JR 2024-LON-002694
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The decision
Case No: JR-2024-LON-002694
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
5 February 2026
Before:
UPPER TRIBUNAL JUDGE MAHMOOD
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Between:
THE KING
on the application of
MUHAMMAD ARSALAN PASHA
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr Greg Ó Ceallaigh of King’s Counsel and Mr Taimour Lay of Counsel
(instructed by Bindmans LLP Solicitors), for the Applicant
Mr Alan Payne of King’s Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing dates: 6 and 7 November 2025
Further Written Submissions thereafter
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J U D G M E N T
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Judge Mahmood:
1. The Applicant, a national of Pakistan born in 1988, seeks Judicial Review against the Respondent’s decision as to whether the Secretary of State has lawfully certified the Applicant’s human rights claim pursuant to section 94 of the Nationality, Immigration and Asylum Act 2002 (“s94”). The Applicant also seeks an order that the Respondent’s relevant policy guidance be declared unlawful.
Introduction and Outline of the Matters Before Me
2. This matter comes before me pursuant to permission to apply for Judicial Review having been granted in respect of Ground 1 and an order directing that there be a “rolled up” hearing in respect of Ground 2.
3. I have heard very detailed arguments from the parties. There have been considerable documents provided to me including a core bundle comprising 140 pages, a more substantial bundle comprising 582 pages, detailed skeleton arguments from both parties and a substantial number of authorities comprising some 1500 pages. I was also assisted by written submissions after the hearing.
4. Mr Ó Ceallaigh KC and Mr Lay say in their skeleton argument that the issues to be dealt with are as follows:
“Issue 1: Is the Applicant’s human rights claim one that could lawfully be certified?
Issue 2: Did the Respondent fail to consider the exercise of discretion in a lawful manner?”
5. The Applicant’s skeleton argument also states in its conclusion that:
“The Applicant asks that permission to apply for judicial review in respect of Ground 2 be granted, and that his application for judicial review be granted on both Grounds. The Applicant asks that the certificate be quashed. He asks that the caseworker/policy guidance dated 8 November 2023 be declared unlawful.”
6. Mr Payne KC and Mr Thomann KC say in their skeleton argument that:
“…[the Applicant] does not meet the requirements of the Immigration Rules and is unable to point to any arguable ties with or retained to the UK capable of engaging Article 8. In reality, the Application is an attempt to circumvent the FTT decision and/or to secure second right of appeal. Article 8 does not provide a person located abroad a right to a second right of appeal – in particular in circumstances where there is no challenge to the lawfulness of the decision in the first appeal.”
7. I am grateful to all counsel for their very helpful and clear oral and written submissions which were of a high quality.
Background and Procedural History
8. I have found the Respondent’s agreed tabular chronology of assistance and I refer to it for the background to this matter, but which I have amended for relevance and I have omitted certain names. I was informed that this was also the agreed document used at the Court of Appeal proceedings in this case:
Date
Event
02 September 2010
Applicant enters the UK as a Tier 4 Student with leave valid until 24 June 2012. His Sponsor College licence is suspended within six months of commencement, and Applicant transfers to the London College of Computing and Management Sciences.
5 September 2011
Applicant awarded a Level 7 Diploma in Business Administration by the London College of Computing and Management Sciences
18 May 2012
Reading and listening components of the Test of English for International Communication (“TOEIC”), administered by the Educational Testing Service (“ETS”), are sat in Applicant’s name at the Premier Language Training Centre. Applicant passes both components.
23 May 2012
Speaking and writing components of TOEIC are sat in Applicant’s name at the Premier Language Training Centre. Scores attained meet the CEFR score requirements for the writing component but are below the pass mark for speaking component, with a speaking score of 130.
18 June 2012
Circa three weeks later a second TOEIC speaking test is sat in Applicant’s name. The certificate submitted shows an increase in the speaking score to 170.
22 June 2012
Applicant submits application for leave to remain as a Tier 4 Student, reliant upon a writing score certificate for 23 May 2012 and a speaking score certificate for 18 June 2012.
18 October 2012
Applicant is awarded a Master of Business Administration (MBA) degree.
17 April 2013
Applicant’s Tier 4 application was refused with a right of appeal on the basis that his diploma was not considered genuine.
02 May 2013
Applicant lodged an appeal against the decision dated 17 April 2013.
13 February 2014
First-tier Tribunal (“FTT”) hearing of the appeal. The Secretary of State concedes that the Applicant’s Diploma was genuine and that his TOEIC test certificate had been provided as required. Appeal allowed. The Home Office agrees to reconsideration of the Tier 4 application dated 22 June 2012.
25 June 2014
The Applicant’s speaking and writing test of from the 23 May 2012 certificate is identified as “questionable” by ETS. Test certificate submitted by the Applicant for 19 June 2012 identified as “invalid” by ETS by reason of the alleged detection of a test-taker's voice which appears on multiple files.
11 November 2014
The SSHD decides to refuse the application dated 22 June 2014.
01 April 2015
Representative on record for Applicant is served with Form IS151A. The SSHD serves a Section 10 Removal decision to Applicant’s representatives. The Applicant’s leave is cancelled on the basis of the allegation of ETS deception. The decision attracts an out of country right of appeal.
13 April 2015
The Applicant filed Judicial Review proceedings (JR/4124/2015) against the s10 decision.
26 January 2016
Permission to proceed with the Judicial Review is refused on papers and
certified as totally without merit on the basis of case law as it stood at the time.
16 September 2016
Presidential Panel of the Upper Tribunal promulgates the determination in MA (ETS - TOEIC testing) [2016] UKUT 450(IAC). Voice recordings for MA, and other appellants, are made available by Jones Day, solicitors for ETS.
11 October 2016
The Applicant was served with a RED0001 notice of removal window upon reporting.
08 November 2016
The SSHD served an IS96 requiring the Applicant to report every 4 weeks. This is sent to the Applicant’s address on record but returned as undelivered.
06 December 2016
SSHD states that Applicant did not report as required.
19 December 2016
The Applicant does not attend an Emergency Travel Document interview.
10 January 2017
The SSHD makes contact with the Applicant. The Applicant states that he was sick.
27 January 2017
Judgment in R (Abbas) v SSHD [2017] EWHC 78 (Admin) handed down.
17 February 2017
The Applicant is registered an “absconder” from this date as the SSHD failed to establish contact again.
2 June 2017
Permission to appeal is refused by the Court of Appeal (Sir Stephen Silber) on the basis, amongst other things that the Applicant’s enjoyment of a suitable alternative remedy by way of an out of country appeal, on the basis of the caselaw as it stood at the time.
14 June 2017
Judgment handed down by the Supreme Court in R (Kiarie and Byndloss) v SSHD [2017] UKSC 42.
19-21 September 2017
Court of Appeal heard the appeal in R (Ahsan & ors) v SSHD [2017] EWCA Civ 2009.
02 December 2017
The Applicant left the UK for a family emergency.
5 December 2017
Judgment handed down by the Court of Appeal in R(Ahsan) v Secretary of State for the Home Department [2017] EWCA Civ 2009.
17 March 2019-1 April 2019
The Applicant travelled to Saudi Arabia, returning to Pakistan.
December 2019
The Applicant travelled to the UAE/ Dubai.
December 2020
The Applicant makes contact with his present solicitors, Bindmans LLP.
08 April 2021
The Applicant lodged a Pre Action Protocol letter referring to a “proposed application” to re-open a claim for judicial review dismissed by the Court of Appeal on 9 June 2017, in order to challenge the Section 10 Removal decision served on 1 April 2015.
21 May 2021
SSHD sends PAP response maintaining the March 2015 decision.
15 December 2021
The Applicant lodged an out-of-time appeal in the First Tier Tribunal to the section 10 removal decision (HU/58090/2021).
19 April 2022
Decision of FTT Judge Swaney refusing to admit the Applicant’s out-of-time appeal.
27 September 2022
The Applicant submits an Entry Clearance application for leave outside the rules on the visitor application form, supported by submissions from his legal representatives and other supporting evidence submitted on 10 October 2022.
15 November 2022
Entry clearance application is refused by Entry Clearance Officer. A Refusal Notice is sent to the Applicant by email on 21 November 2022.
05 December 2022
The Applicant submits PAP letter challenging the refusal dated 15 November 2022.
17 January 2023
Further refusal decision of application to enter the UK.
18 March 2023
The Applicant’s representatives send further pre-action letter challenging the refusal of 17 January 2023.
17 April 2023
Judicial Review claim filed challenging the refusal of entry clearance dated 17 January 2023.
6 June 2023
Upper Tribunal Judge Macleman refuses permission to apply for Judicial Review on the papers.
14 September 2023
Permission to apply for Judicial Review granted by Upper Tribunal Judge Norton-Taylor following an oral renewal hearing.
16 November 2023
The Applicant’s representative make a request to ETS’s solicitor for the audio files retained by it for the Applicant’s test.
22 November 2023
ETS provide audio files for tests 004420154013015 23 May 2012) and 0044201625030008 (19 June 2012).
27 November 2023
The Applicant files his third witness statement. He accepts there at paragraph 23, that the audio files retained by ETS for these tests do not contain his voice.
26 February 2024
Substantive Hearing of Judicial Review Application.
31 May 2024
Applicant’s Application for Judicial Review is granted by UT Judge Blundell. The Respondent is refused permission to appeal to the Court of Appeal.
28 June 2024
SSHD lodges application for permission to appeal to the Court of Appeal, together with an application for the Stay of Execution of paragraph 3 of the Order of UTJ Blundell dated 31 May 2024 requiring the SSHD to consider the Article 8 ECHR claim made by the Applicant on 27 September 2022.
11 July 2024
The SSHD’s Application for a stay of execution is refused by the Rt. Hon.
Lord Justice Popplewell.
12 July 2024
The SSHD reconsiders the Applicant’s human rights claim as made in his entry clearance application of 10 October 2022, refusing and certifying the claim as “clearly unfounded”.
2 October 2024
The Applicant brings Judicial Review challenge to the SSHD’s decision of 12 July 2024 to certify his human rights claim as “clearly unfounded” (JR 2024-LON-002694).
12 December 2024
Permission to appeal to the Court of Appeal was granted to the SSHD by the Rt. Hon. Lord Justice Nugee.
24 December 2024
The Applicant files a Respondent’s Notice at the Court of Appeal
17 January 2025
Upper Tribunal Judge Stephen Smith grants the Applicant permission to apply for judicial review of the decision of 12 July 2024 on ground 1 of the Applicant’s Judicial Review challenge, (which ground related to the certification of the Applicant’s human rights claim as “clearly unfounded”), on the basis that it is arguably not “clearly unfounded” (JR 2024-LON-002694).
