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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-005368
	First-tier Tribunal No: EA/12511/2022

 

THE IMMIGRATION ACTS

Amended Decision & Reasons Issued:

On 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE NEVILLE

 

Between

 

Francisca Boateng

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr E Waheed, counsel instructed by Abinelle Solicitors

For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

 

Heard at Field House on 14 October 2024

 

 

DECISION AND REASONS

 

1.             The background to this case was set out in the decision of Deputy Upper Tribunal Judge Chapman on 2 April 2024:

1. The Appellant is a national of Ghana born on 20 March 1982. In August 2018 she visited the UK for a holiday and met Mr Fatao Sualihu. She returned to Ghana on 7 September 2018, divorced her husband on 24 December the same year and then shortly afterwards on 31 December 2018 she underwent a proxy marriage with Mr Sualihu in Kumasi where neither party were present.

2. On 11 January 2019, Mr Sualihu arrived in Ghana and they undertook a civil marriage on 21 January 2019. On 1 July 2019 the Appellant and her two children arrived in the UK in possession of a family permit valid until 2 January 2025. However, it appears thereafter that the marriage broke down, the Appellant's husband left for Germany in March 2020 and the marriage did not resume after that point. On 6 January 2022 the Appellant initiated divorce proceedings and the divorce decree was issued on 28 January 2022.

3. On 8 August 2022, an application was made under the provisions of the EUSS on the basis that the Appellant and her children had retained the right of residence in the UK. That application was refused by the Secretary of State; the Appellant appealed against that decision and her appeal came before the First-tier Tribunal for hearing on 16 August 2023.

2.             The refusal decision, dated 21 November 2022, recorded the following reason for refusal:

You have not provided sufficient evidence to confirm that before you or the relevant EEA citizen started proceedings to terminate the marriage or the civil partnership, it had lasted for at least three years. You married your EEA citizen on 21 January 2019 and the decree absolute you have provided states your marriage was dissolved on 8 January 2022.

3.             If 21 January 2019 is the true date when her marriage was formed, rather than on 31 December 2018 as she claimed, then her marriage did indeed last for less than three years.

4.             While none of the other requirements of the relevant Immigration Rules were directly addressed, the refusal decision did state:

We have also considered whether you meet any of the other eligibility requirements under Appendix EU. However, from the information and evidence provided, or otherwise available, you do not meet any of the other eligibility requirements.

5.             The appellant's appeal to the First-tier Tribunal was dismissed by Judge M B Hussain in a decision dated 6 October 2023; the appellant's claim that the customary marriage took place on 31 December 2019 was rejected. The appellant appealed in turn to the Upper Tribunal and, following a hearing on 14 February 2024, Deputy Upper Tribunal Judge Chapman found an error of law in the way that the Judge had approached the evidence. She set aside the decision and directed that it be re-made in the Upper Tribunal.

The issues before the Upper Tribunal

6.             To decide the appeal, I first had to identify what was actually in issue between the parties. The reader so far might be forgiven for assuming that the only issue ever taken with the appellant's case was the length of the marriage. However, when making directions for the re-making of the decision, Judge Chapman also made an 'Amos direction'. The only possible purpose of such a direction is to establish whether an EEA national was a 'relevant EEA national' for the purposes of the rules. The direction was subsequently set aside on the application of the respondent, on the basis that more limited information would be provided voluntarily. At the hearing before me, Mr Parvar put forward this new issue as one that the Tribunal needed to decide. While no blame attaches to Mr Parvar, the way in which the respondent came to attempt to argue the issue at the hearing is unfortunate.

7.             First, the issue of whether Mr Sualihu was a 'relevant' EEA national had never previously been raised. While the refusal decision purports to consider whether the "other eligibility" requirements are met, the scope of that consideration is unclear. Paragraph EU11 provides only one eligibility criterion: that one of the conditions in an accompanying table is fulfilled. Three of those include being a "family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen". The definition of "family member who has retained the right of residence" in Appendix A is 1,231 words long, the definition of 'relevant EEA citizen' is 1,306 words long, and each has numerous mandatory ingredients. Furthermore, I understand that the approach to applications under the EU Settled Status Scheme is that caseworkers rejecting an application for settled status will usually look to see if pre-settled status can be granted, including on a different basis.

