Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003964
First-tier Tribunal No: HU/54728/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ODEWORITSE OGAYI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS

1. The appellant, a citizen of Nigeria, has been given permission to appeal against the decision of First-tier Tribunal Judge McLaren dismissing his appeal against the respondent’s decision to refuse his application for settled or pre-settled status under the EU Settlement Scheme (EUSS).

2. The appellant made an application under the EUSS as the spouse of a relevant EEA citizen. His application was refused on 9 September 2022, on the grounds that he had provided insufficient evidence of his marriage and had failed to attend two marriage interviews, leading to the respondent concluding that the marriage was one of convenience. The respondent was accordingly not satisfied that the appellant met the requirements for settled status as a family member of a relevant EEA citizen.

3. The appellant appealed against that decision. He did not request an oral hearing of his appeal but elected to have the appeal determined on the papers. The First-tier Tribunal proceeded to determine the appeal on the papers and, in a decision promulgated on 25 April 2026, dismissed the appeal on the grounds that the appellant had failed to show that his marriage was not one of convenience.

4. The appellant sought, and was granted permission in the Upper Tribunal, on the grounds that it was arguable that the judge had erred in law both in respect of the burden of proving a marriage of convenience, and in proceeding to determine the appeal on the papers when it was clear that credibility was a central issue in the appeal.

5. In a Rule 24 response dated 2 September 2026, the Secretary of State conceded that the appellant’s grounds of appeal identified an error of law in the judge’s decision and invited the Upper Tribunal to remit the case to the First-tier Tribunal.

6. On 13 September 2026 a Notice and Directions was sent out to the parties, in the following terms:

“In light of the concession made by the respondent, and having considered the appellant’s grounds of appeal and the grant of permission from the First-tier Tribunal, I am minded to set aside the decision of First-tier Tribunal Judge McLaren for the reasons set out in the grounds and in the grant of permission, and to remit the case to the First-tier Tribunal for a de novo hearing with no findings preserved.

Any reasonable objection to this course is to be made in writing to the Upper Tribunal not later than 5 days from the date this decision is sent out. Following that period, and in the absence of any satisfactory response, the Upper Tribunal will proceed as set out at [3] above. “

7. No response to the above has been received from either party.

8. In the circumstances, and given the terms of the directions issued to the parties, I assume that neither party has any objection to the course of action I proposed.

9. Accordingly, I set aside the decision of the First-tier Tribunal promulgated on 25 April 2026 for reason of error of law and remit the case to the First-tier Tribunal for a de novo hearing, with no findings preserved.

Notice of Decision

10. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b).

S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2026