25 March 2025
The Upper Tribunal stays MP’s Judicial Review action pending the outcome of the appeal at the Court of Appeal.
2 July 2025
The SSHD’s appeal was disposed of by consent: the appeal hearing listed at the Court of Appeal on 16 and 17 July 2025 was vacated.
23 September 2025
Parties file, and Upper Tribunal Judge Mahmood approves, a consent order agreeing that the stay in the present case be lifted and setting case management directions for a substantive rolled-up hearing.
The Applicant’s Circumstances
9. The Applicant’s skeleton argument sets out in clear and stark terms the effect that the Respondent’s decisions have had on him. I have these matters at the firmly in mind. The Applicant’s skeleton argument states,
“The Applicant was a highly successful student, awarded an MBA, and was living lawfully here for many years before he was, on his case, falsely accused by the Respondent of cheating in a TOEIC English language test. The Respondent, as established in R(Ahsan) v Secretary of State for the Home Department [2018] Imm AR 531, unlawfully denied him an effective remedy. While the Applicant was seeking to challenge that failure, his father fell ill and he had to return urgently to Pakistan.
The consequences for the Applicant of the false allegation, which he has never had the opportunity to contest in a fair hearing, have been dire. He was ostracized by his family who blame him for his father’s ill-health and untimely death; he became homeless and destitute. He became and remains mentally ill. His student life in the United Kingdom was brought to a sudden, disastrous end.
The Applicant applied for entry clearance in order to have the opportunity to clear his name and resume his private life in the United Kingdom.”
10. I also take into account the Applicant’s witness statements. A summary of one of those witness statements is referred to within the Applicant’s amended grounds which explains:
“a. The enormous impact that the Secretary of State’s false allegation had on his studies;
b. His emphatic denial of the Secretary of State’s allegation;
c. His circumstances in Pakistan, and in particular the continuing impact on him of the allegation;
d. His desire and his attempts to clear his name.”
11. The Applicant’s grounds refer to the previous successful Judicial Review brought by this Applicant:
“After several years of unsuccessfully seeking the opportunity to clear his name, the Applicant made an application for entry clearance in 2022. The Respondent refused to recognise that the application constituted a human rights claim, which the Applicant successfully challenged by way of judicial review, leading to a substantive judgment of Upper Tribunal Judge Blundell promulgated on 31 May 2024.
…
6. The relief granted included an Order that
“the Respondent shall within six weeks (absent special circumstances) consider the Article 8 ECHR claim made by the Applicant on 27 September 2022”. The Respondent duly issued a decision on 12 July 2024.”
The Respondent’s Decisions
12. The ‘main’ decision, the subject of these proceedings, is the Respondent’s decision of 12 July 2024. There is also a supplementary decision dated 7 March 2025.
13. The 12 July 2024 decision states in part:
“You have stated that you intend to travel to the UK for a period of 1 month and 1 day and I have noted from the correspondence from Bindmans LLP this is for the purposes of accessing an in-country appeal to determine the question of whether you cheated on the TOEIC test. The suggestion that you intend to remain in the UK for 1 month and 1 day is inconsistent with the assertion made in the letter from Bindmans LPP that “our client will not be required to leave the UK until that claim has been properly determined.
…
“For the purposes of considering certification, I have treated your representations as constituting a human rights claim. As set out above it is not considered there is any reason as to why you would be entitled to an in-country right of appeal if you returned to the UK. Alternately if I am wrong on this and you could engineer an in-country right of appeal, given you had an out of country right of appeal which you did not exercise in time and considering your litigation history there is no arguable breach to your human rights in refusing you entry to the UK. Given this it is considered that your claim would not succeed on any legitimate view and any immigration judge, properly directing him or herself and applying the law to the facts and the same evidence, would inevitably conclude the same. Therefore, your claim that preventing you from visiting the UK would be unlawful under Section 6 of the Human Rights Act 1998 is certified under section 94(1) of the Nationality, Immigration and Asylum Act 2002.”
14. The Respondent’s decision dated 7 March 2025 states in part:
“As regards the certification decision in your case dated 12/07/2024, the legislation provides a discretionary power to certify a claim that is clearly unfounded. It is not accepted that where a decision maker had concluded that a claim was clearly unfounded – that it would not succeed on any legitimate view and any immigration judge, properly directing him or herself and applying the law to the facts and the same evidence, would inevitably conclude the same - that some separate exercise of discretion to allow an unmeritorious appeal to proceed must be conducted .
However, for the avoidance of doubt I have reviewed the certification decision of 12/07/2024 and considered whether even though your claim is clearly unfounded I should exercise discretion and not certify and I have concluded that it would not make logical sense to do so. Whilst the wording in section 94 is permissive in that it states that the Secretary of State may certify a protection claim or human rights claim as clearly unfounded, the published Certification of protection and human rights claims under section 94 of the Nationality, immigration and Asylum Act 2002 (clearly unfounded claims) policy guidance explains the scenarios in which a protection claim or human rights claim would normally not be certified as clearly unfounded...
As your claim was solely one related to your rights under Article 8 of the ECHR, I am not satisfied that it would be appropriate to not certify your claim based on the published policy guidance referred to above. For the reasons explained in the decision letter dated 12 July 2024 refusing your application for entry clearance, your Article 8 claim was clearly unfounded, and therefore certification was appropriate in line with the current policy.
Consideration has also been given as to whether it would be appropriate exceptionally not to certify your human rights claim in spite of the published guidance, however I am not satisfied that it would be appropriate to do this in your case. In considering this, I am mindful that you previously enjoyed and exercised an out of country appeal, failed to persuade the First Tier Tribunal (FTT) that you had reasonable grounds for the delay in bringing that, and you did not appeal the FTT’s conclusion.
As a result of all the above, I am satisfied that the decision to certify your claim was and continues to be appropriate.”
15. Upper Tribunal Judge Blundell’s judgment dated 31 May 2024 in respect of the Applicant’s previous successful Judicial Review helpfully provides the background to how this matter had led to the Respondent’s new decisions dated 12 July 2024 and 7 March 2025. Those being the decisions now under challenge before me. The learned judge said:
“84. I agree with Mr Ó Ceallaigh that I should not proceed any further. It suffices for me to conclude that the applicant made a human rights claim which should have been considered by the respondent. The respondent failed to consider that claim because he misunderstood the effect of SSHD v Abbas and because he strayed impermissibly into the consideration of the merits.
85. Whether that claim suffices to engage Article 8, or whether the refusal of that claim would be disproportionate, are matters which fall to the Entry Clearance Officer to decide, and a negative conclusion in either respect would (subject to my final observation below) attract a right of appeal to the First-tier Tribunal, which is the proper alternative remedy prescribed by statute.
86. A number of the submissions made before me belong in the analysis of the merits, and not in the consideration of whether the claim made was a human rights claim. In assessing the claim, the ECO will wish to consider, for example, the significance of the fact that the applicant was not settled, the significance of his ‘voluntary’ departure from the UK, and the significance of the fact that he was outside the UK for many years. But those matters are not relevant to the question of whether a human rights claim was made.”
The Applicant’s Grounds of Challenge
16. Ground 1 contends that the certification of the Applicant’s human rights claim as “clearly unfounded” under section 94 of the Nationality Immigration and Asylum Act 2002 is unlawful because:
(i) The application was not “clearly unfounded”;
(ii) The Respondent has failed to take the case at its reasonable height; and
(iii) The Respondent has not given the Applicant’s case “anxious scrutiny”.
17. The Applicant was granted permission to apply for Judicial Review in respect of Ground 1 only by Upper Tribunal Judge Stephen Smith.
18. Permission was not granted in respect of Ground 2. That ground contends that in failing to lawfully exercise her discretion not to certify the Applicant’s claim as “clearly unfounded” the Respondent acted unlawfully. Even though permission has not been granted, the parties have agreed that I should consider permission in respect of Ground 2 as a “rolled up” hearing.
Decision of the First-tier Tribunal dated 19 April 2022
19. The decision of First-tier Tribunal Swaney dated 19 April 2022 is relevant and of some importance. I refer to much of it at that outset for that reason:
“16. The appellant had a right of appeal against the decision dated 21 March 2015 which was exercisable only after he had left the United Kingdom. In these circumstances rule 19 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum) Rules 2014 (the Procedure Rules) provides that the time limit for lodging an appeal is not later than 28 days after the person’s departure from the United Kingdom. The appellant’s appeal was therefore due to be lodged no later than 30 December 2017. The appeal was lodged on 15 December 2021.
17. The appellant requested an oral hearing of the application to extend time, submitting that the issues were complex. I considered the request but determined that in light of the documentary evidence and submissions before me, it was not necessary.
18. Pursuant to the guidance given in R (Onowu) v First-tier Tribunal (Immigration & Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 000185 (IAC), I must follow a three stage approach in considering whether to extend the time for appealing. In addition to the guidance in Onowu, I have also had regard to the guidance in SSHD v SS (Congo) & Ors [2015] EWCA Civ 387.
The three stage process outlined in Onowu can be summarised as follows:
(i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the Rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that the breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides the breach is serious or significant, then the second and third stages assume greater importance.
(ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. If there is a good reason for the default, the tribunal is likely to decide relief should be granted. If there is a serious or significant breach and no good reason for the breach, the application for relief does not automatically fail. It is necessary in every case to move to the third stage.
(iii) The third stage is to evaluate all the circumstances of the case, so as to enable the tribunal to deal justly with the application. Two factors are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with the tribunal's rules, practice directions and orders.
Is the delay significant?
19. The deadline for appealing was 30 December 2017. The appellant did not lodge his appeal until 15 December 2021. It was therefore very nearly four years out of time. I find that the delay in this case is significant.
What were the reasons for the delay?
20. These are set out in the application to extend the time for appealing and can be summarised as follows:
(i) He was not aware of the time limit for lodging his appeal because neither the IS.151A nor the IS.151A Part 2 refers to a time limit and he had not had legal advice. A copy of the notice of appeal was not served with the decision contrary to the Immigration (Notices) Regulations 2003.
(ii) For the first few weeks after his return to Pakistan the appellant was preoccupied with caring for his father who was in hospital and critically ill. He then continued to care for his father until he passed away on 16 February 2018.
(iii) The appellant became aware of the deadline for appealing in January 2018 by which time it had already passed; he was unable to pay for legal advice and so did not know he could lodge an appeal out of time; and he was not advised about the possibility of obtaining legal aid.
(iv) The appellant’s mental health is fragile and it deteriorated after his father’s death resulting in a suicide attempt. He continues to take medication for anxiety and depression.
(v) The appellant has limited funds and limited access to means of communication, making it difficult for him to seek advice.
