Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002105
First-tier Tribunal No: EU/57530/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

MAVIS AWARIKA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Malik, Counsel
For the Respondent: Mr S. Walker, Senior Home Office Presenting Officer

Heard at Field House on 10 September 2026

DECISION AND REASONS
1. The appellant, a citizen of Ghana, was born in 1999. She appeals against the decision (“the decision”) of First-Tier Tribunal Judge Hawden-Beal (“the judge”) dated 27 January 2026 dismissing her appeal against the respondent’s decision that she did not meet the suitability requirements for settled or pre-settled status.
2. The appellant applied on 21 April 2023 under the EUSS settlement scheme on the basis that she is the spouse of a German national with pre-settled status in the UK (“the sponsor”).
3. In the reasons for refusal letter dated 7 October 2024, the respondent sets out the reasons for refusal. In essence these are that (a) that the marriage certificate (“the marriage certificate”) provided by the appellant dated 14 December 2022 appeared to be false and, even if genuine, that the appellant had not evidenced the sponsor’s identity, nationality, or whether he had been granted settled or pre-settled status in the UK; and (b) as to whether the appellant had completed a period of less than five years’ residence in the UK, the respondent was only satisfied on the evidence provided by the appellant that she had resided in the UK for the period between February and June 2020.
4. On 10 October 2024, the appellant gave notice of appeal and elected to have her appeal determined without an oral hearing. The respondent did not object. The judge recorded at [8] of the decision that she was satisfied that it was appropriate to proceed in this way; and recorded at [10] that she had considered a 207-page stitched bundle, the contents of which she described in that paragraph as follows:
“I have had regard to the stitched 207-page bundle which includes the application form, the certificate of application, the refusal letter, her marriage certificate and the statutory declaration which accompanied its registration, the email advising her that the respondent is minded to refuse the application unless she responds within 14 days, her representatives request for an extension to that time limit, dated September 17th, 2024 because they are in the process of obtaining evidence of the authenticity of the certificate, the letters verifying the marriage certificate, the appellants and the sponsor identity documents, the evidence from 2020 mentioned in the refusal letter, her sponsor’s payslips from 2022, her divorce certificate, her statement, evidence of the sponsor’s EU status, evidence of the requested documents being uploaded on October 2nd 2024, and her skeleton argument.”
5. The judge first turned to whether the marriage certificate was genuine. Having considered at [20] that “The application was principally refused because the respondent claimed to have undertaken checks on the marriage certificate and those enquiries have established the document to be non-genuine”, the judge determined at [21] to [25] that the respondent had not discharged the burden of proof so as to demonstrate that the marriage certificate was false. The judge however went on to observe at [27] that while the marriage certificate may be sufficient to obtain an EUSS family permit to come to the UK as a family member of an EEA citizen, it is not enough to obtain permission to stay.
6. Upholding the respondent’s decision at [31], the judge gives her reasons at [28] to [30] for why the appellant failed to discharge her own burden of proof. As those reasons are at the heart of the appeal before me, I set out [28] to [30] in full.
[28] “The appellant has never applied for settled status. She accepted that she had not been in the UK for a continuous period of 5 years when she made her application because she only came here in February 2020 and made this application in April 2023. But she must demonstrate that she was here prior to December 31st, 2020, and remained here as at the date of her application.
[29] “There is no new evidence from the appellant to show that she was in the UK for the 6 months prior to December 31st, 2020, and no evidence that she was here after that other than the fact that she made this application in April 2023. There is therefore a clear gap in her evidence from July 2020 to April 2023.
[30] “In those circumstances, I am not satisfied that the appellant has discharged the burden of proof and has demonstrated that she is has met the requirements for pre-settled status because she has not demonstrated that she has completed a continuous qualifying period of less than 5 years.”
7. The grounds of appeal (“the grounds”) are dated 10 February 2026. Permission to appeal was granted by First-tier Judge Pickering on 24 April 2026. Her summary of the grounds therein is as follows:
“In the appellant’s statement §2 the appellant states that she arrived in the UK on 10 February 2020 and never left. There is also further evidence in the hearing bundle to support this. The Judge was not bound to accept what was in the statement, but it is arguable that the Judge did not make a finding and/or give sufficient reasons for rejecting this statement. The Judge states that there was no new evidence from the appellant to show that she was in the UK for the relevant time. Two points arise. Firstly, there was new evidence in the form of the statement. Secondly, it was open to the Judge even the evidence provided to the respondent to reach their own finding on this point.”
