Tribunal decisions

The decision

Case No: JR-2025-LON-000622

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

4th December 2025
Before:

UPPER TRIBUNAL JUDGE HOFFMAN

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Between:

THE KING
on the application of
SYEDA AEYSHA SIDDIKA
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Gajjar
(instructed by Liberty Legal Solicitors), for the applicant

Mr M Biggs
(instructed by the Government Legal Department) for the respondent

Hearing date: 27th October 2025

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J U D G M E N T

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Judge Hoffman:

Introduction

1. The applicant, a citizen of Bangladesh, seeks judicial review of the respondent’s decision dated 28 November 2024. That decision refused her human rights claim, made on 25 October 2023, and certified it as clearly unfounded under s.94(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The certificate deprives the applicant of the opportunity to appeal the respondent’s decision to the First-tier Tribunal (Immigration and Asylum Chamber).

2. For the reasons set out below, the application for judicial review succeeds.

Background

3. The applicant was born in Bangladesh on 10 February 1966. She married and had four children: Ms Musst Bilkis Shahi, Mr Shah Foygol Mostofa, Mr Shah Mohammad Fakhrul Mostofah and Mr Shah Muhammad Nural Mostafa, all of whom are now adults.

4. On dates that are unclear from the documents before me, Musst, Shah Mohammad and Shah Muhammad moved to the UK. (Musst is now a British citizen and Shah Mohammad and Shah Muhammad1 have been granted limited leave to remain in 2022 and 2023 respectively.)

5. The applicant remained living in Bangladesh with her husband, who died on 31 January 2014, and, thereafter, her eldest son Shah Foygol Mostafa and his wife in the family home.

6. The applicant was refused a visa to visit the UK in November 2014 and December 2021. On 23 February 2022, she was successful in applying for a visit visa. Thereafter, she entered the UK on 30 March 2022 on a visa valid until 23 August 2022. However, on expiry of that visa the applicant failed to return to Bangladesh and she remained in the country unlawfully.

7. According to the applicant, Shah Foygol Mostofa left Bangladesh on 13 December 2022 and travelled to the UK, although it is unclear on what basis. It is asserted that he has been in Portugal since 15 October 2023, although, again, his immigration status there is unclear from the material before me. As at the date of the decision under challenge, the daughter-in-law remained in Bangladesh although it was asserted at the hearing that she is now living in Portugal.

8. On 12 October 2023, immigration officers encountered the applicant at a residential address and served her with a notice of liability to removal as an overstayer. Following that notice, on 25 October 2023 she submitted an application for leave to remain on human rights grounds. While the application form specified that she was applying for leave on private life grounds, an accompanying covering letter prepared by her solicitors explained that she was also applying on Article 8 ECHR family life grounds and Article 3 ECHR medical grounds. That letter asserted that:

a. The applicant suffered from “anxiety, chest pain, demotivation and excessive worries related to her family” and she did not want to return to Bangladesh “due to a lack of caretakers as all her children are residing in the UK and in other country [sic].”
b. She “reported long-standing sleeping problems, nightmares and difficulty relaxing.”
c. She had a medical history of diabetes and gastritis and had been taking medication for 12 years.
d. She was residing with her son Shah Mohammad Fakhrul Mostofah in the UK but occasionally she stayed with her other children. The family had expressed a willingness to take full responsibility for the applicant’s care.
e. She was “suffering from low mood, adjustment disorder with symptoms of depression due to the uncertainty of her life and immigration status” and was taking medication for this.
f. She did not have significant ties to Bangladesh.
g. She would not have access to adequate medical treatment in Bangladesh and this “might lead to her mental health being deteriorated [sic].”
h. She had “made extremely good progress in the UK” and had spent almost two years in the country with her children while, conversely, she had no family in Bangladesh.
i. She enjoyed “strong family and private life” with her children and grandchildren in the UK and was “financially and emotionally supported” by them.
j. She had made friends in the UK and was respected. She wanted “to be part of the UK community” and was willing to work “and pay tax regularly”.

The respondent’s decision

9. In her decision dated 28 November 2024, the respondent refused the applicant leave to remain. She found that the applicant did not meet the requirements for leave under the Immigration Rules (“the Rules”) on family life grounds because she did not have a partner, parent or dependent child in the UK. The respondent also found that the applicant did not meet the requirements under the Rules for leave on private life grounds. According to the respondent, there were no very significant obstacles to the applicant re-establishing her private life in Bangladesh because she had lived there until the age of 56 and would “have retained knowledge of the life, language and culture” of the country.