(vi) In early 2021 the appellant sought advice from his current representatives about his position. He initially sought to obtain the respondent’s agreement to reopen his judicial review proceedings, or alternatively to reconsider her position and grant him an in-country right of appeal. Following the respondent’s refusal to agree to either of those requests, it was decided that an out of time appeal was the best route.
(vii) An application for legal aid was made in October 2021 and granted on 12 November 2021.
(viii) Since the appellant departed voluntarily from the United Kingdom, there have been significant developments in cases involving allegations of cheating in English language exams, including in particular, that an out of country appeal is unlikely to provide an adequate remedy. He would be likely to succeed in his claim for judicial review if it were lodged now.
(ix) Had he not left the United Kingdom voluntarily; he would have benefited from the respondent’s agreement to reconsider the human rights claims of those accused of cheating and to afford them an in-country right of appeal.
21. The appellant provided a witness statement in support of his application for an extension of time. He has provided an explanation for the delay and I must therefore consider whether or not that amounts to a good reason such that relief should be granted.
22. The appellant states that he was not aware of the deadline for appealing because he was not provided with an appeal form or any information about the appeal deadline. I directed the respondent to provide copies of all documents served on the appellant and the response did not include a copy of the appeal form or accompanying notes. I am satisfied that the immigration decision was not served in accordance with regulation 5(4) of the Immigration (Notices) Regulations 2003. I am satisfied that at the time the appellant was served with the immigration decision, he was not aware of the deadline for appealing.
23. I am not satisfied on the balance of probabilities that the appellant did not have the opportunity of obtaining legal advice or that he was not aware of the deadline for appealing until January 2018 (paragraph 17, application for extension of time). This is because the appellant was legally represented at the time the notice was served. This is clear from the correspondence before me which indicates that the notice was reserved on the appellant’s representative who had gone on record in February 2015.
24. It is also clear from the fact that solicitors acting on behalf of the appellant lodged an application for judicial review challenging the decision he now seeks to appeal on 13 April 2015. This was less than 14 days after the decision was re-served. The immigration decision clearly states that the appellant has a right of appeal against the decision under section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). It also clearly states that the right of appeal can only be exercised once he has left the United Kingdom.
25. The grounds for judicial review and amended grounds for judicial review refer to the out of country right of appeal – the basis of the challenge was that such an appeal was not an adequate remedy. The grounds of appeal also raise the issue of the making and service of a decision to remove the appellant and when the right of appeal is engaged.
26. I do not consider it is credible that a solicitor advising the appellant in relation to an application for judicial review which centres around a right of appeal and from where it can be exercised would not advise him in relation to the appeal procedure. This is relevant to the merits of the application for judicial review.
27. The fact that permission to proceed with the claim for judicial review was refused before the appellant left the United Kingdom and while he was legally represented is in my view relevant. The refusal of permission, particularly given that the claim was certified as totally without merit, would have necessitated advice on not only the merits of applying for permission to appeal to the Court of Appeal, but also the appellant’s options regarding exercising his statutory right of appeal. The appellant’s application for permission was refused on 26 January 2016 and he did not leave the United Kingdom until the beginning of December 2017, nearly two years later.
28. Notwithstanding that an appeal form and accompanying notes were not served with the decision, the time limit for appealing is set out in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum) Rules 2014 (the Procedure Rules). The Procedure Rules govern appeals to this tribunal and it is inconceivable that an immigration solicitor would not be aware of their existence or more specifically, the existence of rule 19.
29. I am satisfied that the appellant was aware that he had an out of country right of appeal before he left the United Kingdom. Even though he was not provided with an appeal form or accompanying notes, the appellant had legal representation prior to leaving the United Kingdom and had the opportunity to seek advice about how he could exercise that right of appeal. Moreover, the available grounds of appeal are set out in the notice of immigration decision and even if the appellant could not make submissions in support of the grounds, that is immaterial. All the appellant needed to do was indicate which of the grounds he relied on pursuant to rule 19(4).
30. Even if the appellant was only aware of the deadline to appeal in January 2018 when according to his witness statement he was able to contact a solicitor in the United Kingdom via Facebook, it does not explain why he could not have lodged an appeal any sooner. The solicitor appears to have engaged with the appellant, advising that Ahsan had been decided and what that meant. Even if the appellant could not afford the solicitor’s fees for assistance in lodging the appeal, it is entirely unexplained as to why the appellant did not ask for information about how he could lodge an appeal himself. It would have been a simple matter for the solicitor to have referred the appellant with a link to the Immigration & Asylum Chamber website where appeal forms and relevant information can be accessed.
31. I do not accept that the inability to obtain or pay for legal advice/assistance to lodge an appeal is of itself a basis on which time should be extended. Unrepresented appellants can and do lodge appeals to this tribunal on a regular basis, including from abroad. Moreover, the appellant could have explained his financial circumstances and asked for remission of the appeal fee.
32. The appellant left the United Kingdom the day after being informed that his father was seriously unwell. I accept that he had little time to make any arrangements with a legal representative before leaving and I accept that this must have been distressing and difficult for the appellant.
33. While I accept that the appellant may have suffered from a deterioration of his mental health following his father’s death and being ostracised by his family, there is no medical evidence to indicate the effect of these conditions on his ability to function. On his own evidence the period during which he was particularly unwell lasted a few weeks (paragraphs 32 and 33, witness statement) before he was able to access treatment and some support through his mosque.
34. Although the appellant’s evidence about difficulty accessing the internet and the cost of making calls to the United Kingdom is credible, it is his own evidence that he has nevertheless been able to access the internet and make contact with different solicitors and at least one advice agency since January 2018. The appellant is educated and familiar with immigration procedures in the United Kingdom. He has failed to provide any explanation as to why he did not take any steps to try and find out how to appeal himself. A simple search such as ‘immigration appeal UK’ in Google for example results in a link to the IAC website which provides information on how to appeal, including for people appealing without a legal representative.
35. It is also unexplained as to why the appellant’s current representatives did not advise him that lodging an appeal as soon as practicable would have been appropriate to protect his position as far as possible, even if they considered attempting to re-open his judicial review or seeking the respondent’s agreement to an in-country right of appeal might have resulted in preferable outcomes. They could have provided the appellant with the relevant information on how to lodge the appeal himself if they were not prepared to do it on his behalf. There was nothing preventing the appellant from pursuing both options at the same time – he could have asked for the tribunal to stay the appeal pending a response from the respondent.
36. For all of these reasons I am not satisfied that the appellant has provided good reason for the significant delay in lodging his appeal.
Evaluation of all the circumstances
37. Notwithstanding my conclusion above, I have nevertheless gone on to consider all of the relevant circumstances. In conducting an overall evaluation of the circumstances, I have had regard to each of the factors identified above both individually and in combination.
Factors against extending time 38. I attach significant weight to the length of the delay and the fact that I have not found the appellant has demonstrated good reason for it.
39. I have had regard to the following two factors, giving more weight to the second of them: (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with the tribunal’s rules, practice directions and orders. Factors in favour of extending time
40. I place some weight on the fact that the notice of immigration decision was not served with an appeal form and accompanying notes which would have given him information about how and when to lodge an appeal. I find that this weight is reduced because the appellant has at various points since then, including while he remained in the United Kingdom, had an opportunity to seek legal advice.
41. I have given some weight to the appellant’s circumstances since his father passed away including his mental health. I give no weight to the appellant’s inability to pay for legal assistance to lodge the appeal.
42. The fact that the caselaw developed after the appellant’s claim for judicial review was decided and that following the judgment in Ahsan, he may well have been able to seek a new decision on a human rights claim and with an in-country right of appeal had he remained in the United Kingdom is something to which I can attach little weight. The appellant obviously had a very compassionate reason for returning to Pakistan but he nevertheless exercised a choice in doing so and at the time, had no basis of stay in the United Kingdom.
43. The merits of an appeal according to the guidance in SS (Congo) have little to do with whether it is appropriate to extend time. The appellant maintains that he did not cheat on his English language test, but aside from his own assertion, there is no basis on which I can say that the merits of his appeal are either very strong or very weak such that I could give this any weight in my assessment.
44. Having considered all of the relevant circumstances, I find that they do not, either singly or in combination, make an extension of time necessary in the interests of justice.”
The Applicable Legal Principles.
20. The applicable legal principles include the following.
21. Article 1 ECHR states that the High Contracting Parties:
“shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
22. The Strasbourg Court’s guide to Article 1, states that it is for an Applicant bringing a challenge under the Convention to establish the factual matters relied upon.
23. Section 82 of Nationality Immigration and Asylum 2002 Act (“NIAA”) provides that a right of appeal to the First-tier Tribunal is accorded as follows:
“A person (“P”) may appeal to the Tribunal where
…
(b) the Secretary of State has decided to refuse a human rights claim made by P”
24. Section NIAA 84(b) provides:
“(2) an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.”
25. Section 94 NIAA 2002 provides:
“94 Certification of human rights or protection claims as unfounded or removal to safe country
(1) The Secretary of State may certify a protection claim or human rights claim as clearly unfounded."
(3) If the Secretary of State is satisfied that [a] claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded.
(3A) A person may not bring an appeal under section 82 against a decision if the claim to which the decision relates has been certified under subsection (1).”
A human rights claim is defined in s113 of the 2002 Act as follows:
““human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom [or to refuse him entry into the United Kingdom] would be unlawful under section 6 of the Human Rights Act 1998 ,
26. In R (FR (Albania) and another) v Secretary of State for the Home Department [2016] EWCA Civ 605; [2016] Imm AR 6 Beatson LJ explained in respect of s94 at paragraphs 47 and 62 that:
(i) the jurisdiction remains a supervisory and reviewing one;
(ii) the provisions in the 2002 Act give the Secretary of State a certain “gatekeeping” or “screening” function; and
(iii) while recognising the intensity of review in this context, care must be taken not to inappropriately to deprive the Secretary of State of that function.
27. The Secretary of State’s guidance on the “Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002” states in part:
“When not to certify a clearly unfounded claim: exceptions
This section sets out the exceptions to the policy that where a claim is clearly unfounded it must be certified under section 94 of the Nationality, Immigration and Asylum Act 2002.
Claims that are clearly unfounded should not be certified under section 94:
• if an individual makes both a protection and human rights claim and only one of these claims is clearly unfounded
• except cases where the protection claim is certifiable and the human rights claim can be certified under section 94B see: certification under Section 94B of the Nationality Immigration and Asylum Act 2002
• where extradition is an issue and the process is at the beginning, certification is unlikely to be appropriate
• for more information on extradition see: guidance on extradition processes”
28. Article 8 of the European Convention on Human Rights states:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
29. Engagement of Article 8 depends upon an affirmative answer to 2 questions stated by Lord Bingham in R (Razgar) v SSHD [2004] UKHL 27; [2004] 2 AC 368 at paragraph 17):
(i) whether there had been or would be an interference by a public authority with the exercise of a person's right to respect for his private or family life and, if so,
(ii) whether it had had, or would have, consequences of such gravity as potentially to engage the operation of the article.
