Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: HU/07965/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

Eugene Johnson
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms N Bustani, instructed by LB & Co Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

Heard at Field House on 19 May 2025

DECISION AND REASONS
1. The appellant is a citizen of Jamaica. Her date of birth is 18 November 1956.
2. The appellant came to the UK on 12 June 2000 having been granted a 6-month visa. She overstayed. She applied for leave to remain (LTR) on 6 October 2003 on the basis of her marriage to a British citizen in 2003. The application was refused by the SSHD in August 2004. She made another application in February 2019 which gave rise to the decision of the SSHD on 17 April 2019 which is the subject of this appeal. The appellant appealed against this decision. Her appeal was dismissed by the FtT (Judge Seelhoff) in a decision which was promulgated on 17 October 2019 following a hearing on 11 October 2019. The appellant was granted permission by the FtT (Judge Keene) on 5 May 2020 to appeal against the decision to dismiss her appeal.
3. We raised the delay in the matter coming before the UT. Ms Bustani explained that she understood that this was a result of administrative error of the Tribunal. The delay is excessive and the reason for that is not clear to us. We also note that the application for permission was out of time. While that does not explain the excessive delay, it is not a matter that the judge granting permission engaged with.
4. Judge Seelhoff heard evidence from the appellant’s spouse and had before him an appellant’s bundle which included the appellant and her husband’s witness statements. The appellant relied on EX 1 (b) of Appenidx FM of the Immigration Rules (IR); namely that there are insurmountable obstacles to family life continuing in Jamaica with her spouse and that the decision breaches her rights under article 8 ECHR. The judge rejected the appellant’s arguments. He found that there were no insurmountable obstacles to family life continuing in Jamaica and that the SSHD’s decision is proportionate taking into account the public interest.
5. We will engage with the grounds of appeal and submissions we heard from Ms Bustani and Ms Isherwood. The grounds of appeal as drafted are two-fold. Ms Bustani reformulated them into four. We will engage with the grounds in turn.
6. Ground one is that the judge erred when assessing insurmountable obstacles to family life continuing in Jamaica. The judge accepted that the appellant’s husband would lose his pension should he leave the UK to join the appellant within two or three years. However, the judge said that he could avoid this by staying in the UK for the required period of time before relocating. The grounds say that family life cannot continue in Jamaica if the sponsor stays in the UK. They cannot be expected to live apart.
7. We find no error of law. At [15] the judge said that he did not accept that there are insurmountable obstacles to family life continuing in Jamaica. At [16] of the decision the judge said that the appellant’s husband would not have to immediately leave the UK if the appeal is dismissed. The judge found that the potential loss of a pension (and the other matters relied on by the appellant to support insurmountable obstacles; namely, the sponsor being separated from his family and him being expected to migrate at an old age) did not amount to insurmountable obstacles to family life. In this context the finding that the sponsor could remain in the UK for two or three years was open to the judge on the evidence.
8. Ground two says that the judge applied the wrong test when assessing insurmountable obstacles to family life. At [16] the judge said in respect of the finding that the appellant’s husband can stay in the UK for two or three years, that this did not represent an insurmountable obstacle to integration in Jamaica whereas the test is insurmountable obstacles to family life.
9. We do not find an error of law. Looking at the decision as a whole, the judge was aware of the test to be applied. He made a clear finding in respect of insurmountable obstacles to family life continuing in Jamaica at [15]. Moreover, considering context, any reference to integration was likely to be a typographical error. The judge’s assessment of insurmountable obstacles is entirely consistent with R (Agyarko) v. Secretary of State for the Home Department [2017] UKSC 11.
10. We characterise ground three as a procedural irregularity or taking into account immaterial matters. The judge said, “ the arguments advanced by Mr Corban can be boiled down to an assertion that the Appellant and her husband are in their 60s and therefore the Immigration Rules should not apply to them”(see [17]). At [19] the judge said, “ I am reluctant to make a decision which effectively amounts to saying that the threshold set in the Immigration Rules is wrong and in the absence of special circumstances that is effectively what I am being asked to do in this case”. Ms Bustani said that the appellant did not rely on a submission that the Immigration Rules should not apply because of the age of the parties before the FtT. The grounds of appeal say in respect of [17] that this is a “perverse construction” of counsel’s submission. It is said that the age of the appellant’s spouse was not advanced as a special consideration. The appellant instead relied on the time the sponsor had lived in the UK and the difficulties that he would experience in forging a new life outside the UK.
