BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI202500285 [2025] UKAITUR UI202500285 (14 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI202500285.html
Cite as: [2025] UKAITUR UI202500285

[New search] [Printable PDF version] [Help]

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-00285

First-tier Tribunal No: EU/53040/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

14 th May 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

 

Between

 

FAUZIA ADAMS

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Glass, Counsel instructed by Adam Bernard Solicitors

For the Respondent: Mr Parvar, Senior Presenting Officer

 

Heard at Field House on 26 March 2025

DECISION AND REASONS

Introduction and background

1.              The appellant appeals with permission the decision of First-tier Tribunal Judge Courtney dated 11 November 2024, dismissing her appeal against the respondent's refusal of her application under the EU Settlement Scheme.

2.              The appellant is a national of Ghana. She applied on 3 January 2024 for a Family Permit under the EU Settlement Scheme as the partner of the sponsor Mohammed Adams.

3.              On 21 March 2024 the respondent refused that application. The basis of the respondent's refusal was her doubts about the appellant's marriage to the sponsor. In particular, the respondent was concerned that the marriage had taken place when the appellant was 20 years old, and UNICEF data said that marriage was not permitted in Ghana below 21 absent parental consent. There was no evidence such consent had been given. The Entry Clearance Officer was consequently "unable to verify" that the marriage was contracted in accordance with local laws. The time of the marriage was not included on the marriage certificate. Also, in the sponsor's application for pre-settled status he had said that he had been married in Sweden, rather than Ghana as on the marriage certificate. As a result the Entry Clearance Officer did not accept that the appellant was the "family member of a relevant EEA citizen".

4.              The appellant appealed. The appellant asked that the appeal be dealt with on the papers and without a hearing pursuant to Rule 25 of the Tribunal Procedure (First-tier tribunal) (Immigration and Asylum Chamber) Rules 2014. Accordingly, no oral evidence was heard.

5.              The appellant's decision to proceed without calling oral evidence was frankly surprising in view of the fact that the genuineness of her marriage was placed squarely in issue by the refusal decision. Certainly, that was the view of the Judge, who was particularly troubled by the fact that no evidence had been adduced to address the discrepancy in the documents regarding whether the sponsor was present when the appellant and sponsor were married.

6.              The Judge dismissed the case. The Judge pointed out that the respondent's concerns about the inconsistency as to where the sponsor had been at the time of the wedding were not addressed by the appellant's skeleton argument, which simply pointed out where she had been at the time of the wedding. This inconsistency, key to the ECO's decision, was entirely unaddressed save implicitly. As to that, although the sponsor's passport was produced showing date stamps that supported his case to have been in Ghana at the operative time, the passport itself was not issued until after those dates which the Judge also considered troubling.

7.              From that point the Judge purported to take judicial notice of the effect of Ghanaian matrimonial law. The Judge accepted the ECO's interpretation of that legislation, to the effect that the appellant should have provided evidence of the permission of a parent to marry in order to show that the marriage was genuine. She had not. The Judge dismissed the evidence of the Marriage Registrar that was submitted in a letter dates 2 July 2024, based on his own reading of the legislation. As a result the Judge decided that the appellant had not shown that she was a family member of the sponsor as claimed.

Grounds of appeal

8.              In R (Talpada) v The Secretary of State for the Home Department [2018] EWCA Civ 841 Singh LJ said as follows (at [68-69]):

"... it is important that the grounds of appeal should be clearly and succinctly set out... Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest...."

9.              In Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) the Upper Tribunal said this (Headnote):

"... the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party."

10.          On no view could the grounds that were advanced in this case be said to have specified clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the Judge Courtney's decision. They have not, on any view, been properly pleaded.

11.          Instead, the appellant's legal representative (not Ms Glass) appears to have copied and pasted the skeleton argument that had failed before the FTTJ (as explained above, because it did not deal with the essential points) with one minor addition; the statement that the appellant is seeking to appeal the decision of First-tier Tribunal Judge Courtney.

12.          The only other apparent change is that the "reasons for appeal" document also removes an odd paragraph from the document before the FTT, raising the intention to "amplify" the skeleton argument should "significant evidence emerge that marriage certificate is fictitious".

13.          The application for permission to appeal came before First-tier Tier Tribunal Judge Monaghan. The application was late but Judge Monaghan extended time. Judge Monaghan noted, as explained above, that the grounds were "drafted as an appeal against the Respondent's decision rather than an application for permission". Nevertheless Judge Monaghan considered that it was possible to discern three grounds:

    1. Ground 1: The Judge arguably erred when assessing the evidence in relation to the marriageable age in Ghana;
    2. Ground 2: The Judge arguably erred in the manner in which he dealt with the lack of a time of the marriage on the marriage certificate;
    3. Ground 3: The Judge arguably erred in assessing the evidence in relation to whether the sponsor was residing in Sweden and whether the marriage was registered in Sweden.

14.          Judge Monaghan granted permission on Grounds 1 and 2 and refused permission on Ground 3.

15.          We make no criticism at all of Judge Monaghan formulating the grounds as she did. However had she declined to do so, and refused permission on the basis that the document advanced did not even remotely attempt to engage with Judge Courtney's reasoning, there could not have been any criticism of that approach either. A judge considering an application for permission to appeal is not panning for gold. Discerning the grounds of appeal should not involve guesswork.