30. The Respondent has referred to the territorial scope of the private life aspect of Article 8 which was summarised by Burnett LJ, as he then was, in Secretary of State for the Home Department SHD v Abbas [2017] EWCA Civ 1393; [2018] 1 WLR 533 at paragraph 18:
“The Secretary of State has been unable to identify any case, still less settled line of authority, in which the Strasbourg Court has held article 8 in its private life aspect to be engaged in respect of a person outside the Contracting State seeking to enter to develop that private life. Such a conclusion would have a striking effect and undermine the often-repeated starting point of the Strasbourg Court that a state has the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. “
31. His Lordship then said at §27:
“There is no obligation on an ECHR state to allow an alien to enter its territory to pursue a private life.”
32. A case to which I return and which has featured heavily in the written and oral submissions is R(Ali) v Upper Tribunal (Immigration and Asylum Chamber) and another [2024] EWCA Civ 372; [2024] 1 WLR 5097. There the Court of Appeal considered the necessary foundation for Article 8 private life engagement: a jurisdictional “peg” within the UK.
33. The task of the domestic courts and tribunals remains one of applying established European Court of Human Rights (ECtHR”) principles to the facts of particular cases, without however going beyond existing ECtHR jurisprudence unless they can be “fully confident” that the ECtHR would do so: R (AB) v Secretary of State for Justice [2022] AC 487 at paragraph 5.
34. The Applicant referred me to the Respondent’s Guidance of 20 June 2025 and which therefore came into existence after the Respondent’s decisions. It is called the “Educational Testing Service: Caseworking Instructions, Version 5.0, dated 20 June 2025”. It states in so far as relevant:
“…if there is a finding that the applicant did not cheat in the ETS test, and all other requirements are met, the applicant should for in-country applications granted a period of 6 month leave outside the rules, which, the applicant must then apply to extend their permission to stay under a category of their choosing or leave the UK. For out of country appeal the only appropriate remedy is to offer the individual a free entry clearance application once they have identified the most suitable route for them to return to the UK.”
35. The Applicant’s skeleton argument, and with which I agree and which Mr Payne did not suggest is incorrect, states:
“The key principles to determining whether a claim has been lawfully so certified may be summarized as follows:
a. The threshold for lawful certification of a claim is one of the highest in law, and the test is equivalent to “beyond reasonable doubt” (ZT(Kosovo) v SSHD [2009] 1 WLR 348 at §23, §52);
b. The reason the threshold is so high is the “draconian” nature of the power, which deprives a person of their statutory right to appear at the hearing of their appeal ZT(Kosovo) v SSHD [2009] 1 WLR 348 (at §58), and following the 2022 Act of having a right of appeal at all, as well as having the effect of extinguishing leave to remain statutorily extended by s3C of the Immigration Act 1971;
c. In a certification case involving Article 8 ECHR the Court must consider the five-stage approach in R(Razgar) v SSHD [2004] 2 AC 368 (FR(Albania) v SSHD [2016] Imm AR 1341 at §49);
d. “If, on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded” R(L) v SSHD [2003] 1 WLR 1230 (at §58);
e. The test is a “black and white test” that does not depend on where the burden of proof lies (ZT(Kosovo) v SSHD [2009] 1 WLR 348 (at §22));
f. The facts of a claimant’s case should be taken at their “reasonable height” (EM(Eritrea) v SSHD [2014] AC 1321 at §8);
g. The Court in considering an application for judicial review of a certification decision must employ “anxious scrutiny” (ZT(Kosovo) v SSHD [2009] 1 WLR 348 (at §21); FR(Albania) v SSHD [2016] Imm AR 1341 at §96);
h. The intensity of the Court’s reviewing duty in a certification case is such that it is “at the at the more and possibly most intensive end of the spectrum” (FR(Albania) v SSHD [2016] Imm AR 1341 at §64);
i. Indeed, although the Court is reviewing the decision of the Secretary of State, in practice that is no different from the Court reaching its own view of whether the exceptional threshold is reached (ZT(Kosovo) v SSHD [2009] 1 WLR 348 (at §22).
In YH, R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 116, it was said that “the ‘anxious scrutiny’ principle should in practice ensure that the benefit of any realistic doubt will be given to the claimant” (§12). It requires moreover for “…decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” (§24)”
The Applicant’s Submissions Summarised
36. In respect of Ground 1, the Applicant contends in summary that the sole question in respect of whether the Applicant’s human rights claim could be lawfully certified is whether it meets the exceptionally high bar of being “bound to fail”. The Applicant states that there is room in the statute neither for gloss nor for extraneous factors.
37. The Applicant correctly states that if on at least one legitimate view of the facts, the claim could succeed, then it was not lawfully certified.
38. The Applicant states that his case is: (i) that Article 8 ECHR is engaged by the Respondent’s refusal; and (ii) that the refusal of entry clearance was disproportionate.
39. As the Applicant also identifies, the question for me, however, is whether an independent First-tier Tribunal Judge who accepted that position would be acting irrationally.
40. The Applicant submits that Article 8 ECHR is engaged. The threshold of engagement of Article 8 ECHR is a low one with reference to R (Quila & Another) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621 at paragraph 30 and an intrinsically fact-dependent one with reference to R (Balajigari and others) v Secretary of State for the Home Department) [2019] EWCA Civ 673; [2019] 1 WLR 4647 at paragraph 89.
41. The Applicant refers to having been a highly successful student, awarded an MBA, and was living lawfully in the UK for many years before he was, on his case, falsely accused by the Respondent of cheating in a TOEIC English language test. He also states that the Respondent, as established in R(Ahsan) v Secretary of State for the Home Department [2017] EWCA Civ 2009; [2018] Imm AR 531, unlawfully denied him an effective remedy. The Applicant applied for entry clearance in order to have the opportunity to clear his name and resume his private life in the United Kingdom.
42. The Applicant states that the if the facts are taken at their reasonable highest, there can be no doubt that Article 8 ECHR is engaged by the refusal of that application. He states that it cannot be reasonably contended that the Appellant is “bound to fail” in arguing that Article 8 is engaged.
43. The Applicant states that the Respondent’s attempts to suggest that he is seeking entry in essence to invent a private life, but this was not a case such as Secretary of State for the Home Department v Abbas in which it was being contended that the applicants, with no previous history in the UK, should be afforded the right to enter in order to develop a new private life. The Applicant states that on the contrary, on the present facts, there can be no doubt at all that the Applicant at least had a private life in the United Kingdom at the time that the Respondent unlawfully curtailed his leave to remain: he had been living and studying in the United Kingdom for several years.
44. The Applicant’s central contentions are that that the ongoing allegation of dishonesty impinges upon his reputation and that he previously enjoyed private life in the UK which was ruptured and has not been extinguished are said to sit firmly within established jurisprudence. The Applicant relies on R(Ali) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372; [2024] 1 WLR 5097 which was considered by UTJ Blundell in the Applicant’s successful claim for judicial review in 2024.
45. The Applicant states that if it is the Respondent’s case that the fact of the Applicant having left the United Kingdom in itself extinguishes his private life then that was incorrect on these facts. Firstly, because it was clear from Nixon v Secretary of State for the Home Department [2018] EWCA Civ 3; [2018] HRLR 7 that an unlawful removal does not extinguish a person’s private life. He states that also follows from the judgment of the Court of Appeal in R(Ahsan) at paragraph 133 (and indeed the Respondent’s own ‘deport first appeal later’ appeal structure under s94B of the 2002 Act), as well as conclusively from (R)Ali.
46. The Applicant contends that secondly, the making and the maintenance of the false allegation against the Applicant itself interferes with his right to private and family life with reference to Pfeifer v Austria (2009) 48 EHRR 8. The Applicant states that the Respondent does not withdraw that allegation, while continuing to deprive the Applicant of a means of contesting it. He states that the continuing attack on his reputation, with all its continuing effects, interferes with the Applicant’s private life and is central to the question of whether the time that has elapsed since his departure from the United Kingdom has extinguished that private life.
47. Thirdly the Applicant contends that his connections to the United Kingdom, in the form of his partially completed studies, and his investment, and his social relationships, all continue to exist.
48. Fourthly, the Applicant states that the manner and reasons for his departure, and the reasons for the delay are relevant to the question of whether or not private life still exits. The Applicant states that he did not leave by choice; he was forced to leave. Moreover, he says that over three years of the delay in the present claim being heard is directly attributable to the Respondent’s repeated attempts to prevent him having a right of appeal. Additionally, he states that the delay also needs to be seen in the context of the Respondent’s attempts to frustrate his appeal for years by refusing to recognise that a human rights claim had been made at all – a position which Upper Tribunal Judge Blundell found to be unlawful.
49. The Applicant says that ultimately the weight to be accorded to each of these features, in determining whether the Applicant still has a private life in the United Kingdom, is a matter for the First-tier Tribunal. He says that an independent First-tier Tribunal Judge who concluded that on balance the Applicant still did have a private life in the United Kingdom would clearly make no error.
50. The Applicant states that the Respondent’s suggestion that there is some kind of procedural bar to such a conclusion is wrong with reference to the s.10 removal decision dated 21 March 2015. The Applicant responds to say that firstly, the theoretical historic availability of a previous right of appeal is wholly irrelevant to whether the Applicant has a private life in the United Kingdom. He says if relevant at all, it is relevant to proportionality. Secondly, he states that the reality is that at no stage did he enjoy a viable “first appeal route”. Namely an effective right of appeal for evaluation of the deception allegation. The Applicant states that the right of appeal offered in 2015 was unarguably not effective and that by the time of the judgment in R(Ahsan) he was outside of the UK and in highly precarious circumstances.
51. The Applicant states that the fact that FTT Judge Swaney refused to permit an appeal years out of time is irrelevant. He says that is because the FTT was answering a different question and it did not remotely cure the failure to provide the Applicant with an effective remedy at the material time.
52. The Applicant states that he enjoyed a private life in the UK, which was abruptly and unfairly and unlawfully ruptured, without access to an effective remedy, with ongoing effects to the present day. He states that whether the length of his absence from the UK was sufficient to extinguish his private life, notwithstanding the ongoing effects of the Respondent’s decision and his continued links to the United Kingdom, is or would be a question of fact for the Tribunal. He states that a FTT Judge would be entitled, on at least one legitimate view, to conclude that the Applicant does still have private life rights in the United Kingdom.
