondent’s decision to refuse her application for leave to remain in the UK as a partner.
2. For the purposes of this decision, I have referred to the Secretary of State as the respondent and Ms Osasona as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.
3. The appellant, a national of Nigeria born on 15 July 1987, arrived in the UK on 16 February 2023 with entry clearance as the dependent of a student, her husband Mr Clement Omole, valid until 12 August 2024. Her leave was curtailed on 5 September 2023 with immediate effect, as her sponsor had ceased studying.
4. On 13 December 2023 the appellant made a human rights claim/applied for permission to stay in the UK as a family member (partner), as the partner of Luis Carlos De Castro Ferrao, a Portuguese national with permanent status under the EUSS/ indefinite leave to remain. She explained, in her application form, that she was divorced from Mr Omole, with a decree absolute having been issued on 3 April 2023. She claimed to have had a customary marriage to Mr Ferrao and was living with him and his daughter, MF, born on 25 March 2017, both of whom had ILR. She claimed that Mr Ferrao was the sole carer of his daughter.
5. The respondent refused the appellant’s application on 13 November 2024. The respondent considered that the appellant did not qualify under the 10-year partner route in Appendix FM, as she did not meet the eligibility relationship requirement or the immigration status requirement. With regard to the former, the respondent noted that the appellant was not legally married to Luis Carlos De Castro Ferrao as she had only provide a customary certificate from Nigeria, and she had only begun to live with him seven months before submitting her application in May 2023, so that she did not meet the definition of a partner as defined in GEN.1.2 of Appendix FM. With regard to the latter, she was in the UK in breach of immigration law and failed to meet the requirements as a partner. The respondent considered that the requirements of EX.1(b) did not apply as the appellant did not meet the definition of a ‘partner’ in GEN.1.2. She had not raised anything to suggest that she had a child in the UK and so she did not meet the requirements of EX.1(a) of Appendix FM. The respondent considered, with regard to the appellant’s private life, that she had not demonstrated any very significant obstacles to integration in Nigeria. The respondent considered further that there were no exceptional circumstances justifying a grant of leave outside the rules. Although the appellant claimed to play a role in the upbringing of her partner’s daughter, MF, she had not provided any evidence of what her duties were or that they could not be undertaken by MF’s father or mother. The respondent had regard to section 55 of the Borders, Citizenship and Immigration Act 2009 and considered that MF could continue to reside with her biological parents if the appellant left the UK. The respondent concluded that the decision did not breach the appellant’s Article 8 human rights.
6. The appellant appealed against that decision and her appeal came before the First-tier Tribunal on 21 October 2025. The judge determined the appeal on the papers, as requested by the appellant. Those papers consisted of the Home Office bundle together with an appeal bundle from the appellant which included a skeleton argument, a statement from herself and the sponsor, evidence of her customary marriage to the sponsor, her divorce certificate for her divorce from Mr Omole, MF’s birth certificate, a letter from MF’s school, the EUSS status letters for MF and the sponsor, evidence of cohabitation and her tenancy agreement with the sponsor.
7. In her statement dated 22 January 2025, the appellant stated that she met her partner on 1 April 2023, that they started living together as husband and wife from 5 May 2023 and that they got married in a customary marriage by proxy on 11 September 2023. She stated that her husband was living alone with his daughter and that they took joint responsibility for her upbringing. She stated that she met the eligibility requirements of the immigration rules because she was married to the sponsor in a marriage that was valid and recognised under Nigerian law. She had provided evidence of her parental relationship with her step-child MF.
8. The judge noted, with regard to EX.1, that MF was under 18, lived in the UK and was a British citizen. She found, on the evidence before her, that the appellant had a genuine and subsisting relationship with MF, that she had been living with MF for a period of over 2 years at the date of the hearing, and considered that it would not be reasonable for MF to leave the UK. In a decision promulgated on 10 November 2025, the judge allowed the appeal under EX.1.
9. The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds that the judge had made a material misdirection in law on a material matter and had failed to give reasons for findings on material matters, treating EX.1 as a freestanding ground. The respondent asserted that the judge had erred by considering the immigration rules to be active at the date of the hearing, rather than considering the appeal on an Article 8 basis outside the rules; that the judge had failed to give adequate reasons for finding that it would not be reasonable for the appellant’s claimed partner and his child to leave the UK; that the judge had failed to explain why she accepted that MF’s biological mother had relocated to Brazil and no longer played a part in MF’s upbringing; that it was unclear what evidence the judge had relied upon in finding that the relationship requirements of the rules were met; and that the judge had wrongly decided the case on the test in EX.1 as a freestanding provision.