16.          We shall refer to the consequences that arise as a result of these procedural issues below.

The hearing

17.          We are grateful for the submissions of Ms Glass and Mr Parvar.

18.          We note that Ms Glass was not the author of the grounds of appeal, and it is unsurprising that when asked by the panel she was unable to identify which paragraphs of the "reasons for appeal" referred to which ground. We make no criticism of her. It was concerning however that she had not been provided even with instructions as to what a response might be to Judge Courtney's concern that a passport with stamps in it said to indicate the sponsor was present in Ghana when the marriage took place appeared on its face to have been issued after the marriage took place. There might well have a been a sensible reason for that. However it was an issue that clearly called for an answer and we have had none.

19.          The panel drew the parties' attention to the decision of the Upper Tribunal in Hussein & Anor (Status of passports: foreign law) Tanzania [2020] UKUT 250 (IAC), which does not appear to have been brought to the attention of Judge Courtney. As the headnote in that case records:

"Foreign law (including nationality law) is a matter of evidence, to be proved by expert evidence directed specifically to the point in issue."

20.          At [9] of that case the Upper Tribunal noted:

" First, foreign law is a matter of fact and must be proved by evidence.  It is not sufficient to produce Tanzanian statutes and assert that the statute represents the whole of the law on the subject.  A moment's consideration shows why that is so: it is absurd to suggest that a person who had access to the Queen's Printer's copy of the British Nationality Act 1981 would be able to deduce reliably from it the status of any postulant for nationality: it has been subject to numerous amendments, and it says nothing about the operation of policy or prerogative.  Foreign law needs to be proved by expert evidence directed precisely to the questions under consideration, so that the Tribunal can reach an informed view in the same way as anybody taking advice on an unfamiliar area of law."

21.          It was Ms Glass's position that, applying Hussein, the question of whether the appellant could have married the sponsor as claimed was one of evidence. The evidence of the Registrar was in that regard expert evidence.

22.          Mr Parvar rightly noted that the burden of proof was on the appellant. His position was that the letter from the Registrar was clearly unreliable. He said that it was entirely permissible to challenge the reliability of the Registrar's letter without the Respondent adducing expert evidence herself. He relied in particular on the Judge's findings in respect of the passport. In respect of Ground 2, he pointed out that the Judge had not actually relied on the discrepancy in respect of the time of day that the marriage had been recorded at.

Decision and reasons

23.          There is no doubt in our view that Judge Courtney fell into error in looking for himself at what was required by Ghanaian matrimonial law. It was not a matter for judicial notice.

24.          This was precisely the issue in CS and Others (Proof of Foreign Law : India) [2017] UKUT 199 (IAC) where the Upper Tribunal held:

"It is long settled that in United Kingdom legal proceedings, foreign law is capable of being proved by the evidence of a person possessing demonstrated expert credentials. This, in our experience, is the norm in a broad range of litigation fields.... Evidence presented in this way need not necessarily be viva voce. Rather, an expert's report, satisfactory in both form and content, can be acceptable. The burden of proof rests on the party relying upon the relevant foreign law. Any question of foreign law is one of fact. Judicial notice of foreign law is rarely appropriate."

25.          The appellant had relied on the letter from the Registrar which felt to be treated, in our view, as expert evidence on the question of Ghanaian matrimonial law and had not been challenged as fraudulent. Applying Hussein, if the respondent wished to challenge the lawfulness or validity of the marriage she was required to produce expert evidence on that issue. She did not.

26.          We accept Mr Parvar's submission that Ground 2 is not made out for the reasons he gave. The absence of a specific time in the wedding certificate is not a matter on which Judge Courtney actually relied.

27.          A far more difficult question is what the consequences of the identified error are. It remains the case that concerns raised by the Entry Clearance Officer are entirely unanswered.

28.          Specifically, firstly, the discrepancy in the documents as to where the sponsor was when the marriage was said to have been contracted. There was no evidence on this point. This was a matter that troubled Judge Courtney, and indeed remained unaddressed even before us.

29.          Secondly, Judge Courtney clearly gave significant weight to the fact that the passport purporting to show stamps proving that the sponsor had been in Ghana at the time of the wedding also appeared to have been issued after the wedding. It is extraordinary that we were left without any answer to that. As noted above, it is most surprising that in a case where the credibility of a marriage was in issue the decision was made to proceed on the papers alone.

30.          We are consequently left with the fact that there were concerns about the credibility of the marriage raised by the Entry Clearance Officer and unaddressed by the appellant and then relied on by the Judge. There was, moreover, a clear and concerning discrepancy on the papers advanced before him. Those issues, which remain unanswered, were sufficient to dispose of the appeal irrespective of the erroneous investigation into issues of foreign law.

31.          It follows that the error of law is not material and the appeal must be dismissed.

Hamid warning

32.          The concerns we had in respect of the conduct of this case by the appellant's representatives Adam Bernard Solicitors, in particular in respect of the drafting of grounds of appeal, are set out in some detail above and are not repeated. Ms Glass was asked to convey the panel's view on those issues to her instructing solicitors by reference to the judgment in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin). She assured us that the message would be conveyed. Should those matters recur before another tribunal or court, it may be that further steps are taken.

Notice of Decision

The decision of First-tier Tribunal Judge Courtney promulgated on 11 November 2024 did involve the making of an error of law but that error was not material and so the determination stands. The appellant's appeal is dismissed.

 

Greg Ó Ceallaigh KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 12 May 2025 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010