8.             Second, neither party in the First-tier Tribunal complied with the (then applicable) Senior President of Tribunal's Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal and the President of the First-tier Tribunal's Practice Statement No. 1 of 2022, both dated 13 May 2022. No Appeal Skeleton Argument or Respondent's Review appears in the papers, and the representatives confirmed to me that neither document was ever filed. The purpose of this procedure in the First-tier Tribunal is concisely described in the headnote of Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC), including that:

4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.

9.             Mr Parvar argued that Lata 'was not engaged' in this appeal. I disagree; the parties' obligations described by the Upper Tribunal are neither conditional nor voluntary. They include the obligation to help the Tribunal further the overriding objective. While the discrete obligation to provide a Respondent's Review under rule 24A of the First-tier Tribunal's Procedure Rules is only engaged on provision of an Appeal Skeleton Argument, the respondent remains under a continuing duty to identify the issues that arise for decision and narrow them where possible. As held in TC (PS compliance - "issues based" reasoning) Zimbabwe [2023] UKUT 164 (IAC):

1. Practice Statement No 1 of 2022 ('the PS') emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. This is consistent with one of the main objectives of reform and a modern application of the overriding objective pursuant to rule 2 of the Tribunal Procedure (FTT)(Immigration and Asylum Chamber) Rules 2014. It ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.

10.         Third, notwithstanding the failure to narrow the issues according to the correct procedures, it is clear from Judge Hussain's decision that the length of the marriage was the only issue the parties asked him to decide. This also is reflected in the way in which the appellant's evidence had been prepared. There is no trace of the respondent ever having raised any other requirements of the rules before the First-tier Tribunal, or of the appellant being put on notice that she had any other case to meet.

11.         Fourth, when the application for permission to appeal to the Upper Tribunal was granted, no rule 24 Response was ever provided by the respondent. Mr Parvar argued that such a response is only required where the respondent wishes to uphold the FtT's decision for reasons other than the ones it gave, not where additional issues are to be put forward on re-making. Even if that interpretation is correct, which I doubt, the respondent was still under a duty to make its case on re-making clear to the parties and to the Tribunal as soon as possible: see, for example, the discussion in Devani v SSHD [2020] EWCA Civ 612 at [34].

12.         Fifth, the request for the Amos direction can only have arisen because one of the parties had argued that evidence on that subject was required to decide the appeal. Yet no written explanation as to why that evidence was required was ever provided to the Tribunal by either party.

13.         Sixth, the failure to actually identify the parties' cases on any other requirements of the rules continued up to the hearing before me. Nowhere in writing does the respondent make any reasoned decision on whether the definition of relevant EEA national was met, nor indicate that it is controversial between the parties. Nor is it suggested that I must decide, and the appellant prove she meets, the many other requirements that can be found in the definitions; the respondent has always been silent on those, and remains so.

14.         The outcome of all the above is that I was asked to do what Lata confirms a judge should not be asked to do: trawl though the papers myself in an effort to identify what issues are to be addressed.

15.         Mr Parvar acknowledged that matters could have been dealt with in a clearer fashion, but argued that I was still required to determine whether Mr Sualihu met the definition of a 'relevant' EEA national. In support, he referred to the relevant ground of appeal and the authority of R. (Kwok On Tong) v IAT and another [1981] Imm AR 214. He argued that whether the issue was dealt with now, or after an adjournment out of fairness to the appellant, dealt with it must be.

16.         Mr Waheed argued that the length of the marriage was the only issue, and the work done by the appellant in relation to the EEA national precautionary in case that was wrong and she had to face that additional argument at the hearing.

Consideration

17.         I have already referred to the overriding objective, found at rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008:

2.-” Overriding objective and parties' obligation to co-operate with the Upper Tribunal

(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-”

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Upper Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Upper Tribunal must seek to give effect to the overriding objective when it-”

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must-”

(a) help the Upper Tribunal to further the overriding objective; and

(b) co-operate with the Upper Tribunal generally.

