Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: HU/09091/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 April 2025

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

MOHAMMED AMRANULHOQUE CHOWDHURY
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel instructed by Syed Shaheen Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Heard at Field House on 2 May 2023

DECISION AND REASONS
1. This appeal has an unfortunate and protracted history. It has attracted the attention of the Court of Appeal and Andrews LJ lifted an anonymity order. I see no reason to, and do not, make a further anonymity order.
2. Although I do not make much reference to specific submissions, I have reach this decision after a full consideration of the all the material before me included my notes of the hearing before me.
3. The appeal arises from a decision of the respondent on 7 March 2019 refusing the appellant’s application for indefinite leave to remain made on 29 November 2018. It is necessary at this stage to refer to some of the reasons for refusal but probably not all of them.
4. The appellant’s claim in November 2018 was made on human rights grounds. He asserted he had established family and private life in the United Kingdom.
5. The appellant entered the United Kingdom in February 2009 and this leave was extended by stages until 28 February 2014. On 17 November 2015 he applied for a permanent residence card as the extended family member of an EEA national. The application was refused in July 2016. In September 2018 he applied for leave to remain on the basis of his private and family life because he had accumulated ten years’ residence but on 12 December 2018 the application was described as void because it was an “inappropriate application”. Some explanation is provided by the next entry in the respondent’s Reasons for Refusal which is that on 29 November 2018 the appellant varied his application for leave to remain to an application outside the Rules for indefinite leave to remain. That application was refused it is that refusal that as led to his appeal.
6. The respondent found that the appellant did not satisfy the requirements for leave to remain on the basis of his family life because his family life, such as it was, was with a partner and child who were not British or settled in the United Kingdom. Further, the appellant did not qualify under the “ten year rule” because he had not achieved ten years’ residence of any kind. He had been in the United Kingdom for nine years when he made the application but that, obviously, is less than ten years. The appellant had not lived in the United Kingdom for over twenty years; he was not under the age of 18 years and he was not a person under 25 years of age who had lived half of his life in the United Kingdom. He was born in March 1972 and so was 46 years old. Clearly he had not spent half of his life in the United Kingdom. He was 37 years old when he arrived.
7. The respondent decided that there were no very significant obstacles to his integration into Bangladesh and there were no exceptional circumstances that justified a different outcome.
8. However, it is necessary to read further to understand what this case is about. There is in the bundle at page D3 a Home Office letter setting out the appellant’s immigration history. Important entries for these purposes are as follows:
“On 20 June 2014 the appellant was given further leave to remain as a T4 dependant on his wife until 15 September 2015.
On 15 September 2015 Mrs Kashmiry Islam Chowdhury made an application on private and family life grounds with the appellant as her dependant.
On 17 November 2015 the appellant applied for an EEA (bio) permanent resident card as a non-EEA national extended family member.
On 21 December 2015 ‘HO records show that [the appellant] emailed the Respondent requesting that the application under family and private life be withdrawn’.
On 13 September 2018 the appellant applied for leave to remain on the basis of family/private life.
On 29 November 2018 the appellant varied his leave to remain application to indefinite leave to remain outside the Rules.
On 12 December 2018 the appellant’s application for leave to remain on the basis of private and family life was deemed void.
On 29 November 2018 the appellant applied for indefinite leave to remain outside the Immigration Rules. That application was refused and led to the appeal.
On 24 December 2014 the case was withdrawn as the appellant requested and on 29 November 2018 the appellant varied his leave to remain application”.
9. The appellant appealed and supplied a bundle including a Section 120 notice. The appeal was determined on 17 March 2021 by a Judge of the First-tier Tribunal. Mr Karim was Counsel at the appeal hearing.
10. I now consider the Decision and Reasons that determined that appeal.
11. The judge found that he was dealing with an appeal under Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. At paragraph 3 of the Decision and Reasons the judge said:
“The respondent’s records show that on 21 December 2015 a request was made to withdraw the application made on 15 September 2015 and that this request was actioned on 24 December 2015. It is also common ground that the appellant’s application for an EEA residence card was refused on 10 July 2016. The appellant’s position is that he did not request that the application dated 15 September 2015 to be withdrawn, his position is that the respondent simply never responded to that application. Whether or not the application made on 15 September 2015 was withdrawn was in issue within this appeal.”
