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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005403
	On appeal from: EU/50296/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

18 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE GLEESON

DEPUTY UPPER TRIBUNAL JUDGE DURANCE

 

Between

 

LINDA UGOCHI ANYANWU UCHECHUKWU

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Entry Clearance Officer

Lagos

Respondent

Representation :

 

For the Appellant: Dr David Akin-Samuels, solicitor with Church Street Solicitors

For the Respondent: Ms Julie Isherwood, a Senior Home Office Presenting Officer

 

Heard at Field House on 4 February 2025

 

DECISION AND REASONS

 

Introduction

 

1.               The appellant challenges the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision on 22 December 2023 to refuse her application for settlement in the UK as the family member of a relevant EEA citizen, pursuant to the EU Settlement Scheme (EUSS) and Appendix EU (Family Permit) to the Immigration Rules HC 395 (as amended). She is a citizen of Nigeria.

 

2.               Mode of hearing. The hearing today took place face to face. We are satisfied that the hearing was completed fairly, with the cooperation of both representatives.

 

3.               For the reasons set out in this decision, we have decided that this appeal must be dismissed.

 

Procedural matters

 

4.               Non-compliance with Electronic Bundle Guidance. We record that the appellant's representatives failed to comply with the Directions issued by the Upper Tribunal following the grant of permission to appeal. The Directions issued made it clear that:

 

(a)           No later than 10 working days before the hearing of the appeal, the appellant was required to provide to the Upper Tribunal and the respondent a composite electronic bundle complying with the Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC); and that

 

(b)          The composite bundle must contain identified documents in a structured way.  

 

5.               The appellant's representatives were reminded, by letter dated 22 January 2025 of their failure and the requirements, with information and instructions on how to comply with the Upper Tribunal's e-filing procedure.

 

6.               No composite bundle was received. We have reminded Mr Akin-Samuels of the need to comply with the directions issued and that in the future, non-compliance, absent good reason, is likely to be met with sanctions. We asked Mr Akin-Samuels to arrange for his senior partner to write to the Tribunal explaining why these directions were ignored. Nothing has yet been received.

 

Background

 

7.               The appellant claims to have undergone a form of marriage to the sponsor, a German citizen, on two occasions: first, by proxy in Nigeria in 2020, during the Covid-19 pandemic, and again in a civil ceremony held at the Federal Marriage Registry in Ikoyi, Lagos, on 2 June 2023. The sponsor is an Assistant Practitioner Nurse at Camden and Islington NHS Foundation Trust. He has held EUSS settled status (indefinite leave to remain) since 30 October 2019.

 

8.               The parties had not met in person before the claimed proxy marriage. They 'reconnected' during 2019 over Facebook but no Facebook evidence was available because the sponsor's Facebook account was said to have been hacked in 2023.

 

9.               The evidence produced to support the parties' 2020 proxy marriage consisted of a document purporting to be a Proxy Traditional Marriage Certificate issued by Warri North Local Government Council, Koko, Nigeria; a letter purporting to be from the Registrar responsible for registration of customary marriages in Warri North Local Government Council, Delta State of Nigeria; and affidavits from the appellant's two brothers confirming their consent to the marriage and that the bride price of Naira 5000 had been paid. All of these documents bear the date of 26 September 2020.

 

10.           The appellant accepts that a second, civil marriage ceremony, which occurred after the specified date of 11 p.m. on 31 December 2020, cannot avail her in an EUSS application.

 

 

11.           The sponsor produced evidence of a divorce in Germany confirming that he was free to remarry. The respondent does not challenge that part of the evidence.

 

Refusal letter

 

12.           The appellant was on notice of the defects in her evidence which caused the respondent to refuse her entry clearance. In her refusal letter on 1 January 2024, the respondent observed that:

 

" The provided marriage certificate does not appear as we would expect from an official document as issued by the relevant competent authorities of Nigeria, and does not show a number of key bits of information that would confirm the details are correct and relevant to yourself and your EEA sponsor.

 

The document you provided only lists your and your EEA sponsor's names, with no other identifying details demonstrated within this document such as age or date of birth, nationalities, registered addresses or marital status prior to the stated marriage.

 

This suggests that no form of ID was provided for your marriage ceremony or marriage registration, or otherwise casts doubts on the details of the marriage certificate or on the document itself."

 

13.           The respondent was concerned that the supporting evidence provided did not assist her and that there was no evidence that the parties had met, before or after the proxy marriage. She did not accept that the parties were in any form of genuine or durable relationship and therefore concluded that the appellant is not an EEA spouse under the EUSS.