18.         Those rules are themselves made under statutory authority, by virtue of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. The principal innovation in the 2008 rules is that they place an obligation on the parties to assist the Tribunal in achieving the overriding objective. That obligation was absent from the Upper Tribunal's predecessor institutions' rules. In Lata, the Upper Tribunal held that:

27. A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT.

28. It follows that unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

19.         These observations apply equally to the Upper Tribunal. Raising a new substantive issue orally at a hearing in the above manner is inimical to the modern understanding of case management principles. A judge is entitled to find that an issue raised in this way has been raised late, and in breach of the various duties described above. The judge must then decide what action to take under rule 7(2), guided by the overriding objective to deal with the case fairly and justly. Sometimes it will be appropriate to continue with the hearing and decide the new issue. Another option is an adjournment to enable the case to be properly prepared, perhaps in appropriate cases accompanied by an order for costs against a party that has acted unreasonably. In many cases an adjournment will achieve fairness between the parties and enable the issue between them to be fairly decided. But fairness between the parties is not the only consideration. The integrity of the rules, the Practice Direction and the Practice Statement discussed so far would all be seriously undermined if a party is entitled to turn up at a hearing and demand that a new issue be addressed.

20.         In R. (Talpada) v SSHD [2018] EWCA Civ 841, Singh LJ held that:

69. [...] 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, which is an important facet of public law litigation.

21.         Those observations were made in the context of judicial review proceedings, but were subsequently cited by the Upper Tribunal in Maleci (Non-admission of late evidence) [2024] UKUT 28 (IAC) in support of its conclusion that in statutory appeals the Firs-tier Tribunal's Procedure Rules empower it to impose a sanction in the event of non-compliance with directions that leads to the exclusion of evidence.

22.         As well as rule 2, in this Tribunal the following rules are relevant:

5. (1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

[...]

7. (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just [...]

23.         I see no reason to exclude the obligation at rule 2(4) as a "requirement in these Rules" for the purposes of rule 7. As held in Maleci, rules 5(1)-(2) and 7(2) permit the Upper Tribunal to take appropriate action in response to a breach of that requirement so long as it is 'just', the word 'just' also encompassing fairness in accordance with the overriding objective. For those reasons, I consider that the available responses to an issue being raised late or improperly are not restricted to either proceeding to hear it or adjourning. A third option is to decide that the issue has not been properly raised at all, that it is too late do so now, and to exclude it from consideration.

24.         Mr Parvar argued that such an option is not available in the present appeal. The ground of appeal against the refusal decision (insofar as relevant to the present issue) is that it "is not in accordance with residence scheme immigration rules": regulation 8(3)(b) of The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (SI 2020/61). Regulation 10 requires the Tribunal to determine any matter raised as a ground of appeal. It is therefore the obligation of the Tribunal to determine whether a decision under appeal is in accordance with residence scheme immigration rules. In Kwok on Tong, Glidewell J held as follows:

Mr Collins says that since both the Tribunal and the adjudicator are to consider whether the decision is not in accordance with any immigration rules applicable to the case, they are not merely entitled but actually obliged to look at all the immigration rules to decide which is relevant, and look at the whole of any relevant rule. In this case, that is para 21. The adjudicator and the Tribunal were both perfectly entitled to look at matters and to consider and make decision upon matters which were within para 21 but not within the notice of refusal originally issued.

In my judgment that is correct. I take the view that both the adjudicator and the Appeal Tribunal are required to look at the whole of any rule to see whether or not the circumstances of a particular case appear to comply with it. If some part of it has not been specifically referred to in the immigration officer's notice of reasons that does not remove that duty or right from the adjudicator or the Tribunal.

25.         That principle was later reiterated in RM (Kwok On Tong: HC395 para 320) India [2006] UKAIT 39:

10. In  Kwok On Tong (and also in  R v IAT ex parte Hubbard [1985] Imm AR 110) the Court had to consider what the position was if a refusal of entry clearance was based on one element of the Rules, but by the time of the hearing it became apparent that there was some other requirement of the Rules which the appellant could not meet. Both those cases decide that the notice of refusal is not equivalent to a pleading; if new elements of the Immigration Rules come into play they are to be dealt with on the appeal, and the parties must be allowed any appropriate adjournment in order to avoid the injustice of being taken by surprise. The reason is the wording of s19. Even if the appellant shows that he met a particular requirement of the Immigration Rules that had been in issue at the appeal, the decision to refuse him is not a decision that was " not in accordance with the law including any applicable Immigration Rules" unless, at the time of the decision, he met the requirements of the Immigration Rules applicable to his case. To put it another way, an appellant can lose his appeal by failing to meet just one requirement of the Rules (whether specified or not in the notice of refusal), but he can win only by meeting all the requirements of the Immigration Rules (whether specified or not in the notice of refusal).