10. The respondent then proceeded to consider whether there were any exceptional circumstances to the case that would entitle the applicant to a grant of leave to remain outside of the Rules on human rights grounds. She concluded that there were none. While it was noted that the applicant claimed to enjoy family life in the UK with her adult children and grandchildren, the respondent said that she had “not made an application as ‘adult dependent relative’ and as such cannot be considered under those rules.” The respondent stated, somewhat oddly, that “[t]he family life you claim to enjoy with your adult children and grandchildren does not constitute family life in the application you have made”. The respondent found that the relationships the applicant had developed with her family in the UK were “not solely reliant on [her] presence in the UK” and that they could “be maintained from [her] home nation.” To the extent that the applicant claimed to have established a private life in the UK, the respondent said that she had done so while her immigration status was precarious and she therefore had no expectation that any relationships she had developed would be able to continue uninterrupted. The respondent noted that the applicant owned a house in Bangladesh and she decided that the applicant could be expected to return there and, if necessary, find employment. She therefore found that the applicant’s removal would not amount to a disproportionate interference with her rights under Article 8.

11. Regarding the applicant’s medical claim, the respondent noted that the applicant claimed to suffer from anxiety and depressive disorder and diabetes. However, she said that the evidence before her clearly demonstrated that the applicant had received treatment for her medical conditions when she lived in Bangladesh and she could be expected to access treatment again on return. It was not accepted that the applicant’s conditions met the high threshold required to engage Article 3.

12. The respondent then went on to certify the human rights claim under s.94(1) of the 2002 Act. I set this out in full:

“Your human rights claim is considered to be one which is bound to fail. To reach this decision, consideration was paid to the decision of the Court of Appeal in FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605.

You have not told us about a partner in the UK, therefore you do not meet the eligibility requirements of the family life Rules under Appendix FM. You are 58 years old, claim to have entered the UK on 30 March 2022 and have failed to provide any satisfactory evidence there would be very significant obstacles to your re-integration into Bangladesh and therefore you fail to meet the eligibility requirements of Appendix Private Life. You have also failed to provide satisfactory evidence [that] refusal of your application would have unjustifiably harsh consequences for you or a family member therefore we do not accept there are any exceptional circumstances to your claim.

For these reasons it is considered that your claim cannot 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 your removal from the UK would be unlawful under section 6 of the Human Rights Act 1998 is wholly lacking in substance and any appeal would be bound to fail.” (Bold as in the original)

The application for judicial review

13. The applicant filed her application for permission to apply for judicial review on 23 April 2025. She raised three grounds of claim:

▪ Ground 1: The respondent unlawfully and irrationally failed to adequately consider her circumstances under the private life rules and Article 8.

▪ Ground 2: The respondent’s reasons for certifying the decision are inadequate.

▪ Ground 3: The decision to certify the decision is irrational and unlawful.

14. Permission was granted on all grounds by Upper Tribunal Judge Kamara following a hearing on 10 June 2025 but the applicant failed to pay the continuation fee and her claim was subsequently struck out. However, in an order sealed on 1 July 2025, a Tribunal lawyer granted the applicant’s application for reinstatement.

The legal framework

15. Article 8 of the European Convention on Human Rights says as follows:

“Article 8 – Right to respect for private and family life

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 well-being 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.”

16. Section 94 of the 2002 Act provides, so far as is relevant:

“(1) The Secretary of State may certify a protection claim or human rights claim as clearly unfounded.”

17. In ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 W.L.R 348, Lord Carswell reaffirmed the opinion of the House of Lords in R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920 that because of the “draconian nature” of the certification power, “that in order to justify its exercise the claim must be so clearly lacking in substance that it is bound to fail”: see [58]. He went on: “It is necessary accordingly that the matter must receive the most anxious scrutiny before a certificate is issued”: ibid; see also Lord Phillips at [21]).

18. The principles applicable when a court or tribunal judicially reviews a decision to certify a claim were drawn together by the Court of Appeal in R (FR) & Anor (Albania) v Secretary of State for the Home Department [2016] EWCA Civ 605, [2016] Imm AR 1341. While focussed on a previous iteration of the certification power, the principles remain applicable to the current version of s.94.

19. The Court of Appeal reiterated in FR that:

a. The respondent has a certain “gate-keeping” or “screening” function in respect of s.94 (FR at [62]).
b. Section 94 certification decisions are subject to Wednesbury review (FR at [61]-[62] and [100]).
c. In reviewing a s.94 certificate, the Tribunal should ensure that the decision-maker has acknowledged that certification requires a separate evaluation to that required in respect of their assessment of the merits of the claim, and that in determining whether that separate consideration has been properly and reasonably conducted the tribunal “will be concerned with the substantive integrity of the analysis displayed in the decision letter …” (FR at [99]-[100]).
d. When considering whether to make a s.94 certificate, decision-makers should consider whether the claim is capable of being accepted, and if it is, the claim should be taken at its highest.