10. Permission was granted by the First-tier Tribunal on the grounds that “2. It is arguable as asserted in the grounds that the Tribunal gave inadequate reasons for finding that it would be unreasonable for the child in question to leave the United Kingdom. 3. There is some overlap with other grounds and permission is granted on all of them.”
11. The matter came before me for a hearing.
12. The appellant did not attend the hearing. The notice of hearing sent to her recorded address had been returned to the court marked, “Not at this address. Never has been.”
13. I considered whether the appeal could fairly and justly be determined in the appellant’s absence. I noted that the notice of hearing had been served on the appellant at her last-known address and that it had also been emailed to her. There was therefore no proper explanation or valid reason for her absence. In the circumstances there appeared to be no reason not to proceed with the hearing. The appellant had clearly failed to advise the Tribunal of any change in address. I was satisfied that there would be no unfairness in proceeding with the appeal in the appellant’s absence. I therefore proceeded to hear submissions from Mr McVeety.
14. Mr McVeety relied on the grounds of appeal and also raised the issue of procedural unfairness, relying on the case of Ghira (R 25, AIP, Fairness) Romania [2025] UKUT 350, on the grounds that the judge had allowed the appeal on the basis of new evidence produced by the appellant which had not been served on the respondent. Mr McVeety submitted that the judge had provided no reasons why it was unreasonable for the child MF to leave the UK. He submitted that the fact that the judge had made a fee award showed that her entire approach was wrong, as she had made her decision on evidence not seen by the respondent.
15. I advised Mr McVeety that I considered that the judge had erred in law in her decision and that I would set aside her decision. I then considered the issue of disposal of the appeal.
16. In view of the fact that the appellant had not attended the hearing, that the notice of hearing had been returned undelivered, and that she had requested a papers determination of her appeal before the First-tier Tribunal, there seemed to be little point in re-listing the appeal for another hearing, either by way of a remittal to the First-tier Tribunal or a resumed hearing in the Upper Tribunal. The most appropriate course seemed to be to proceed to hear submissions from Mr McVeety with a view to re-making the decision myself on the papers before me. That was indeed McVeety’s request.
17. Mr McVeety submitted that the appeal should be dismissed. He submitted that there was no evidence to show that MF’s mother had left. The judge had relied upon evidence from MF’s school referring to the appellant as her step-mother, but that did not get the appellant anywhere as schools often had more than one person with parental responsibility and did not show that the appellant had stepped into the shoes of MF’s mother. He submitted that there was no evidence to suggest that it would be unreasonable for MF to leave the UK. Further, the note on the returned notice of hearing did not assist the credibility of the appellant’s account.
Analysis
18. The judge clearly erred in law for the reasons submitted by the respondent. I agree with Mr McVeety that procedural unfairness arose through the judge allowing the appeal on the basis of evidence which was not before the respondent and which the respondent had not had any opportunity to consider.
19. The application before the respondent was for the appellant to join her spouse in the UK, with no evidence or suggestion that she had parental responsibility for the sponsor’s child. That was the basis upon which the respondent considered and refused the application. Yet the judge allowed the appeal on the basis of there being such a parental relationship. In so doing she relied upon evidence in the appeal bundle which the appellant had produced for the appeal and which had been submitted to the Tribunal but not sent to the respondent. The appeal bundle included additional documents to those in the Home Office bundle, in particular a statement from the sponsor and a letter from MF’s school, both of which contained information upon which the judge relied in making the decision that she did, namely that the school considered the appellant to be a step-parent and that MF’s mother had relocated to Brazil. The judge accepted the evidence in the statements at face value, without the respondent having any opportunity to test the evidence or to make submissions on it.
20. Following the guidance in Ghira, it was incumbent upon the judge, in such circumstances, to consider whether, despite the fact that the appellant had requested a papers determination of her appeal, the appeal ought nevertheless be determined at an oral hearing. At the very least the judge ought to have provided the respondent with an opportunity to consider and respond to the documents and to the request for there to be a papers only determination, before she went on to determine the appeal. On that basis alone, the judge’s decision cannot stand and has to be set aside.