11. We do not find that this ground identifies an error of law. Counsel’s submission before the FtT recorded at [13] of the decision is that the appellant’s husband was aged 62 and born in the UK where he has lived all his life and it was unreasonable to expect him to migrate. The judge’s interpretation of the appellants’ case is rational on the basis of the submissions he heard and the evidence before him. Moreover, what he said reflects scant evidence before the FtT. The appellant’s evidence concerned her spouse’s potential loss of pension (see [28] of her witness statement). She said this and his inability to find work were exceptional circumstances. The same is said by the appellant’s partner in his witness statement at [10]. The other matters relied on were the appellant’s partner’s family life with his adult child and grandchildren. There was no evidence before the judge to support what was said by the appellant and the sponsor. There was a witness statement from the appellant’s neighbour which is akin to a character reference. While the appellant’s credibility was not in issue, a proper reading of the decision discloses that the judge found that the evidence was insufficient to discharge the burden of proof. We remind ourselves that an applicant is required to provide an evidential foundation for assertions that there are insurmountable obstacles to their family life continuing outside the United Kingdom: R (Kaur) v Secretary of State for the Home Department [2018] EWCA Civ 1423 (21 June 2018) [2018] Imm AR 1364. In this case there was a dearth of evidence.
12. Ground 4 says that the FtT did not apply the Chikwamba principle (Chikwamba v SSHD UKHL 40). Ms Bustani said that the judge did not apply the case of Hayat (nature of Chikwamba principle) Pakistan 20211 UKUT 000444 which supports that where the only factor weighing on the SSHD’s side of the article 8 proportionality assessment is the public policy of requiring an entry clearance application to be made from abroad, the legitimate objective will usually be outweighed by factors in the appellant’s favour.
13. Since the decision of the FtT and the drafting of the grounds, there have been a number of decisions on the Chikwamba principle. Ms Isherwood relied on the Court of Appeal decision of Butt v Secretary of State for the Home Department [2025] EWCA Civ 189. This case represents a significant further restriction on the application of the Chikwamba principle, following Alam v Secretary of State for the Home Department [2023] EWCA Civ 30. The decision in Chikwamba is only potentially relevant on an appeal when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the United Kingdom in order to make an application for entry clearance. Even in such a case, a full analysis of the article 8 claim is necessary. If there are other factors which tell against the article 8 claim, they must be given weight, and they may make it proportionate to require an applicant to leave the United Kingdom and to apply for entry clearance. If the application is not refused on that procedural ground, a full analysis of all the features of the article 8 claim is always necessary.
14. What the judge was required to do is conduct a full analysis of the article 8 claim. This is what he did. He found factors that told against the appellant. The judge found that there were no insurmountable obstacles to family life in Jamaica which is significant when assessing the wider article 8 exceptional circumstances. The judge was unarguably entitled to attach weight to the period of time that the appellant had overstayed (eighteen years) and to conclude that this was a flagrant breach of the Immigration Rules (see [21]). While we appreciate that the evidence in the appellant’s witness statement catalogued failures by a number of solicitors throughout the years, this does not detract from the lengthy period that the appellant has remained in the UK as an overstayer. The judge was entitled to attach weight to this in favour of the SSHD. The judge’s analysis at [24] is consistent with the approach in Butt.
15. We note that the judge did not mention s.117B of the 2002 Act. However, we take into account what was said by the Upper Tribunal in Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129. When arguing that there is no public interest in removal because after leaving the United Kingdom an appellant will be granted entry clearance they must address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002, including section 117B(1), which stipulates that ‘the maintenance of effective immigration controls is in the public interest’. Reliance on Chikwamba does not obviate the need to do this. Section 117B was not raised in the grounds and, in any event, would not assist the appellant who is an overstayer. The maintenance of effective immigration control is in the public interest and the appellant is relying on a relationship which was established at a time when she was in the UK unlawfully.
16. We reserved our decision at the hearing. In the event that we find an error of law Ms Bustani asked us to preserve the finding that the appellant had lived in the UK continuously for nineteen years at the date of the hearing before the FtT. We do not accept that any concession has been made by the SSHD on this issue. Nor is there a finding by the FtT. It was not an issue because at the time of the application and the appeal the appellant was not relying on para 276 ADE (1) (iii) of the Immigration Rules, as then in force. She had not resided in the UK for twenty years. It was accepted that she had been in the UK for nineteen years, but whether that residence has been continuous has never been a material issue to determine. There is no finding to preserve.
17. There is no error of law. The decision of the FtT is maintained. The appellant’s appeal is dismissed.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025