11. As at present advised, we can see no material difference in this respect between the formulation of s19 of the 1971 Act and s86 of the 2002 Act. In an appeal which depends on the Immigration Rules, an Immigration Judge is not entitled to allow it outright unless all the requirements of the Immigration Rules are satisfied. The difference in the new formulation is the phrase " in so far as", which had no equivalent in the 1971 Act, and which also appears in subsection (5), giving the basis on which an appeal is to be dismissed. [...]

26.         In my view, those authorities must now be read in light of subsequent changes to the appellate regime and the modern understanding of case management principles set out in Lata, TC, Talpada and numerous other authorities. Compared to the time of Kwok on Tong and RM, the legal landscape is very different, and so too are the applicable rules. As already noted, the Immigration Appeals (Procedure Rules) 1972 contained no equivalent to the overriding objective and the subsequent Asylum & Immigration Tribunal (Procedure Rules) 2005 contained an overriding objective at rule 4, but in more limited terms and with no obligation on the parties to help the Tribunal to achieve it.

27.         In making the 2020 Regulations, it was decided that the destination of any appeal would be the First-tier Tribunal and, on onward appeal, the Upper Tribunal. This legislative choice was made in the knowledge that appeals would be decided subject to tribunal procedure rules made under 2007 Act. That overall statutory regime informs the context in which regulation 8 should be interpreted: R. (O) v SSHD [2022] UKSC 3 at [29]. Legislation that confers a right of appeal to the First-tier Tribunal must be taken as intending that such appeals will be decided according to the 2007 Act and the relevant Procedure Rules, unless there is explicit provision to the contrary. This includes the ability to decide that a particular issue can or cannot be argued, subject to the decision being just and fair.

28.         That latter restriction is present in regulation 9, and is inconsistent with the straitjacket said by the respondent to be imposed by Kwok on Tong. Regulation 9(1) mandates consideration of any matter raised in a statement made under section 120 of the Nationality, Immigration & Asylum Act 2002. Regulation 9(5) prohibits consideration of a 'new matter' if the Secretary of State does not consent. For everything else, regulation 9(4) provides that the Tribunal may consider any matter which it thinks relevant to the substance of the decision appealed against. That discretion is consistent with a legislative intention that the appeal be progressed and decided in accordance with the 2007 Act and the Tribunal's Procedure Rules. Moreover, it is commonplace for a court or tribunal to exclude, on procedural grounds, a matter relevant to a particular right of appeal or cause of action. It is unthinkable that the drafters of the Regulations intended that in every case concerning Appendices EU and EU(FP) the Tribunal is, as stated in Kwok on Tong, "required to look at the whole of [the] rule to see whether or not the circumstances of a particular case appear to comply with it".

29.         The power to restrict the issues under appeal in this case having been identified, I decide whether to exercise it. The appropriate decision-making structure is the three-stage approach set out in in Mitchell v NGN [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906. The breach is serious. As identified above, the identification of entirely new provisions of the rules as being in issue at the beginning of a hearing is conduct from a bygone age. Whether or not a rule 24 response was technically required, written notice of an additional ground for opposing the appeal was essential for the respondent to meet her obligation under rule 2(4). No explanation has been put forward. I do take into account that the matter must have been canvassed to some extent before DUTJ Chapman, but not with any discernible outcome. Nor did Mr Parvar offer this as an excuse for the respondent's failure to set out her case.

30.         I finally consider all the circumstances, including those set out above, without repeating them. It must be recognised that the consequences to the parties of allowing the new issue to be argued are slight. The appellant was potentially ready to confront the issue without an adjournment, but Mr Waheed adopted that position with some diffidence due to not knowing exactly what position the respondent would adopt. Considering the evidence on the new issue I consider that there was a substantial risk of adjourning part-heard. A weighty factor is that identified in Mitchell and subsequent authorities, being the broader importance of compliance with procedural rules to ensure justice and safeguard resources for all court and tribunal users. Restricting the scope of the appeal will not unduly prejudice the respondent or the public; there was ample opportunity for either party to formally raise further issues, and the present case does not risk breaching the UK's international obligations or putting the public at risk. Taking all relevant matters into account, I exercise the discretion at regulation 9(4) and rules 5 and 7 of the Procedure Rules such that the only issue in the appeal is whether the marriage lasted three years.