53. In respect of proportionality the Applicant’s case was said to be one that could succeed on at least one legitimate view. The Applicant refers to his leave being curtailed in a manner that was unarguably procedurally unfair with reference to R (Balajigari) at paragraph 55 on the basis of an allegation against his character and without being given an effective remedy. The Applicant contends that it follows R(Ahsan) with reference to paragraph 88, all things being equal, the proportionality of the refusal of entry clearance depends on: (i) whether it is established that the accusation is true; and (ii) whether a fair procedure has been made available for resolving it.
54. The Applicant contends that it is unarguably the case that a fair procedure was not made available for resolving the matter given the Court of Appeal’s finding on that specific issue in R(Ahsan), in particular at paragraphs 90-92 and 97-98. The Applicant states that he maintains his innocence of the accusation. The Applicant states that he was lawfully present, on the path to his intended PhD, when the Respondent made the false allegation that resulted in him having to leave his life in the United Kingdom behind in calamitous circumstances. He says that the consequences for him since then have been, as detailed in his witness statement have been appalling.
55. The Applicant states that relevant factors in deciding whether the Respondent’s refusal of entry clearance in those circumstances was disproportionate include the historical injustice of the fact that the Applicant had his leave curtailed in a manner that was procedurally unfair; and the historical injustice of the fact that the Respondent denied the Applicant an effective remedy against that accusation, including the harm that the Applicant suffered as a result. He states that the fact that if that accusation was wrongly made, he would be entitled to leave to remain and/or a concession by the Respondent as to a fresh application for entry clearance.
56. The Applicant states that the Respondent relies on certifying the claim on two factors which she says mean his claim is nevertheless bound to fail. These are (i) the time that has elapsed; and (ii) the fact that the Applicant had an out-of-country right of appeal. The Applicant states he accepts that the time that has elapsed will inevitably be relevant to the proportionality of a refusal of entry clearance, as it will in any private life entry clearance case and refers to Sargsyan v Azerbaijan (2017) 64 EHRR 4. The Applicant says however that the passage of time is not in the present case remotely determinative because firstly on the Applicant’s case (which must be taken at its highest) the reason for the elapse of time is that firstly that the Respondent refused to give him an effective remedy, and then because he became homeless and destitute due to the Respondent’s unlawful actions, meaning he was unable to pursue his appeal. Secondly, he states he has been actively seeking a remedy now for several years, in the face of the Respondent’s intense and constant resistance. Thirdly, he says that 2 of the past 3 years have been taken up entirely with the Respondent’s unlawful refusal to accept that his human rights claim was a human rights claim. Fourthly, the Respondent’s continued maintenance of the position that he was a fraudster continues to have real-world effects on him (prejudicing not only his reputation among family and friends, but also future applications to the United Kingdom and many other countries).
57. The Applicant states that, moreover, the fact that he had an out-of-country appeal cannot be sufficient to justify certification for two reasons, each of which alone is determinative against the Respondent. Firstly R(Ahsan) makes clear that at the time the Applicant left the United Kingdom that appeal was not an effective remedy in principle either at common law or for the purposes of Article 8 ECHR. Secondly, on the Applicant’s factual case (which must be taken at its highest) the appeal was not in his specific case an effective remedy: he was homeless and destitute for years before he was able to instruct solicitors, by which time it was too late. The Applicant stated that the Court of Appeal’s decision had decided: “Whether a person’s connections to the United Kingdom, including their involvement in education, [] form a sufficient private life to engage Article 8 ECHR will simply depend on the facts (§86).”
58. The Applicant states that a matter of enormous and enduring significance to him is that he has no means of challenging the very serious allegation the Respondent made and maintains against him. Irrespective therefore of whether the Respondent considered his human rights appeal bound to fail, she was required to consider whether to afford him a right of appeal to resolve that accusation.
59. The Applicant states that the Respondent failed to lawfully consider the exercise of her discretion not to certify the Applicant’s human rights claim and failed to consider material factors relevant to that discretion. He says that the supplementary decision of 7 March 2025 does not rescue the Respondent from the muddle she has created for herself by: (i) initially arguing in her Summary Grounds of Defence at paragraphs 80 to 81 that there was no basis on which it could be said that the need to consider the exercise of discretion even arose; and (ii) that even were the discretion to be considered there was no realistic prospect of an alternative result being reached as regards certification; before (iii) then seeking in a new decision of 7 March 2025 to purport to consider the discretion, coming to the same conclusion that discretion should be exercised against the Applicant on the same basis that the claim was certified. The Applicant says that this appears to be pre-determined.
60. The Applicant states that the Respondent’s reasoning was in the circumstances plainly irrational and that the Respondent’s reliance on R (Islam) v SSHD [2025] EWCA Civ 458 was misplaced because that case related to a claimant’s contention that a provision of the immigration rules (in Appendix Skilled Worker) imported a discretion by use of the word “may” even where there was an invalid application.
61. The Applicant states that it is the value of the appeal itself, the chance to establish innocence and its importance. The Applicant states that in Khan & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1684 the Respondent gave an undertaking that “[i]n any human rights appeal where TOEIC fraud is relied upon the Respondent will instruct its Presenting Officers to request a finding on the fraud to be made by the FTT as part of its fact finding on the human rights claim.” The Court noted at paragraph 40 that:
“…the parties have agreed this course on the basis that the FTT will be encouraged to decide as a matter of fact in the context of the proposed appeals to it whether in each case the Appellant did cheat in their TOEIC test as alleged, even if it might be possible to dispose of the appeal on some different basis 18 (see para. 27 above); and I believe that this Court should endorse that encouragement.”
62. The Applicant states that the purpose of the course of action that resulted in the settlement in Khan and was to remedy the harm done by the Respondent’s initial practice in TOEIC cases of making the accusation while seeking to prevent or frustrate any right of appeal. The Applicant states that he suffered from precisely that detriment. He had his leave curtailed on the basis of an allegation never put to him. He was given no effective remedy and had to leave before judgment in R(Ahsan) would have given him one.
63. The Applicant also contends that a person’s reputation has been recognised by Strasbourg as forming a key part of their right to respect of private life. The Applicant refers to Pfeifer v Austria (2009) 48 EHRR 8 at paragraph 35 and the Applicant contends:
“In order for Article 8 ECHR to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v Germany [2012] ECHR 227 at §83).
77. There can be no reasonable doubt that an allegation of fraud or dishonesty made by a state, the result of which is expulsion, is sufficiently serious to engage Article 8 ECHR. This is particularly so where the state itself considers the allegation sufficiently serious to designate the accused’s presence in the country not conducive to the public good.”
The Respondent’s Submissions Summarised
64. The Respondent states that the issue of whether an application engages Article 8, and a refusal thereof thereby attracts a statutory right of appeal, turns upon an examination of the substance of the factual claims made.
65. The Respondent states that with respect to the submission that taking Applicant’s case at its highest, it is capable of engaging Article 8, I should note the following.
66. Firstly, the Applicant’s skeleton argument does not particularise any ties retained, or ever enjoyed, engaging Article 8 in its family or private life aspect with the UK.
67. Secondly, the Applicant’s home is in Karachi, Pakistan. This remains the case whether or not his circumstances there are difficult. The Respondent states that the summary of the Applicant’s Article 8 claim, taken at its highest at paragraphs 30-36 of his skeleton argument, is that:
(i) “He claims to have present difficulties with family and his material circumstances in Karachi (§30),
(ii) He suggests, without particularising the same, that he once “had” a private life in the UK at the point of curtailment in 2015 (§34),
(iii) He suggests that leave was curtailed in 2015 when he had “partially” completed his studies (§36).
(iv) In fact, the Applicant witness statement and documentary evidence in support, show him to have completed his course of study in 2012, and to have enjoyed no permission to embark on a course since then. The Respondent states that he further fails to engage with the fundamental principle, that the right to complete a course of education is not as such a right protected by article 8 as explained by Underhill LJ in R(Ahsan) at paragraph 86.”
68. The Respondent states that the Applicant’s position is not that he was unable to complete his courses nor obtain the MBA degree he had embarked upon.
69. The Respondent states that the ‘air of utter unreality’ of the Applicant’s submission that the 2021 refusal constituted an interference with his extant Article 8 rights enjoyed in the UK is apparent from his October 2022 submissions, and his witness statements in support of the same. The Respondent stressed that not only was the Applicant not presently enrolled or even associated with any educational institution, but he also lacked both the funds and (on his case) the health to embark upon such activity.
70. The Respondent states that, therefore, the Applicant’s Article 8 claim based upon a historic hope of applying for a fresh course by way of PhD was hopeless.
71. The Respondent states that the Applicant has never been able to point to his claimed retained ties and that he has been unable to evidence such ties even for the period of 2015 to 2017, before his voluntary departure and following his failure to report.
72. The Respondent correctly states that it is for the Applicant to establish such ties and not for the Respondent to disprove them. The Respondent also states that in light of the Applicant’s failure to provide such evidence, he is unable to submit that there are material disputes of fact a hearing provided by an in-country right of appeal and/or circumventing the FTT’s unchallenged adjudication.
73. The Respondent states that the Applicant’s Grounds and Skeleton argument cite no authority for the proposition that ECHR imposes an obligation upon Member States to permit third country nationals to enter their territory for the purposes of engaging in litigation said to be material to their enjoyment of reputation in their country of origin. Still less so when, during the years in which the person resided in the place of publication, no such civil claim was advanced.
74. The Respondent states that the ECtHR has, on occasion, been prepared to verify whether, in domestic proceedings concerned with the interplay of Article 10’s right to freedom of expression, and Article 8’s right to the protection of private life, including the impact thereupon of attacks upon an individual’s reputation, the domestic courts have struck the “requisite balance”. For example the ECtHR dismissed an application brought by a psychiatrist living in Austria, complaining that the Austrian courts had failed to protect her reputation against defamatory allegations made in a newspaper article (published in Austria) which stated in particular that she suffered from psychological problems such as mood swings and panic attacks but had been working as a court-appointed expert for many year. The Austrian Courts had, the Court found, struck the requisite balance between the competing interests.
Consideration and Analysis
75. It is clear that the underlying purpose of the principle of public law that has been said to have been violated needs to be borne in mind and consideration should be given to whether that purpose has in fact been achieved.
76. I remind myself at the outset that a low threshold is to be met by an Applicant in respect of the s94 certification. This was explained in R (Bagdanavicius) v Secretary of State for the Home Department [2003] Civ 1605; [2004] 1 WLR 1207. This was further dealt with in FR (Albania) and to which I have referred previously. The intensity of the duty of review that applies in certification cases is such that it is at the ‘more and possibly most intensive end of the spectrum’. The draconian nature of the power of certification, alongside the effect of the amendment of s94(3A) NIAA 2002 (added as of 28 June 2022 by s28(3)(a) of the Nationality and Borders Act 2022) prevents a person from bringing an appeal in or out of country, if certified. I must consider whether the Applicant’s claim is clearly unfounded or put another way, whether it is bound to fail. If on at least one legitimate view it could succeed, then the claim was not lawfully certified by the Respondent. I must take care not to deprive the Secretary of State of her ‘gatekeeping’ or ‘screening’ function which the statute provides her with.