12. It is not clear to me what the judge meant by “that application” in the phrase “his position is that the respondent simply never responded to that application”. I find that it must mean that the respondent said that he did not withdraw the application of 15 September 2015 and waited for it to be answered.
13. The judge noted that it was the respondent’s record that the appellant applied for leave to remain on 13 September 2018 and his application was varied on 29 November 2018 and deemed void on 12 December 2018. On 29 November 2018 the appellant applied for indefinite leave to remain outside the Immigration Rules and the application was refused on 20 May 2019.
14. The judge noted that it was the appellant’s case that he had valid leave to remain in the United Kingdom from 21 February 2009 and therefore met the requirements of paragraph 276B of HC 395 because he had ten years’ continuous lawful residence. It was his case that his leave had been extended since he made an application on 15 September 2015 by the operation of Section 3C of the Immigration Act 1971. He also claimed he should be allowed to remain on human rights grounds.
15. The judge noted at paragraph 8 that the Secretary of State did not accept the appellant had ten years’ continuous lawful residence. It was the Secretary of State’s case that the appellant’s 3C leave ended on 24 December 2015 as a consequence of actioning what was said to be the appellant’s request for his application for leave to be withdrawn.
16. The First-tier Tribunal Judge set out the alleged difficulties with the contention that leave was withdrawn, paragraph 25, where the judge said:
“Mr Karim submitted that there were three problems with the respondent’s position; the first is that the appellant’s evidence is that he never received a decision in relation to his application made in January 2014 and that he never withdrew that application. The second problem identified is that the appellant’s wife who was the applicant and not the appellant, as such, the application could only have been withdrawn upon on her instructions. The third problem highlighted was that the CID states that the person who made the telephone call was not the name of the appellant, or his wife. Mr Karim submitted that the evidence demonstrates that the appellant had been within the auspices of Section 3C and both the applications to extend his leave and the immigration history that was provided by the respondent, support his case”.
17. The judge accepted that the appellant never received a decision in relation to his 15 September 2015 application but concluded that that was because no decision was made because the application was withdrawn. The judge rejected the contention that the person who made the telephone call withdrawing the application was neither the appellant nor his wife. The judge said that “the surname is correct”. The CID recorded that the reason for withdrawal was that there was a pending EEA residence permit. The judge found that it was “common ground” that the appellant did apply for an EEA residence permit in 2015 and the judge was satisfied that the application was withdrawn on instructions but the appellant is a national of Bangladesh. He has applied as a dependant of an EEA national. It was his wife who applied as an EEA national.
18. However, the judge was not easily satisfied that the decision to withdraw involved the appellant. The judge found that the application could only have been withdrawn effectively by the person who made and that was the appellant’s wife. The (printed) CID relied upon was difficult to read, but identified the appellant’s wife in a way that was “clear and correct”. However, the first name of the caller had been recorded incorrectly but the judge insisted that the surname was recorded correctly. The CID stated that it was the “applicant who wished to withdraw the application rather than the dependant”.
19. The CID concluded that the appellant’s 3C leave came to an end on 24 December 2015.
20. The judge then considered Article 8 generally.
21. The judge concluded that there were no insurmountable obstacles in the way of the appellant reintegrating into life in Bangladesh. The judge considered private and family life and particularly the interests of the appellant’s child which is subject to other proceedings. The judge concluded that the balance of the competing interests of maintaining effective immigration control and the rights of the child lay in favour of dismissing the appeal.
22. That decision was subject to appeal in the Upper Tribunal and the appeal was again dismissed but there was an application for permission to appeal to the Court of Appeal which was successful.
23. I consider very carefully the order made by Andrews LJ on 8 August 2022. This was an order granting permission to appeal. The learned Lady Lord Justice discharged the anonymity order. The order says at paragraph 4:
“[The appellant’s] application for further leave to remain was entirely dependent upon the application made by his then wife in September 2015 and that would have extended his s.3C leave unless and until the application was finally determined. The fate of his application turned on whether the September 2015 application had in fact been withdrawn by his wife (if it had been it would have been irrelevant whether she told [the appellant] that she had withdrawn it). The evidence relied on by the SSHD was confused. The GCID record suggested it was withdrawn by the wife but misspelled her family name and gave the wrong first name. Other internal records suggest it had been withdrawn by [the appellant] himself because he wished to progress an EEA application (which was indeed made by him and failed), and that the withdrawal was made by email. However, the email was not produced and the FtT Judge referred to a ‘call’ – possibly in response to submissions by [the appellant’s] Counsel that this was the only alternative means by which the application could have been withdrawn”.