Length of the appellant's marriage

31.         The factual issue between the parties is therefore whether the appellant's marriage took place on 31 December 2018 or, as shown on her marriage certificate, on 21 January 2019. If the former, the parties agree that the appeal will be allowed: the marriage will have lasted for at least three years prior to initiation of proceedings for its termination and the disputed limb of the definition of a 'family member who has retained the right of residence' at (d)(iii)(a) will be satisfied. If the latter, the parties agree that the appeal must be dismissed.

32.         The appellant bears the burden of proving the claimed length of her marriage, on the balance of probabilities. She gave evidence in Twi, with the assistance of an interpreter, and was cross-examined by Mr Parvar. Her account is as follows:

a.       In August 2018 the appellant's first marriage was in trouble, so she took a trip without her then-husband and with their children to the UK for a short holiday. While here, she met Fatao Sualihu, a German national living in the UK who showed her around London. The appellant returned to Ghana and divorced her first husband on 24 December 2018. She and Mr Sualihu agreed to marry, and they planned a customary marriage by proxy. It took place on 31 December 2018 at her family home in Kumasi, the two families coming together and exchanging gifts. In her witness statement she gives a detailed description of the gifts that were exchanged. Neither she nor her husband attended the wedding; the wedding being customarily by proxy, there was no suggestion that they would. Statements and affidavits have been obtained from those who attended, and photographs provided showing the date.

b.       Mr Sualihu travelled to Ghana on 11 January 2019 and they held a party to celebrate their wedding. The marriage was registered on 21 January 2019. In her oral evidence, the appellant stated that they registered the marriage so that Mr Sualihu could take the necessary steps to have her and her children come to live with him and his daughter in the United Kingdom. This was successful, the family moving to the UK on 1 July 2019 pursuant to a family permit, valid until 15 November 2019. A subsequent family permit was then granted, valid from 2 January 2020 to 2 January 2025.

c.        Unfortunately, the relationship between the appellant and Mr Sualihu deteriorated. In March 2020, shortly before pandemic restrictions came into force, Mr Sualihu travelled to Germany with his daughter. While he and the appellant remained in contact for a while, they have not lived with each other since. The appellant initiated divorce proceedings in Ghana on 6 January 2022 and the final decree was granted on 28 January 2022.

33.         None of the above is put in any doubt by the respondent save for whether the claimed proxy marriage took place on the date claimed. As to whether such a marriage would be valid, a report is provided from a Mr David Danquah of Legalstone Solicitors LLP in Accra. This states that customary marriage by proxy is recognised under the laws of Ghana subject to compliance with various requirements, and that attestation of witnesses to the marriage creates a presumption of validity. Registration of a customary marriage is not required for it to be legally valid, but the parties may nonetheless choose to register the marriage pursuant to section 2 of the Marriages Act 1884-1985 (Cap. 127). Again, the respondent disputes none of this.

34.         The first submission made against the appellant's account is that the first mention of a customary marriage occurring on 31 December 2018 is in solicitors' correspondence on the appellant's behalf sent on 3 November 2022. Each previous application, including those that were granted when the marriage continued, the application underlying this appeal, and a previously refused application made on the same basis, had given the date of marriage as 21 January 2019. Mr Parvar submitted that the appellant had refused to answer why this was, but in my assessment she simply demonstrated confusion at being asked the same question a number of times through the interpreter. Her initial answer, that she maintained, was that Mr Sualihu had been in charge of all the paperwork. He had arranged for the registration of the marriage so that the first application could be made, and was responsible for filling in all the dates. They thought that the civil registration date was the one that had to be given. The subsequent applications relating to a retained right of residence had accordingly been filled in according to what was understood from previous applications to be that approach. While that explanation must be weighed against the other evidence, nothing in its contained in the way it was delivered damaged the appellant's credibility.