 

14.           The appellant appealed to the First-tier Tribunal.

 

First-tier Tribunal decision

 

15.           Mr Oghenekevwe Omoniruvbe, a Director of Church Street Solicitors, appeared for the appellant in the First-tier Tribunal. The appellant had taken no steps to improve the evidence regarding her proxy marriage, although there were photographs and Facebook posts from the second, civil ceremony in 2023.

 

16.           The First-tier Judge found that the Warri North proxy traditional marriage certificate appeared unreliable. There is no reference to the Tanveer Ahmed test for documentary reliability, but that is clearly what the Judge had in mind.

 

17.           At [11] in his judgment, the First-tier Judge set out the major difficulties with the documents produced:

 

" 11. On the evidence before me, on balance, I am not satisfied the appellant and sponsor have provided a truthful account of their claim to have validly married by proxy on 26/09/20 or that the appellant has evidenced that she is a family member of a relevant EEA Citizen, because:

(a) The appellant relies on a document headed from the Warri North Local Government Council, Koko, which is said to be a proxy traditional marriage certificate. This certificate does not contain the parties' dates of birth, nationality, address or the addresses of their witness. It does not say where the proxy marriage took place. Whilst the sponsor in oral evidence said he thought dates of birth and addresses were not needed and they were not asked for, he then said a copy of their birth certificates and passports were provided - but there is nothing on the face of the proxy marriage certificate to indicate this was the case.

 

(b) The letter the appellant relies on, said to be from the registrar at the Warri North Local Government of 29/09/20 (This letter does not provide a postal address, e-mail address or telephone number) does not include the parties' dates of birth, address or any ID information for them. The appellant was aware of the respondent's concerns regarding the documentary evidence as set out in the reasons for refusing her application and it was open to her to obtain confirmation from the registrar that identifying information, in a proxy marriage certificate, is not required. She has not.

 

(c) Whilst the appellant relies on various legislation from Nigeria, it has not been set out in what way this addresses the basis of the respondent's concerns. The burden is on the appellant, and it is not for me to investigate the laws of Nigeria. Consequently, I am not satisfied, on balance, that the claimed proxy marriage was performed and/or that it satisfies the law in Nigeria.

 

(d) The parties are said to have married civilly in a registry office on 02/06/23, but this was after the specified date. The appellant did not provide a copy of this civil marriage certificate with her application, (which does give dates of birth and addresses), nor did she make any mention of them marrying civilly. It is claimed the rationale for the re-marriage is because the appellant said it provided more protection for them as it would be recognised worldwide. If as the parties now claim the proxy marriage is valid, there would be no need for the re-marriage, and this too causes me to find the appellant has not addressed the basis of the respondent's refusal, nor that the proxy marriage is valid as claimed.

 

(e) The sponsor in oral evidence said there was no evidence of his relationship with the appellant because his Facebook account had been hacked in April 2023. Yet, he did not suggest her Facebook account had also been hacked. That being so, if there was any evidence of the parties being in a relationship from when they claim to have 'reconnected' in June 2019 on Facebook, to when they claim to have married by proxy in September 2020, or civilly on 02/06/23, there is no reasonable explanation as to why it has not been produced to address the respondent's concerns given the parties were aware of the basis of the refusal."

[ Emphasis added]

 

18.           The First-tier Judge dismissed the appeal.

 

19.           The appellant appealed to the Upper Tribunal.

 

Permission to appeal

 

20.           Upper Tribunal Judge Reeds granted permission to appeal, summarising the appellant's grounds of appeal as follows:

 

" ...3. The paragraphs in the grounds between 1-13 seek to challenge the reasons given at paragraph 11 (a)-(f). The respondent's case was that there were inconsistencies in the evidence issued by the relevant competent authority in Nigeria (see paragraphs 5 - 7 of the decision). The appellant asserted that she and sponsor were married by proxy on 26 September 2020 with the marriage being registered on that date in accordance with Nigerian law.

 

4. Paragraph 11 of the grounds cites the decision in Awuku. In the law of England and Wales the general rule is that the formal validity of a marriage is governed by the law of the country where the marriage was celebrated ("the lex loci celebrationis"). In general the law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted: Sotomayor v De Barros (No.1) (1877) 3 P.D. 1, 5 (CA) confirmed in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178, [2017] Imm. A.R. 1066.) The decision letter did not assert that the document produced was not genuine but that "it did not appear as we would expect" without providing any objective support. The appellant provided the marriage certificate and also letter from the registrar and affidavit; the documents referred to Section 30 of the relevant Act. In the circumstances I am persuaded that there is an arguable error of law in the assessment of the documents given that there is no place for the information suggested by the [First-tier Judge] to be provided, and the material appears to be consistent with the respondent's guidance ( see p78AB). It is also not clear what materials provided in respect of the laws of Nigeria as referred to by the [First-tier Judge] at paragraph 11( c). The appellant's representatives will be required to explain that evidence.