77. Ground 1 raises several sub-aspects in respect of the submissions relating to Article 8 private life.
78. First, I consider the Applicant’s submissions in respect of the engagement of Article 8 ECHR. The threshold for engagement is a low one as was made clear by the Supreme Court in R (Quila and another) v Secretary of State for the Home Department [2011] UKSC 45. It is also intrinsically a fact sensitive consideration.
79. I was referred to the Court of Appeal’s earlier decision in Abbas. It is important to see how Abbas was later considered by the Court of Appeal in R (Ali). Andrews LJ and with whom JJ King and Coulson agreed explained at the outset the highly unusual facts of the case before them when she said at paragraph 1:
“This is, by any standards, and in many different respects, a most extraordinary case. The underlying factual scenario is one which is highly unlikely to be repeated—or so one would hope.”
80. Indeed, no one could disagree that the facts in R(Ali) were extraordinary whereby a person with settled status had found it so difficult to return to the UK after he had lost his travel documents whilst abroad.
81. It is also important to recall the point of principle that the Court of Appeal was actually dealing with and how it related to the Court of Appeal’s earlier decision in Abbas. Andrews LJ explained that the point of principle was that:
“Is the private life aspect of article 8 of the European Convention on Human Rights (‘ECHR’) engaged when a resident non-national who was granted indefinite leave to remain, and whose travel document has been lost or stolen whilst abroad, seeks re-entry to the United Kingdom to resume their life in the United Kingdom?”
82. In R (Ali) the Court of Appeal was dealing with an Appellant who had Indefinite Leave to Remain and that he was seeking re-entry to the UK to resume his life in the UK. That Applicant’s whole family were lawfully in the UK (and later all became British whilst he was out of the UK). Clearly the most obvious difference with R(Ali) and the case before me is that the Applicant before me has never had Indefinite Leave to Remain and indeed has no leave to enter or remain of any type. At paragraph 16, Andrews LJ had noted that even though the Appellant was a citizen of Somalia, he had been stranded in Ethiopia where had sought assistance from UK consular services.
83. Andrews LJ concluded (my underlining):
“59. In my judgment, depending on the facts, the refusal of entry clearance could interfere with a person's private life developed in the UK sufficiently to engage article 8 , and Abbas does not decide the contrary. It is unnecessary for the purposes of this appeal to decide anything more than that it was open to this claimant, as a settled migrant, to contend that the refusal of re-entry to resume his private life within the UK was disproportionate in all the circumstances. There is no need for the court to consider the position of an individual whose private life within the UK is of a more tenuous nature.
60. The question whether the interference in this case was disproportionate will be a matter for the Upper Tribunal to determine on the appeal, but the extraordinary circumstances in which the claimant found himself unable to return within two years will obviously be a relevant consideration.”
84. Therefore, the case before me is that identified by Andrews LJ at paragraph 59 in R (Ali). Namely, the case of a non-settled Applicant. Strictly what was said in respect of non-settled applicants was therefore obiter.
85. In my judgment, the Court of Appeal in R(Ali) merely distinguished Abbas. Any suggestion that Abbas does not apply to cases involving non-settled applicants is incorrect.
86. Although not referred to specifically within the parties’ submissions before me, Andrews LJ had referred to those applicants who previously had the benefit of Indefinite Leave to Remain, but which leave had expired because they had been out of the United Kingdom for 2 years or more. I draw some analogy here because even those applicants who clearly had extensive connections with the UK via their Indefinite Leave to Remain have to meet certain requirements to retain or to even regain their leave. I conclude this shows that any previous private life previously held can indeed extinguish. Andrews LJ said:
“56. By contrast, paragraph 19 envisages that in cases where the individual concerned is absent for more than two years, and does have to seek entry clearance, a fact-sensitive proportionality exercise would be undertaken by the Entry Clearance Officer of precisely the same nature as the exercise that would be undertaken under article 8 . In such a case, the reasons why the person left the UK, why they did not come back within two years, the period spent in the UK and outside it, and the existence of family and other ties will all have a part to play.”
87. I summarise thus far to state that in my judgment, whilst the refusal of entry clearance can interfere with a person’s private life developed in the UK to engage Article 8, that private life must be exceptionally strong.
88. In my judgment, only an exceptionally strong entry clearance application fully evidencing the alleged interference with a person’s private life developed in the UK can engage Article 8. In my judgment such a case will be extremely rare. Particularly strong extant ties created within the UK are required.
89. I therefore go on to consider, in line with s94 requirements, whether this Applicant’s case is one of those extremely and exceptionally rare cases that engages Article 8 in respect of the Applicant’s private life. That also requires me to consider whether the Applicant has particularly strong extant ties created within the UK.
90. I have regard to the sources of information contained in numerous documents. These include the Applicant’s witness statements, his solicitor’s applications/ submissions made to the Respondent and the Applicant’s grounds of challenge and skeleton argument.
91. It is obvious that the Applicant has a strong wish and desire to be in the UK. I can perfectly understand how he misses what he had when he was in the UK. For example, the Applicant says in his witness statement dated 2 October 2024:
“12. Before the TOEIC allegation, my life in the UK was exciting and full of hope. Studying in the UK was a dream of mine that I was fulfilling. During my time in the UK, I had studied towards and been awarded an MBA. I hoped to study for a PhD and I waited nearly three years for a resolution to my Tier 4 application, including going through a successful FTT appeal. When the allegation came and I was served with a notice of removal, my entire life collapsed.
13. By the time I was forced to leave the UK as a result of my father’s ill-health, I had lived in the UK for over 7 years. In that time, I had not returned to Pakistan. The UK was firmly my home and where I saw my future. My previous aspiration to continue studying beyond my MBA and complete a PhD is a testament to the broad horizon that I saw for myself before the tarnishing of my life with the false TOEIC allegation.
14. If I had not been wrongfully accused of cheating on my TOEIC test, it is possible that I would be married and have children, a successful job and a house to live in in the UK or abroad. My family would be proud of my achievements rather than ashamed because of the allegation. It is difficult for me to imagine this scenario whilst I am currently living off nothing, surviving on the kindness of others and without any communication with my family.
15. The friends and class fellows that I had when I was living in the UK went on to have successful careers and some have completed PhDs, as I had wanted to do. They are all settled and pursuing nice lives. It pains me to think of the nice lives that these people are able to pursue, when my opportunity to do the same was taken away.”
92. In his earlier witness statement dated 17 April 2023 the Applicant referred to the intended purpose of his application for entry clearance:
“With advice from my solicitors, I decided to apply for leave to enter the UK. My aim is to be able to pursue an in-country appeal against the allegation that I cheated in my TOEIC test, like the other people who were falsely accused but remained in the UK. I cannot move on with my life until I have had this opportunity.”
93. Within that witness statement the Applicant also referred to his old friend Mr Azam Siddiqi, who has a 4 bedroomed home and who is a heating engineer and he states Mr Siddiqi will be able to assist him financially and with accommodation.
94. In his further witness statement dated 27 November 2023 the Applicant repeated his wish to clear his name when he said:
“All I want is the opportunity to clear my name of the false allegation that I cheated in the TOEIC test. This allegation has ruined my life and it has proven impossible for me to get back on track with it hanging over me.”
95. I completely accept that experiencing the death of his father must have been a painful and shocking time for the Applicant. Loss of one’s parents is. Added to that was that the Applicant was then ostracised by his family. The Applicant states he has not done well mentally. I note that when the Appellant had been in the UK, he had not returned to Pakistan for some 7 years and as the older sibling he had not been seen to be contributing financially to the family in Pakistan either. I accept that these were difficult matters and which led to difficulties within the family. The Applicant went to Saudia Arabia for Umrah, being a religious trip. He also went to Dubai, stating that he went looking for work.
96. In my judgment, when the Applicant left the UK, it was his decision to do so and it was a voluntary departure. Indeed, the Applicant admits in his witness statement of 27 November 2023:
“I was living in the UK illegally, liable for detention and removal at any point.”
97. I must take into account that the Applicant has been outside of the UK now for some 8 years. At the time of his application for leave to enter the UK he had not lived in the UK after leaving voluntarily for some 5 years. At the time of the Respondent’s certification of the Applicant’s application as being clearly unfounded, the Applicant had been outside of the UK for some 7 years.
98. I have paused and reflected on the submissions on behalf of the Applicant made in powerful and skilful terms relating to the emotional effect of the choice that the Applicant had to make. It would be wrong for anyone to fail to acknowledge that the Applicant had a very difficult choice to make.
99. I mean to cause no hurt when I conclude though that the choice for the Applicant of whether to remain in the UK or to leave the UK was a choice and it was his choice to make. We all have to make difficult decisions when life events occur. Timing is rarely on our side when we have to do so. Events regularly seem to occur when we are least prepared or when we might feel emotionally isolated. I accept that this Applicant, in December 2017, when he was in the UK, might have felt even more isolated compared with those more established within the UK.
100. The Applicant appears to have known about the impending decision of the Court of Appeal in R (Ahsan). He chose to leave the UK, nonetheless on 2 December 2017. He had received legal advice from persons in the UK once he was in Pakistan in early 2018, although he appears to suggest the legal advice was not good legal advice. If it was not good legal advice, then he will have had avenues for complaints against those legal advisers or even to consider legal proceedings against what he, in effect, says was negligent legal advice. Indeed, as FTT Judge Swaney explained in her decision of April 2022, the Applicant, as an intelligent educated man (he has an MBA) could simply have filed grounds of appeal himself in early 2018. Indeed, many litigants in person do, including from abroad. Many who suffer with poor mental health and financial difficulties also are able to file applications for leave from abroad. As FTT Judge Swaney explains, the process to file applications is a simple one.
101. I have struggled to see how a First-tier Tribunal Judge could possibly consider matters any more favourably for the Applicant in terms of the choice that he had to make. It appears to me that the Respondent was perfectly entitled to and indeed obliged to take into account that the Applicant’s departure from the UK was freely made by him and entirely voluntarily. It is impossible to accept, even on an overly generous reading, that the Applicant was in effect, forced to leave. That is what is really being claimed, but that is not an accurate depiction. The Applicant left the UK voluntarily.