21. However it is also the case, as the grounds assert, that the judge erred by treating EX.1 as a freestanding provision, when the appellant was not the parent of MF and could not meet the eligibility requirements under the immigration rules on that or any other basis. Furthermore, as Mr McVeety submitted, the judge failed to give any reasons, when concluding that the requirements of EX.1 were met, as to how and why she considered it to be unreasonable for MF to leave the UK. The only reason appeared to be that MF was British. However, not only was that not a reason in itself to conclude that it would be unreasonable for MF to leave the UK, but also the evidence was that MF had permanent status under the EUSS, not British citizenship. In so far as the judge relied upon the fact that MF’s mother had relocated to Brazil and that the appellant had therefore effectively stepped into the shoes of MF’s mother, that was, as already discussed, a matter which the respondent had had no opportunity to consider and formulate a response.
22. Accordingly, for all these reasons, the judge’s decision is set aside.
23. In re-making the decision in the appellant’s appeal, it is relevant that there has been no challenge to the judge’s findings that the appellant cannot meet the immigration rules as a partner or spouse. There is no reason to go behind the judge’s decision in that regard. The documents show only a customary marriage. At the time of the appellant’s application and by her own evidence she and her partner had only lived together for a few months. The appellant could not, therefore, meet the definition of a ‘partner’ for the purposes of the immigration rules.
24. In any event, there is no evidence of the relationship between the appellant and the sponsor aside from their statements, which have not been tested and are insufficient in themselves to act as reliable evidence of the relationship. It is of some note that the notice of hearing sent to the appellant was returned marked ‘Not at this address. Never has been,’ in reference to the address where the appellant claimed to have resided and to be residing with the sponsor. I do not accept, on the limited evidence available to me, that there is or ever has been a genuine and subsisting relationship between the appellant and sponsor. However, even if there was, there is no evidence to suggest that there would be any insurmountable obstacles to family life continuing outside the UK, in Nigeria or Portugal.
25. Neither can the appellant meet the requirements of the immigration rules as a parent. She is not the mother of MF. There is, furthermore, no evidence of her role in relation to MF and certainly nothing to show that she has stepped into the shoes of MF’s mother. The letter from MF’s school states that she is recorded as a step-mother, but as Mr McVeety properly submitted, that does not mean that MF’s own mother did not play a parenting role. The only evidence suggesting that MF’s mother is not part of her life is the statement from the sponsor which has not been tested by way of cross-examination and which is not sufficient, without more, to support the claim. In any event there is no evidence before me to suggest that it would be unreasonable for MF to leave the UK. She is not a British citizen, although she has ILR in the UK. Both the sponsor and MF are Portuguese nationals. There is no evidence to suggest that MF and her father could not relocate to Portugal together with the appellant, or alternatively live together as a family in Nigeria. The appellant’s own evidence is that MF’s mother is not in the UK, so that she cannot claim that MF has parental ties to the UK. MF’s best interests would be to remain with her father and the appellant, if the relationship was as claimed, and that could be achieved by the family being together in either Portugal or Nigeria.
26. For all these reasons I do not accept that the appellant can meet the immigration rules as a spouse/ partner or parent. She cannot meet the requirements of the immigration rules on family life grounds under Appendix FM. Neither can she meet the requirements of the immigration rules on the basis of her private life, as she has not shown that there would be any very significant obstacles to her integration in Nigeria. She spent the majority of her life in Nigeria and there is no reason why she could not re-integrate into life there on her return.
27. I do not accept, on the limited evidence before me, that the appellant has an established family life in the UK with her sponsor and his daughter. However if she has, there are no exceptional circumstances which would render refusal of leave a breach of Article 8. The decision does not result in unjustifiably harsh consequences for the appellant, her partner or MF, for the reasons already given. They can relocate to Portugal or Nigeria together. They have not demonstrated ties to the UK and neither is there any reason why they could not re-establish ties to Portugal or Nigeria. The appellant came to the UK in the first place to join her then husband, but that relationship ended shortly after her arrival here and is therefore not a reason for her to remain in the UK. The respondent’s decision is accordingly a proportionate one and does not amount to a breach of the appellant’s human rights or those of her partner and his child.
28. The decision must therefore be re-made by dismissing the appeal.

Notice of Decision
29. The making of the decision of the First-tier Tribunal involved an error on a point of law. The Secretary of State’s appeal is accordingly allowed, and the First-tier Tribunal Judge’s decision is set aside.
30. I re-make the decision by dismissing Ms Osasona’s appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 June 2026