20. In SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951, [2019] Imm AR 1288, the Court of Appeal explained at [25]:

“The correct approach when considering a claim at its highest following FR (Albania) is to consider the claim that has in fact been put forward by the appellant including all the information she has provided. If there is material provided by the appellant, including her answers during interview, which is capable of being objectively well founded and sufficient to establish a claim but which is not accepted by the Secretary of State, then an opportunity to have that evidence tested before a judge of the First-tier Tribunal should be provided i.e. certification by the Secretary of State would not be appropriate.”(Underlining added)

The hearing

21. Mr Gajjar, on behalf of the applicant, submitted that the respondent’s decision is legally flawed because it fails to conduct a proper evaluative assessment of the applicant’s circumstances under Article 8 and the Rules. He argued that the decision wrongly concluded there was no family life, relying on the type of application rather than a fact-sensitive inquiry, contrary to authorities including Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 and Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886. He placed emphasis on the applicant’s age, widowhood, health issues (including anxiety, depression and diabetes), and the practical and emotional support she receives from her children and grandchildren in the UK, which, he said, cannot be replicated in Bangladesh because she no longer has family there. Mr Gajjar asserted that the decision overlooked key evidence, including medical letters and family statements, and misapplied the very significant obstacles test under paragraph PL 5.1(b) of Appendix Private Life to the Rules by introducing irrelevant considerations. Mr Gajjar also submitted that the respondent failed to have proper regard to the Country Policy Information Note (CPIN) reports, arguing that stigma and inadequate mental health facilities in Bangladesh, combined with the applicant’s lack of family support there, creates serious obstacles to reintegration. Mr Gajjar maintained that the claim is not “bound to fail” and certification under s.94 was irrational.

22. Mr Biggs, representing the respondent, maintained that the certification decision was lawful and that the applicant’s claim is clearly unfounded under s.94. Relying on ZT (Kosovo), FR (Albania) and SP (Albania), Mr Biggs argued that the test is binary: either the applicant’s claim could or could not succeed on any legitimate view. Even taking the evidence at its highest, the applicant could not meet the high threshold of very significant obstacles under paragraph PL 5.1 or establish family life under Article 8, as defined in Kumari v the Netherlands Application 440151/20, he said. Mr Biggs argued that the applicant spent 56 years in Bangladesh, owns property and a farming business there, previously accessed medical treatment for anxiety and diabetes, and could continue to do so on return. The medical evidence was, he said, speculative and insufficient to demonstrate incapacity or dependency, and the support letters were vague and added little to the claim. Mr Biggs said that an immigration judge would have to take into account the precarious immigration status and proportionality considerations under s.117B of the 2002 Act, and that any alleged flaws in the decision-making process are immaterial because the claim would inevitably fail. He submitted that the decision applied the correct principles, and certification was the only rational outcome.

Discussion

Ground 1: Irrational failure to adequately consider the applicant’s circumstances under the private life rules and Article 8 ECHR

23. This ground raises a direct challenge to the lawfulness of the respondent’s consideration of the substance of her human rights claim rather than the decision to certify it as clearly unfounded.

Private life

24. The applicant raises two main complaints in respect of the respondent’s consideration of her private life. First, she submits that the respondent erred by taking into account that she had accrued her private life while her immigration status was precarious when considering whether there were any very significant obstacles to her reintegrating on return to Bangladesh under paragraph PL 5.1(b) of Appendix Private Life of the Rules.

25. Secondly, she asserts that when considering her private life under Appendix Private Life, the respondent failed to conduct a “broad evaluative judgement” of her ability to reintegrate on return to Bangladesh (as per Sales LJ in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 at [14]; and Whipple LJ in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 at [25]). In particular, she argues that when considering the very significant obstacles to integration under paragraph PL 5.1 of Appendix Private Life, the respondent did not take into account her medical circumstances, her ability to operate as a widow without help and support, or how she would cope without the type and level of emotional support she receives from her family in the UK. The applicant claims that there was no engagement with the evidence, including letters written by her family.

26. On the first point, the applicant is correct that paragraph PL 5.1(b) of Appendix Private Life to the Rules only requires the decision-maker to be satisfied that there would be very significant obstacles to the applicant’s integration into the country to which they would be removed2. It does not require the decision-maker to balance that against the circumstances in which they have developed their private life in the UK. However, Mr Biggs argued that the facts of the applicant’s case came nowhere near to meeting the very significant obstacles test and the reasons given in the decision were sufficient.