102. In any event, the weakness of the Applicant’s private life can be seen by how he was living in the UK illegally. He had been failing to comply with basic requirements, such as to report to the Home Office. Even if he was waiting to see how the caselaw might develop, in my judgment living illegally and then not reporting to the Home Office shows how weak any private life really was. The friendship with Mr Siddiqi does not really feature in the Applicant’s arguments and that is not surprising because it adds little. The Applicant’s suggestion that he wishes to continue his studies must have been a wish for the future, because he was not on any course of study for some years when he was in the UK. The claimed social relationships were of such a tenuous nature to hardly have been referenced in the very large trial bundles which have been provided to me. Nor does the Pfeifer line of authority assist the Applicant. There is nothing to show that to be able to challenge the claimed reputational damage, the Applicant must be permitted to return to the UK. Nor does he appear to be able to meet limitation issues. In any event, the Applicant did have a lawful recourse to such an approach, but he had failed to pursue it. In 2022, FTT Judge Swaney more than adequately considered the application for permission to appeal out of time and refused the Applicant’s application. Therefore, the Applicant has had effective remedies, but he has either failed to pursue them timeously or when he did appeal out of time, lawful and clear reasons were provided refusing to extend time for him to appeal. The fact that the Applicant has not achieved the remedy he had sought does not mean it was not an effective remedy.
103. In my judgment, this case can be distinguished from the Court of Appeal’s decision in Nixon v Secretary of State for the Home Department [2018] EWCA Civ 3. That was an unlawful removal case. The case before me is one in which the Applicant left the UK of his own choice, albeit one involving the Applicant’s father being seriously ill in Pakistan which had led the Applicant to voluntarily leave the UK.
104. In my judgment, the Respondent is unarguably correct that the Applicant’s private life, such as it was, has extinguished. Even if I am wrong about that, for the reasons I have referred to, the Applicant’s private life is of such a tenuous nature, even taken at its highest, that his attempts to ‘peg’ onto it fails even when being overly generous to his version of the facts.
105. In my judgment the Applicant’s real complaint, seems to amount to regret. His regret being that instead of leaving the UK on 2 December 2017 had he remained in the UK for just a short few days longer, then the Court of Appeal’s decision in R(Ahsan) on 5 December 2017 would have come to his aid.
106. The reality, as the Respondent submits and which the Applicant accepts in in his witness statements, is that he wishes to re-enter the UK to clear his name and to appeal against the Respondent’s earlier decisions about his cheating.
107. Regrets and the ‘what ifs’ will always continue to feature heavily in all of our lives. In my judgment it is important to consider the facts and not to be blinded by those regrets and the ‘what ifs’. Whilst I can see the Applicant wants to turn back time, it is obviously impossible to do so.
108. In my judgment, the Applicant’s private life, such as it was, even when he was living in the UK illegally fearing that he could be detained and removed at any time, was of such a tenuous nature that it was almost non-existent private life. Proportionality has been considered unarguably lawfully by the Respondent and I discern no error when I consider it for myself.
109. I accept that the TOEIC case law developed, as has been highlighted to me in terms of in country and out of country appeals, but I do not see how that of itself beings to assist the Applicant. The Applicant’s case remained one in which the voice recordings for his English language tests are not his voice recordings. They are proxy voice recordings. He insists that he had attended the Premier Language Training Centre and does not understand why someone else took the tests for him. These are not new or novel arguments. The history of the ETS and TOEIC cases is extensive and in my judgment the Applicant, despite providing numerous witness statements, has said little of any substance which could even remotely enable him to get around the cheating which the Respondent stated he had participated in.
110. I am well aware that many post graduate students had contended that there was no need for them to cheat because their English language abilities were sufficient to pass the tests, but as the caselaw makes clear, there were all sorts of reasons why even those with good English language skills had used a proxy. Whether for convenience in not having to attend a test centre, the advice of the test centre or otherwise. This is set out within the Upper Tribunal’s decision in DK and RK (ETS: SSHD evidence: proof) India [2002] UKUT 00112 (IAC).
111. Whilst I must hesitate long before I hold against the Applicant facts which I must accept for the purposes of s94, I cannot somehow suspend disbelief. To do so would mean that I fall into error, even when having to consider the facts at such a heightened level.
112. Further, as the Respondent unarguably and irrefutably correctly states, at all times material to his application for entry clearance, the Applicant’s home was in Karachi. The Applicant relies upon his circumstances in Pakistan including the relations with his family in Karachi, his homelessness and destitution, but the Respondent correctly refers to the Applicant’s ability to travel to Saudi Arabia and the United Arab Emirates after he had left the UK to see his father in Pakistan. Nor as the Respondent states, did the Applicant depart the UK part way through any course of studies. Nor has the Applicant been able to show even to the low standard that he would, if re-admitted to the UK, access a course of tertiary education in the UK or obtain any form of leave under the Immigration Rules.
113. Had it been necessary I would take into account what I have stated above with reference to the judgment of Andrews LJ in R (Ali). Even those with Indefinite Leave to Remain are required to establish their claim to re-enter the UK after 2 years of absence. In this Applicant’s case he was not settled in the UK with Indefinite Leave to Remain and indeed he had been living in the UK illegally for some years.
114. It means, in my judgment, that the Applicant’s argument is hopeless and could not on any legitimate view succeed before the notional First-tier Tribunal Judge.
115. Even if I am wrong and I must suspend belief and that the Applicant did not cheat in his English language tests, the Applicant’s case remains a hopeless one.
116. In my judgment, the Applicant’s argument that he ought to be permitted to clear his name or that he be granted permission to enter the UK has no merit whatsoever. The Applicant had the opportunity to do so as early as 2018. The Upper Tribunal in R (on the application of Watson) v (1) Secretary of State for the Home Department and (2) First-tier Tribunal (Extant appeal: S94B challenge; forum) [2018] UKUT 00165 (IAC) gave him that opportunity. The Presidential panel explained that even for removal cases:
“Where an appellant's appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).”
117. The Applicant had sought via a further procedural mechanism to clear his name. His attempt to appeal out of time in 2022 failed. FTT Judge Swaney’s decision was made on 22 April 2022 and so before the amendment on 28 June 2022 which had added s94(3A) preventing appeals from outside of the UK.
118. The Applicant had an effective remedy in respect of his out of country appeal. The Applicant had retained experienced solicitors. He also had assistance of Legal Aid. He had resources fully open to him. The fact that his remedy failed does not mean that he can therefore now seek to re-open his ‘appeal’ so many years later.
119. FTT Judge Swaney in the unusually lengthy, detailed and clear decision had considered all relevant matters, including all of the compassionate matters but had refused the Applicant’s application to extend time for him to appeal. That decision remained unchallenged. I referred to that decision above, almost in full.
120. There has to be finality at some point. The years which have elapsed in this case between the Applicant’s various applications speak for themselves. I see no basis upon which it can be even remotely said that the compassionate factors have not been considered whether by FTT Judge Swaney or by the Respondent.
121. Proportionality is raised in the context of the Applicant’s leave to remain having been curtailed procedurally unfairly because he had not been given an effective remedy and that he “was lawfully present on the path to his intended PhD”. In my judgment that is plainly wrong because firstly the Applicant had not in fact been studying for some years and secondly, he had been living in the UK illegally for some years. I am unable to accept that there was any historical injustice against the backdrop to the ETS and TOEIC line of cases. Here the Applicant chose to leave the UK, then waited years to appeal and when he did so, a correct and lawful decision followed from FTT Judge Swaney. Additionally, whilst not perfect, the assessment of whether evidence could have been provided by the Applicant from Pakistan via video link was to be assessed on a case-by-case basis.
122. In my judgment there was the absence of a tenable Article 8 claim in any event and so historical injustice simply does not avail the Applicant. As Sedley LJ articulated so well in Patel v Entry Clearance Officer [2010] EWCA Civ 17 at paragraph 14:
“You can set out to compensate for a historic wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there, and art 8 will have no purchase.”
123. As I have said above, the Applicant’s real contest is against time and timing. It is a hopeless contest because he cannot succeed. Time moves forward, regardless of who we are and it always wins.
124. I have already concluded that there is no procedural or other basis upon which I am permitted to ignore or to overlook or to somehow to side-step FTT Judge Swaney’s decision.
125. The reality is that the Appellant was given access to an appeal. Having done so, he was refused permission to bring his appeal because of his own delay in bringing his appeal. In my judgment, the Respondent unarguably fairly and reasonably considered the reasons for the Applicant’s delay and was entitled to come to the decision that she did and the effect it then had on the s94 certificate.
126. I had invited the parties to assist me with whether Res Judicata, being a matter judged, applied to FTT Judge Swaney’s decision. I am grateful for the Applicant’s written submissions provided to me after the hearing. The Applicant reminds me that there was said to be no Res Judicata in subsequent immigration appeals. I have been referred to BK(Afghanistan) v Secretary of State for the Home Department [2019] 4 WLR 111 at paragraphs 37, 39 and 44. I have also been referred to Mubu and others (immigration appeals - res judicata) Zimbabwe [2012] UKUT 398 (IAC).
127. In R (Lloyd Tomlinson) v SSHD [2025 [EWCA Civ 253. Falk LJ, with whom LJJ Bean and Andrews agreed, said at paragraph 66.
“66. I would draw the following conclusions from this review of the case law
• a) Lord Bridge's statement of principle in Thrasyvoulou is of general application. There is no reason in principle why it should not apply to decisions of statutory tribunals in immigration cases, and in particular to the FTT's jurisdiction to determine a human rights claim under s.82 of the NIAA.
• b) As the discussion in Hackney and Munjaz shows, there may be particular difficulties in applying principles of res judicata in relation to matters decided in earlier judicial review proceedings. But neither this case, nor Lord Bridge's reference to cases where "where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right", is concerned with matters decided in earlier judicial review proceedings.
• c) Issue estoppel requires an identity of issue. This will very commonly not be the case in an immigration context, because the relevant matter (such as a claim to asylum) is being assessed at a different time and in the light of the then prevailing circumstances. In those circumstances the Devaseelan guidance will apply. That guidance applies to the proper approach to facts and evidence which has been considered in an earlier decision, where the issue for determination in the later decision is different because it is being determined at a different time.
• d) If, exceptionally, identical issues do arise between the same parties in successive appeals to the FTT, then in principle issue estoppel may apply, subject always to the "special circumstances" exception referred to in Arnold v NatWest and Virgin Atlantic .
• e) Further, even where the issues are not identical, to the extent that facts are relied on that are "not materially different" from those put before the first adjudicator, they should be regarded as already settled under the Devaseelan guidance, for reasons of fairness that also underpin res judicata.
• f) The fact that the earlier appeal to the FTT may have related to a different kind of decision of the Respondent (such as, in this case, whether to revoke a deportation order as opposed to whether to grant entry clearance) does not prevent issue estoppel if the same issue forms a necessary part of the decision-making in each case. This reflects the distinction between issue estoppel and cause of action estoppel.