35.         It was next suggested that the appellant gave an inconsistent answer to who attended the customary marriage. This included an incident during the hearing where Mr Parvar maintained that the appellant had specified family members contrary to her other answers and written evidence. That did not accord with either my notes or those taken by Mr Waheed. The solution agreed between the parties, to avoid the cost of a transcript, further submissions or a hearing, was that I would obtain and listen to the audio, make of it what I would, and decide the appeal without seeking further submissions. This was a sensible and pragmatic agreement, but unfortunately when the audio was obtained, none of what the appellant or Mr Parvar said in the hearing had been picked up by the microphones. This is regrettable, and I offer the parties the Tribunal's apologies. I conclude that there was no inconsistency, but that even if the appellant had been momentarily inconsistent, such a slip would not have materially dented what I consider to be a detailed explanation of who attended the ceremony, who did not, and why, and which came in response to numerous questions from Mr Parvar over a sustained period of time that did from time to time wrongly cause the appellant to think that she had misunderstood a previous question. The appellant also described the attendees by reference to each person seen in the photographs claimed to be taken at the customary marriage, and their number and appearance matched the evidence previously given. This was all entirely consistent. I reject a submission that she was inconsistent over her sisters' attendance, which mistook the appellant's evidence on who actually represented her family at the ceremony and who simply attended.

36.         Mr Parvar next addressed the sets of photographs that had been provided. The first set are said to have been taken at the customary marriage, when the appellant and Mr Sualihu were not present, the second on the occasion of the civil registration, when they were. I reject that the appearance of dates on the former but not on the latter is relevant to credibility. The appellant's explanation that the first set were taken on an unknown relative's camera, and the second set by themselves and others using their mobile phones, is entirely credible. Indeed, the orange, slightly blurry, superimposed dates on the first set of photographs look exactly like those produced by compact film cameras with such a feature. Of course, it must be recognised that any date can be set on the camera, or such numbers added by more modern means afterwards. The nature of the customary marriage ceremony is simply a gathering at someone's house, which would be easy to stage after the event.

37.         I consider an important feature of the photographs to be that they were provided with the present application, made on 8 August 2022. As already noted, that application form specified the date of marriage as 21 January 2019. Providing photographs of a customary ceremony bearing a date of 31 December 2018 while writing the later registration date on the form supports the appellant's explanation that she thought the date of civil registration had to be entered on to the form. While this came after the previous refusal based on the marriage lasting less than three years, giving the appellant a motive to provide doctored or staged photographs of an earlier date, such self-serving sophistication would likely have extended to writing that earlier marriage date on the application form itself. The mention of the earlier marriage date in the subsequent solicitors' letter is therefore the first time that the relevance of the date was raised, rather than the first time the date itself was put forward. This all provides further support for the appellant (and formerly her husband) being haphazard or ill-informed rather than deceptive.

38.         Taking stock so far, I consider the appellant's evidence to be cogent and consistent. The set of circumstances she describes is plausible and consistent with a reasonably detailed and complete set of documents. My chief concern is the nature of the marriage certificate. It is headed 'Certificate of Marriage', under which it states:

MARRIAGE celebrated in the KUMASI METROPOLITAN ASSEMBLY at KUMASI in Ghana

39.         The columns for the parties' details include 'When Married', under which there appears, in manuscript, '21ST JANUARY 2019 AT KUMASI'. It is difficult to read the certificate as confirming the registration of a prior customary marriage, as opposed to a formal marriage that took place on that date. This is also the date stated for the marriage on the decree of divorce. I agree that a certificate of registration of a customary marriage would be likely to say as much on its fact, given the specific statutory provision for such registration under Ghanaian law. When this was put to the appellant, she was unable to offer any explanation other than Mr Sualihu had arranged everything.

40.         Considering the evidence overall, and reminding myself that the burden of proof is on the appellant, I find it to be more likely than not that a customary marriage did take place on 31 December 2018 as claimed by the appellant, and that it was a valid marriage under Ghanaian law. The evidence has remained consistent and convincing before me, in the face of comprehensive cross-examination. It is supported by the other evidence available. The appellant has discharged the burden of proof. The inconsistency concerning the wording on the certificate is of some concern, but does not carry sufficient adverse weight in my assessment to tip the balance the other way.

41.         I therefore find that the appellant's marriage lasted at least three years and that the corresponding requirement of the residence scheme immigration rules is satisfied. The decision to refuse the application is therefore not in accordance with those rules and the ground of appeal is established.

Notice of Decision

 

(i)                  The decision of the First-tier Tribunal dated 6 October 2023 involved the making of an error on a point of law, and is set aside.

 

(ii)               The Upper Tribunal re-makes the decision by allowing the appellant's appeal.

 

 

J Neville

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

31 December 2024

 

----------------------

 

Amended on 13 February 2025 to correct typographical errors, pursuant to rule 42.

 

J Neville