24. Permission was granted because it was arguable that the First-tier Tribunal had not grappled with the evidence particularly the inconsistencies in the Secretary of State’s records suggesting that it was the appellant rather than the appellant’s wife that made an application by email.
25. The judge also noted there was a “fresh evidence” point and stated:
“As to the ‘fresh evidence’ and the Ladd v Marshall point, I appreciate that the challenge is to an exercise of judicial discretion. However, when determining whether it was possible to have adduced the wife’s statement prior to the FtT’s determination, it is arguable that the UT failed to take into account the fact that [the appellant] was prohibited from communicating with her because of the family problems and that she also failed to give any or any sufficient weight to the fact that the question whether the wife had been the person who withdrew the application only assumed a central importance on or after the FtT hearing”.
26. However, the same order made it plain that permission was not granted on ground 2 alleging error in the Article 8 assessment. The order made it plain that permission was granted only on limited grounds. This led to the appeal being allowed without argument but with regard to a “Statement of Reasons”. This noted under paragraph 2:
“The central argument in that appeal was whether the application of 15 September 2015 was successfully withdrawn and whether the [Secretary of State] was correct to treat that application as withdrawn on 24 December 2015”.
27. It is, I find, clear that I am meant to focus on that part of the Decision and Reasons.
28. However, before I do that I also address my mind to the final outcome of this appeal. It is fundamental to the appellant’s case that by reason of his not withdrawing the application he had accrued ten years’ continuous lawful residence. The decision of 7 March 2019 referred to his having been in the United Kingdom for nine years but that makes little sense. That might have been the case that when the application was made but on the appellant’s case by 7 March 2019 he had been in the United Kingdom for ten years. It has always been his case that he arrived with permission in February 2009. It was clearly the respondent’s case that he had varied his leave to remain application and that he made an inappropriate application in December 2018 although I have some trouble working out from that refusal what was said about any application being withdrawn. The immigration history notes that the appellant said he entered the United Kingdom in 2009 and certainly that he had leave from May 2011 until February 2014 but it is not clear how he made up his period of ten years’ continuous lawful residence.
29. The grounds of appeal are more illuminating. These assert the appellant came to the United Kingdom in 2009 as a student. Again it is not clear from that how the assertion that he had continuous lawful residence was made out. The appellant produced a skeleton argument for the hearing in the First-tier Tribunal dated 11 June 2020. There it is asserted that the respondent had not set out the appellant’s immigration history accurately. It was simply his case that he had had permission to be in the country until 15 September 2015 and before 20 September 2015 he made an in time application for leave to remain which had never been resolved.
30. Mr Karim’s skeleton argument is particularly helpful under the heading “Issue 2”. There he made plain that it has been the appellant’s case that the immigration history was wrong and the appellant had leave until September 2015. There is a direction from First-tier Tribunal Judge Hembrough that the respondent clarify the immigration history which the respondent did not do.
31. Mr Karim also made the very important point that although the appellant had made an EEA application that is under a different regime. It is I think trite immigration law that an application for leave cannot exist with other applications for leave. If a person wants to change the basis of his application before a decision is given then, broadly, that person can pursue a different application but only one at a time. But the EEA application is different. It is for the recognition of a right, not for the grant of permission and the Rules do not require the withdrawal of an application for leave to make an application for recognition of a right. The importance of this is that the fact of a second application does not in any way determine and hardly illuminates the assertion that the first application was never withdrawn.
32. Perhaps I have missed something but it seems to me that this is an important indicator about at least what might have happened that has not been considered. The immigration history does not anywhere make a clear assertion that leave had lapsed or that the appellant was overstaying. From paragraph 2 of the Decision and Reasons before the First-tier Tribunal it seems that it was agreed that the appellant had leave from 2008 until 2014 although this is not made absolutely clear.
33. Doing the best that I can and given the nature of the application depending on ten years’ continuous lawful residence and in the absence of any clear contrary evidence, I find the appellant did have ten years’ continuous lawful residence by the time the decision complained of was made. That is important.