• g) Where, as here, a judicial review challenge is made on the basis of a failure by the Secretary of State to follow an earlier determination of an issue by the FTT, principles of issue estoppel can and should be applied by analogy, recognising that the complaint is about administrative action following earlier tribunal proceedings, rather than successive proceedings: TB (Jamaica) and Al-Siri , [48]-[49] above.
128. Clearly the decision of FTT Judge Swaney was not a decision dealing with the factual matrix open to the sort of Devaseelan context of possible re-evaluation on new facts. Nor was the issue decided by FTT Judge Swaney in the context of factual matters relating to an asylum claim or international protection claim. The issue before FTT Judge Swaney was whether the Applicant’s solicitors detailed written submissions inviting her to grant permission to appeal out of time had merit. She concluded that those submissions did not have merit and she had refused to extend time.
129. Having considered the Applicant’s written note, I remain of the view that it is not permissible for me to side-step or to ignore FTT Judge Swaney’s decision, but that is what I am in reality being asked to do by the Applicant. I accept of course that Applicants are permitted to challenge decisions made, but this Applicant has to first advance through the s94 statutory hurdle with the information and decisions already made. It would be an error for me to ignore the decision of Judge Swaney, which remains un-appealed (I note the procedural difficulty) and effective. I appreciate that the Applicant has much to say against that decision, but he must overcome the s94 statutory hurdle which is placed before him. When considering that s94 hurdle, I conclude that I am entitled to and that indeed I should take Judge Swaney’s decision into account.
130. I therefore conclude that the Applicant had been given access to an appeal which was refused on the grounds of delay in bringing his appeal. Therefore, added to the Applicant’s voluntary departure from the UK is that he then made his application in 2022 for permission to appeal out of time, very many years later. The Applicant had a remedy. Whilst not perfect, it remained an adequate remedy.
131. In any event, I conclude that Judge Swaney plainly did consider the detailed written submissions which were provided to her in coming to the conclusion that she did when refusing permission to appeal out of time and I am unable to decipher how any different conclusion could possibly have been reached by her.
132. Therefore, in my judgment, the Respondent is unarguably correct that even though R(Ahsan) establishes that an out of country appeal might have been an ineffective remedy in 2018 for many, there is no evidence whatsoever that this remained the case at the time of FTT Judge Swaney’s decision in 2022.
133. The Respondent referred to procedures which have been developed to ensure that an out of country appeal may provide an effective remedy. She refers to Raza v Secretary of State for the Home Department [2023] EWCA Civ 29. That had concerned an appeal against an FTT decision taken following a hearing on 10 and 11 March 2020 which the Appellant attended from Pakistan via video link. Hearings from abroad were possible. I entirely agree with the Respondent that there is no basis for concluding that the Applicant has been denied an effective remedy by reason of his appeal being out of country; he was able to bring the appeal in 2022 to extend time which was refused by FTT Judge Swaney.
134. In my judgment the Respondent is also correct that the Applicant’s application is in reality an attempt to circumvent FTT Judge Swaney’s decision and/or to secure a second right of appeal. Article 8 does not provide a person located abroad a right to a second right of appeal. Especially in circumstances where there is no challenge to the lawfulness of the decision in the first appeal. Put another way, the Applicant seeks a second bite of the cherry and that is impermissible.
Ground 2: Discretion Not Applied
135. The Applicant seeks permission to to challenge the Respondent’s failure to exercise her discretion not to certify the Application having (for these purposes) lawfully concluded that the same was clearly unfounded.
136. In my judgment the mere use of the word “may” in s.94 does not connote an enforceable right against a decision-maker on the part of an Applicant to require the decision-maker to demonstrate that a discretion has been exercised.
137. I discern no sensible basis upon which the Applicant advances that the Respondent could have exercised discretion not to certify the Applicant’s application as being clearly unfounded.
138. In any event, the Respondent’s supplementary decision of 7 March 2025 and which I have referred to above provides unarguably correct, lawful and cogent reasons why there was a refusal to exercise discretion in the Applicant’s favour.
139. I have referred to the Applicant having been in the UK illegally in the latter years of his time here, but it remains relevant that he had failed to undertake basics such as to report to the Home Office when required to do so.
140. Further, in my judgment, the Respondent is unarguably correct when stating in her skeleton argument that:
“The Court of Appeal has recently reviewed the circumstances, if any, in which the SSHD is subject to an enforceable obligation to consider the exercise of discretion, having determined an application to be “invalid” under the Immigration Rules: Islam v SSHD [2025] EWCA Civ 4588 Insofar as relevant the Court of Appeal held that the use of word “may” does not without more: 1) connote the type of discretionary power which obliges a decision maker to demonstrate that the discretion has been exercised, i.e. to balance factors for and against the exercise of discretion and to give reasons for coming down on one side or the other (see §41 per Andrews LJ) 2) give rise to enforceable rights against a decision maker within the Rules on the part of an applicant whose application had properly been determined to be invalid, for consideration of the exercise of discretion (§§ 33, 35, 44) 93. By necessary analogy, it does not import any such obligation upon the SSHD under section 94. 94. The argument that the SSHD needed to, but failed, to exercise discretion under s.94 of the 2002 Act in MAP’s favour was not raised at the Pre-action Protocol stage. For the following three reasons, MAP was right not to do so. 95. First, MAP accepts that he does not meet the requirements of the V4.2-4.6 of Appendix V of the Immigration Rules, 96. Second, MAP seeks to enter in order to exercise an appellate remedy. For the reasons given above, he has already been provided with this remedy and there is no legal basis for asserting an entitlement to a further appellate remedy. 8 The Court considered the provisions of SW 1.6 IR which provide that an invalid application “may be rejected” and not considered. 22 97. Third, and linked to this, MAP’s situation does not fall within the SSHD’s policy guidance on the circumstances when, by way of exception, the discretion available to certify should not be exercised 98. The reference to “may” clearly provides for the possibility of consideration of the exercise of discretion. “
141. Nor in my judgment is there a contradiction between a decision to consider exercising the discretion and the absence of an obligation to do so. As the Respondent states, and which I accept, the decision to consider the appropriateness of exercising discretion having regard to the matters relied upon by him was in line with the overriding objective and in the interests of saving cost to the public purse and the reliance by the Respondent on the decision in Caroopen v SSHD [2016] EWCA Civ 2339 at paragraph 30 whereby the Court of Appeal endorsed the distinct roles which may be fulfilled by supplemental letters.
142. I agree with the Respondent that the Applicant has failed to note the distinction between the question of (1) whether the Respondent enjoys a discretion to choose not to certify, and hence whether she may validly give reasons for not doing so and (2) whether applicants enjoy an enforceable right to require the Secretary of State to consider and/or give reasons for not exercising that choice. The 7 March 2025 decision was not concerned with whether the Respondent enjoys the power not to certify once she has concluded that an appeal would enjoy no realistic prospects of success.
143. In my judgment, Ground 2 is unarguable and I refuse permission to apply for Judicial Review in respect of it. Even if I had granted permission, I would have dismissed that ground for the same reasons as I have stated in refusing permission.
144. I have considered the remedy sought by the Applicant in respect of the quashing of the Respondent’s caseworker policy/guidance dated 8 November be declared unlawful.
145. Any policy guidance would be unlawful only if it contains a positive, incorrect statement of law that will induce a person following the policy to breach their legal duty or which purports to set out the full legal position presents a misleading picture of the same: R (A) v SSHD [2021] UKSC 37; [2021] 1 WLR 3931 at paragraphs 43-47. That is plainly not the case in this policy.
Conclusion
146. The Applicant remained in the UK as someone who had been failing to report to the Respondent. That does not begin to suggest that such private life could meet even the low threshold. In my judgment, the notional First-tier Tribunal Judge properly directing themselves could not begin to consider allowing the appeal. The application would be bound to fail.
147. What the Applicant really contends is that his timing was unfortunate. He waited 3 years between 2012 and 2015 with no real leave to remain and whilst he was not reporting to the Respondent for some time within that period. Then shortly after he did leave the UK to visit his father in Pakistan on 2 December 2017, the Court of Appeal on 5 December 2017 handed down its judgment in R (Ahsan). That could have permitted an appeal from within the UK. The Applicant then waited some years before proceeding with matters further. Whilst I accept that is not easy to secure legal aid, whether from within the jurisdiction or from outside it, the time elapsed is lengthy. I note too that the Applicant has now engaged in litigation for some time with the Respondent, but that of itself does not assist the Applicant.
148. In my judgment the Applicant’s application is clearly unfounded. The Respondent had taken the Applicant’s case at its height and given it anxious scrutiny. Having undertaken a careful review for myself, I conclude that the Applicant’s case is one which no First-tier Tribunal Judge could possibly allow.
149. I am conscious that the Applicant will continue to consider that he has been left with no opportunity, as he states, to clear his name. I must and do remind myself that the facts of the matter before me are highly relevant and stark as I have identified at the outset. The effect of the timing of an individual case, alongside procedure, statute and caselaw does occasionally mean that litigants are denied the remedy that they seek. My task requires that I must not permit my sympathy for the Applicant to make me fall into legal error. In my judgment, the Applicant’s arguments, previously described as ingenious and with which I agree, would lead to just that. In my judgment the Respondent is correct that the Applicant’s application merely seeks to get entry clearance via a second bite of the cherry. That is impermissible, just as the Respondent unarguably lawfully states.
150. Therefore, having considered the House of Lords decision in Razgar and then answering the 2 issued raised before me, I conclude as follows:
“Issue 1: Is the Applicant’s human rights claim one that could lawfully be certified? Yes.
Issue 2: Did the Respondent fail to consider the exercise of discretion in a lawful manner?” No.
151. Considering section 31(2A) of the Senior Courts Act 1981 (which by virtue of section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 applies to the Upper Tribunal) even if discretion ought to have considered, the highly likely outcome would not have been substantially different if the conduct complained of had not occurred.
152. Accordingly, I refuse Judicial Review on Ground 1 and I refuse permission to apply for Judicial Review on Ground 2.
153. It is therefore not necessary for me to declare the Respondent’s policy/guidance as being unlawful because it is not unlawful.
154. I invite the parties to agree a form of order and consequential matters, including costs and to send them to me for my approval.
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Postscript
Following judgment having been provided to the parties in draft, I accede to the Applicant’s request that he have until 4pm on 11 February 2026 to file and serve an application for permission to appeal, if so advised.
I also grant the Respondent permission to file and serve any amendments to the Applicant’s draft order and to send them to me by 4pm on 6 February 2026 after which time I shall make the orders provided for in the Applicant’s draft order dated 4 February 2026.