8. In his submissions, Mr Malik, appearing for the appellant, expressed his argument in three points, the first two of which are essentially the same point.
9. First, and most fundamentally, says Mr Malik, the judge did not engage with the evidence before her at all. The judge recorded in [10], as I have reproduced above, that she had the appellant’s statement (“the statement”) before her, dated 20 May 2025. Mr Malik draws particular attention to paragraphs 6 and 8 therein:
“I say that this is not so. I have lived in the UK since 2020 and provided evidence showing my residence. I have also provided this evidence again in support of my appeal. I have also included evidence that I continue to live in the UK. There is no way I could have travelled in and out of the UK without a valid visa since all I have is the visitor visa I entered with which has long expired.”
“Also, the case worker stated that my marriage certificate could not be verified. I know my certificate was issued by the right authority in Ghana. Because I do not have a valid visa, I have not been able to travel outside the UK. Therefore, this could only be done by proxy of which my husband and I followed the due process legally to acquire.”
10. The statement specifically asserts paragraph 6 that the appellant has lived in the UK since 2020 and relies on evidence including her passport, stamped only with her arrival date of 10 February 2020 (no subsequent stamps, Mr Malik submits, demonstrates that the appellant did not thereafter leave the UK); as well as a bank letter dated 25 March 2020 and a GP surgery letter dated 9 June 2020. Moreover, an explanation is given in paragraph 8 as to why she must have remained in the UK after her arrival in 2020. It is, says Mr Malik, factually wrong to state at [29] that there was “no new evidence” in answer to the reasons for refusal letter; and it was incumbent on the judge to engage with that evidence. Simply listing the documents before her at [10] does not amount to engagement with them.
11. If I am not with him on his first point, says Mr Malik, his second point is that I should nonetheless find by the same logic that the judge failed to give adequate reasons for finding that the appellant’s evidence: [28] to [30] being fatally brief.
12. His third point is not specifically articulated in the grounds, albeit no objection has been taken to its development. Mr Malik accepts that the judge has summarised the law correctly at [19] in respect of a continuous qualifying period:
“A continuous qualifying period is a period of residence in the UK and Islands (a) which, unless the person is a joining family member of a relevant sponsor, began before the specified date; and b) during which none of the following occurred i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period et al, and (c) which continues at the date of application.”
13. However, this is not the test the judge applied at [29]. Mr Malik argues that it is not only that the judge failed adequately to engage with the evidence: she also misapplied the law.
14. For the respondent, Mr Walker accepts that the judge’s analysis of the appellant’s evidence is contained entirely in [28] to [30], with [29] being the pivotal paragraph. In addressing Mr Malik’s first two points, however, he says there is no material error of law. It can be inferred from the judge’s having listed the evidence at [10] that she has engaged with it. But in any event, the evidence does not help the appellant. The respondent already accepted in the reasons for refusal letter that the appellant resided in the UK between February and June 2020, which is exactly what the documents highlighted by Mr Malik demonstrate. They do not demonstrate a longer period. As to the third point, Mr Walker concedes that the judge does appear to have applied the wrong test at [29], which has arguably led to unfairness in the decision. But the judge has been clear that the appellant’s evidence is inadequate overall: and so if there is unfairness, it is immaterial to the decision.
15. I do consider that there is a material error of law in the judge having unambiguously applied the wrong test at [29]. However, while material, it only compounds the main flaw in the decision. The fundamental error of law is that the judge has simply not engaged with the appellant’s evidence in any substantive way; and certainly not so as to provide adequate reasons for rejecting it. The appellant did in fact provide, contra [29], “new” evidence in response to the reasons for refusal. That evidence included, expressed however briefly, the contention that she was unable to leave the UK following her arrival. The decision did not engage with that contention, nor the evidence the appellant supplied in support of that contention. This is a fatal flaw that cannot be answered by now criticising the range or weight of that evidence: whatever its cogency, the appellant’s case still had to be considered by the judge; and it was not.
16. I am invited by Mr Malik to preserve the findings leading to the overall finding at [25] that the respondent did not prove the marriage certificate is false. There is no objection to this from Mr Walker if, as I do, I remit the matter to the First-tier Tribunal, this time for an oral hearing. I do not regard the findings at [21] to [25] as in any way contaminated by the errors of law identified above and I do preserve them. For the reasons above it is plain that, with those findings preserved, the matter will need to be considered de novo.
Notice of Decision
1. The judge’s decision involved the making of errors of law and is set aside.
2. I preserve [21] to [25] of the decision.
3. The matter is remitted to the First-tier Tribunal to be heard by a different judge.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 September 2026