 

5. As to the other paragraphs in the grounds (paragraphs 14-16 in relation to the Facebook evidence, paragraphs 17 - 18 relating to calling cards and paragraphs 19-20 concerning travel), [these] seek to assert procedural irregularities at the hearing which affected the evidence. There does not appear to be any reference in the decision to any difficulties at the hearing nor is there any reference to difficulties being raised by the representatives to the [First-tier Judge]. There is no reference at all to the mode of the proceedings save that it was held at a "Virtual Region" which I take to mean it was conducted remotely. A transcript or notes/record of the proceedings from the representatives present will be required to be filed and served if these paragraphs are to be relied on ."

[ Emphasis added]

Rule 24 Reply

 

21.           There was no Rule 24 Reply on behalf of the respondent.

 

22.           That is the basis on which this appeal came before the Upper Tribunal.

 

Upper Tribunal hearing

 

23.           The oral and written submissions at the hearing are a matter of record and need not be set out in full here. We had access to all of the documents before the First-tier Tribunal and in addition, the Home Office Presenting Officer's notes of the First-tier Tribunal hearing. Ms Isherwood indicated that in the absence of a bundle, she had prepared for the hearing using the First-tier Tribunal's CCD database.

 

24.           On the eve of the hearing, Ms Isherwood made available Presenting Officer notes. They record that at the beginning of the hearing, there was a discussion about CVP issues with the representatives' side which was treated as a preliminary issue. There is no record of CVP issues when the sponsor was giving his evidence.

 

25.           The Home Office note records that the sponsor adopted his witness statement and confirmed his name and address. The Judge then asked a number of questions, before Mr Chowdhury's cross-examination. Neither party is recorded as objecting:

 

" Can you explain to the court ... Judge interrupts and stops them to gain permission to ask additional information as to why things are not in the statement. Representative says it is a result of the [respondent's] review.

 

Can you explain why you have not presented evidence of your relationship from your partner from 2019-2024? After I met her through the Facebook, I wasn't able to provide as my Facebook was hacked.

 

When? In April 2023.

 

No further questions."

 

26.           Following the Judge's interruption, the Presenting Officer cross-examined the sponsor. The sponsor's evidence was that the parties had met on Facebook only, on 1 April 2005, reconnecting over Facebook in June 2019 (when the sponsor's own EUSS application may well have been pending).

 

27.           Despite their proxy marriage and courtship, the parties had not met in person until 2023.

 

28.           We reserved our decision.

 

Legal framework

 

29.           In assessing the reliability of documentary evidence, we are guided by STARRED A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439 (19 February 2002) ( Tanveer Ahmed):

 

" 38. In summary the principles set out in this determination are:

 

1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

 

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

 

3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2."

 

30.           The First-tier Tribunal is recognised as a specialist fact-finding Tribunal and our Tribunal is required to exercise judicial restraint in its oversight of the First-tier Judge's reasoning: see Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26] in the judgment of Lord Justice Green, with whom Lord Justices Lewison and Andrews agreed.

 

31.           In Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) at [2]-[5] in the judgment of Lord Justice Lewison, with whom Lord Justices Males and Snowden agreed, the Court of Appeal held that an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal only where such a finding is 'plainly wrong' or 'rationally insupportable'. At [2], the Court set out well-settled principles for reviewing findings of fact and credibility:

 

" 2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

 

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

 

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

 

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

 

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

 

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

 

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. ...

 

5. Tribunals are free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Whether any positive significance should be attached to the fact that a person has not given evidence, or to the lack of contemporaneous documentation, depends entirely on the context and particular circumstances: Royal Mail Group Ltd v Efobi [2021] UKSC 33, [2021] 1 WLR 3863."

 

32.           The appellant, and the First-tier Judge, relied on the decision of the Court of Appeal in Albert Awuku v SSHD [2017] EWCA Civ 178, a case dealing with lex loci celebrationis. The effect of Awuku is that the parties (a German citizen and a Ghanaian citizen), having entered into a proxy marriage in Ghana, were not required to prove that the form of marriage undertaken in Ghana was also valid in German law. They only had to show that the marriage was valid where it was celebrated, by proxy in Ghana. We treat that as settled law and it was not suggested on behalf of the respondent that any examination of German marriage law was relevant in this appeal.