34. I must now try and do what the Upper Tribunal failed to do the last time it looked at the case. I must look very carefully at the evidence that the application was withdrawn.
35. There is very good evidence that the Home Office thought that it was withdrawn. There is a CID note page D1 in the bundle attributed to the appellant’s wife and is dated 24 December 2015 and says that the “applicant wishes to withdraw this application and vary leave to the EEA application”.
36. The next page refers to “case withdrawn as per request from Munmum Chowdury sent by email”. As far as I am aware I have not given a copy of the email. The appellant was then married to Kasmiry Islam Chowdhury. There is nothing here that indicates that Munmum Chowdury (note that there is no “h” in this spelling of Chowdhury) is Kasmiry Islam Chowdhury.
37. It is wholly consistent with the appellant’s case that the appellant knew nothing about this attempted withdrawal. He says that he did not initiate it and there is no evidence to the contrary. It might have been initiated by his then wife but at that time the appellant and his wife were not on good terms. The appellant may have had a genuine belief that the application was still being processed but that does not of itself show that the application on which he depended had not been withdrawn.
38. Having considered all the material before me I cannot accept that the Secretary of State had any right to say that the application had in fact been withdrawn. There may be other reasons to think that it had been withdrawn. There may somewhere be evidence that explains the named person being thought to be able to speak for the appellant or indeed being the appellant but that evidence was not there. Neither was there any evidence relating to the outcome of any further applications which might have helped determine what applications in fact had been made. Again it is not there. It is perfectly plain that the respondent knew, or ought to have known, before the hearing that the validity of the purported withdrawal was going to be in issue but even if that had not been appreciated the respondent could have asked the First-tier Tribunal to adjourn the hearing for the respondent to consider the evidence and perhaps call further evidence but that did not happen.
39. The respondent’s case on its own records is that the necessary application to sustain the period of 3C leave was withdrawn by a person whose first name is very different from the first name of the person to whom it related and whose second name, which if I may say so respectfully is a very common name, was spelt differently. Far from proving that the application was withdrawn the evidence tends to prove that the information was logged on the wrong file.
40. I cannot accept that the First-tier Tribunal could have reached any other conclusion by looking at this evidence and that is sufficient to say that the First-tier Tribunal erred.
41. I must now decide what to do about it.
42. I have the assistance of an additional witness statement from the appellant’s wife which the applicant seeks to rely upon. I find that I should consider it. I accept that it was not obviously available at the time that the application was first made. Indeed, this statement clearly was not available; it is dated 14 November 2021. But it says on the face of it that the witness and her husband are living separately and had been since April 2019 and that she only “recently came to know that the application in 2015 was withdrawn”. The witness says absolutely unequivocally that she never made any such request to that effect and the email address was not hers. I realise that this statement is of very modest evidential value. It has not been given on oath and the witness has not been available for cross-examination. I must give it some weight but I see no reason to give it very much.
43. However, when I evaluate the evidence what I have there is now a clear assertion by the appellant that he did not withdraw the application and rather weak but clear evidence apparently from his wife that she did not withdraw it. The respondent’s own case is that it was withdrawn by somebody who as far as I can make out was a stranger to the proceedings.
44. Before me Mr Melvin applied to adduce further evidence but could not show that any further evidence he wanted to rely on ought to be admitted on Ladd and Marshall principles.
45. It is not the intention of appeal proceedings to give the Home Office another chance of proving something they knew they had to prove first time and wholly failed to do. I have given rather anxious care to this point. Cases should ordinarily be decided on the best evidence available but finality in litigation and clarity in proceedings is also important. I do not know any sound principle which provides for the admission of evidence or indeed precisely what the Home Office wanted to rely on.
46. I see no need for a nuanced article 8 balancing exercise. The appellant satisfied the rules and there is nothing here to suggest that this is one of the rare, possibly entirely hypothetical, case where the appeal of a person who satisfied the rules should be dismissed on human rights grounds.
47. On the evidence I have got I find that the First-tier Tribunal erred in law and I set aside its decision. I also find that on the evidence before it, it should have allowed the appeal and I do.
Notice of Decision
The First-tier Tribunal erred I law. I set aside its decision and substitute a decision allowing the appellant’s appeal.

Jonathan Perkins

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 April 2025