 

33.           More relevant is the guidance of the Upper Tribunal in Cudjoe (Proxy marriages: burden of proof) (rev 1) Ghana [2016] UKUT 180 (IAC) (14 December 2015), in which the judicial headnote says this:

 

" 1. It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an appellant to prove.

2. The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as is recognised in Kareem (Proxy marriages - EU law) [2014] UKUT 24 (IAC) .

3. In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for an appellant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred. "

 

34.           As already stated, point [3] in Cudjoe is not in issue. The respondent accepted that the sponsor was validly divorced from his German former spouse, under German law.

 

Discussion

 

35.           The grounds of appeal are prolix but they identify two areas of challenge:

 

(1)     A rationality challenge to the First-tier Judge's findings of fact and credibility, in particular regarding the reliability of the proxy marriage registration evidence of 26 September 2020 and the weight given to her brothers' affidavits as part of that evidence; and

 

(2)     whether there were procedural defects in the hearing, in particular regarding the accuracy of the First-tier Judge's record of the sponsor's oral evidence.

 

36.           We will consider each head separately.

 

Findings of fact and credibility/reliability of documents.

 

37.           The appellant contends that the First-tier Judge's findings on the proxy marriage registration are wrong, and that such error is relevant and material. She argues that the First-tier Judge erred in the weight given to the witness statements from the appellant's brothers. We have examined those statements, provided at the time of the marriage. They do no more than record the brothers' consent to the proxy marriage, and that the bride price was paid. Applying Volpi, we do not assume that the First-tier Judge overlooked them, but even if he had, these documents would not have assisted in determining the reliability of the proxy marriage registration documents

 

38.           The appellant was well aware of the pivotal importance of the proxy marriage evidence, but took no steps to improve the evidence concerning the reliability of the documents produced. She did not file the additional evidence indicated at [11] in the First-tier Tribunal decision, nor as suggested by Judge Reeds in her grant of permission. There remains no evidence of the reliability of the proxy marriage registration documents, beyond the group of documents all dated 26 September 2020, which included the brothers' witness statements.

 

39.           We remind ourselves of the Tanveer Ahmed reliability test. The appellant has not discharged the burden on her of showing that the proxy marriage evidence can be relied upon. It was unarguably open to the First-tier Judge to consider this group of documents to be unreliable, for the reasons given in the decision. The First-tier Judge's findings are neither plainly wrong nor rationally insupportable: see Volpi. That being so, we have no right or power to reopen them.

 

40.           There is no error of law in relation to the findings of fact and credibility.

 

Procedural irregularity

 

41.           The appellant's case is that that there were internet problems during the CVP virtual hearing, such that a crucial part of his evidence, concerning the hacking of his wife's Facebook account, was not heard by the Judge or recorded in the decision. Despite the indication given in the grant of permission that further evidence was needed to support this assertion, the appellant has neither requested a transcript of the First-tier Tribunal hearing nor provided his solicitor's note of the proceedings.

 

42.           The Home Office Presenting Officer's note indicates that there were some initial technical problems on the representatives' side, which were treated as a preliminary issue, but mentions no problems, or submissions about problems, during the hearing. The First-tier Judge's decision is silent on the point.

 

43.           The grounds of appeal assert that the sponsor's oral evidence was incorrectly recorded at [11(e)] in the First-tier Tribunal decision, due to the alleged internet connectivity disruptions: see [16] above. The appellant asserts that the sponsor's evidence was that both the Facebook accounts of his wife and himself had been hacked, making it impossible to provide evidence of continuing devotion between the couple over Facebook.

 

44.           It is settled law that she who asserts must prove. The appellant has taken no steps to prove that the First-tier Judge's record of the sponsor's evidence is inadequate as asserted. The Presenting Officer's notes do not corroborate her approach. In the absence of any transcript or note of proceedings disclosed by the appellant, we do not consider that she has discharged the burden upon her of showing that there was any procedural failure in the First-tier Tribunal proceedings, still less one which was material to the outcome of the appeal.

 

45.           The appellant has also not provided any evidence to prove that both his Facebook account and that of his wife were hacked such that any posts were irrecoverable at both ends. The Judge was entitled to take account of that lack of evidence.

 

Conclusions

 

46.           Neither contention in the grounds of appeal is properly arguable or capable of amounting to a material error of law.

 

47.           We therefore dismiss the appeal and uphold the decision of the First-tier Tribunal.

 

Notice of Decision

 

48.           For the foregoing reasons, our decision is as follows:

 

The making of the previous decision involved the making of no error on a point of law

We do not set aside the decision but order that it shall stand.

 

Judith Gleeson

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

Dated: 6 February 2025