27. The respondent’s reasons for concluding that there were no very significant obstacles appear in the paragraph immediately preceding her reference to the applicant’s precarious immigration status. She noted that the applicant had lived in Bangladesh for the first 56 years of her life and had “retained knowledge of the life, language and culture” of that country. Those are valid considerations. However, I accept the applicant’s submission that the respondent failed to take into account other material factors, namely her health, her asserted lack of family ties in Bangladesh, and the practical and emotional support she claims to receive from her children in the United Kingdom. These were important matters expressly raised in the application and supporting evidence, and they required proper consideration.

28. When it comes to the respondent’s consideration of the applicant’s private life outside of the Rules, the decision demonstrates more detailed reasoning than the consideration under paragraph PL 5.1. The respondent took into account that the applicant had developed her private life at a time when her immigration status was precarious; that there was nothing preventing her family in the UK from continuing to financially support her in Bangladesh; that her relationships with her family in the UK were not solely reliant on her presence in this country; that she would not require assistance with accommodation and employment on return, having previously been self-employed as a farmer and having expressed a desire to work in the UK; and that she could obtain medical treatment in Bangladesh as she had done before.

29. Therefore, taking a holistic view of the respondent’s consideration of the applicant’s private life both under and outside of the Rules, on first blush it seems unlikely that the respondent would have concluded that there were very significant obstacles to reintegration. However, the decision contained no reference to the letter from her son, Shah Foygol Mostofa, confirming that he no longer resides in Bangladesh, nor to the letter from his wife stating that she is unable to care for the applicant—both matters of clear significance. Mr Biggs acknowledged that was the case, but he sought to argue the respondent had suggested that the support the applicant received in the UK could continue from abroad and that nowhere in the applicant’s representations did it say that she required emotional support. However, while the covering letter to the application did not expressly refer to emotional support, it is clear from reading what is said on the fifth page in particular, which asserts that the applicant would be “lonely” if returned to Bangladesh without her family and that she would be depressed without them, that this is what the applicant was trying to convey. I therefore find that the respondent failed to give anxious scrutiny to the applicant’s private life outside of the Rules.

Family life

30. I also find that the decision does not adequately engage with whether the applicant enjoys family life in the UK with her adult children and grandchildren for the purposes of Article 8(1) outside of the Rules.

31. The respondent’s reasons for concluding that the applicant does not enjoy family life in the UK are notably brief. The decision letter states: “The family life you claim to enjoy with your adult children and grandchildren does not constitute family life in the application you have made”. This curious wording suggests that the decision-maker erroneously assumed that the existence of family life depends on the type of application for leave to remain, rather than on a fact-sensitive assessment of the nature and quality of the relationships. The letter then adds: “It is considered that the relationships with your settled family are not solely reliant on your presence in the UK and can be maintained from your home nation.” The purpose of this statement is unclear. It appears to address proportionality under Article 8(2), yet if the respondent had concluded that Article 8(1) was not engaged, any consideration of proportionality would have been unnecessary—unless this was intended as an alternative argument, namely that even if Article 8(1) were engaged, removal would nonetheless be proportionate.

32. As Mr Gajjar submits, when considering whether family life does exist, there is no consideration of the applicant’s health issues and the emotional support she says she receives from her family nor does the respondent consider whether these go beyond normal emotional ties for the purposes of Kugathas.

33. Both parties referred the Tribunal to the case of Mobeen at [45] to [46]:

“45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46. However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.”

34. Mr Gajjar accepted that something more than emotional ties was required to show that Article 8(1) was engaged, but he submitted that the respondent had failed to consider the substance of the relationships, in particular that the applicant co-habited with her son and his family and the cultural and social traditions prevalent in Bangladesh, where adult children would look after aging parents. He further argued that the practical support that the applicant’s adult children provided to her in the light of her various health issues was a powerful factor in favour of family life.

35. Mr Biggs argued that the applicant failed to provide evidence to show that she enjoyed Article 8 family life with her adult children in the UK in the light of Mobeen and the decision of the European Court of Human Rights (ECtHR) in Kumari. In particular, Mr Biggs relied upon [39] of Kumari to argue that even in cases where an applicant or a relative suffered from a serious medical condition and required a degree of support, this had proved insufficient to engage Article 8(1):

“39. Conversely, in cases concerning the following medical conditions the Court refused to accept that the state of health of the applicants or their relatives was serious enough or, even if sufficiently serious, was sufficient in itself to warrant a finding of the existence of dependency and thus of “family life” within the meaning of Article 8 of the Convention: diabetes, an (undefined) heart condition and chronic obstructive pulmonary disease, and ulcerative colitis requiring treatment, none of which conditions were entirely incapacitating (see A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010); asthma (see Konstatinov v. the Netherlands, no. 16351/03, 26 April 2007); and paranoid schizophrenia which, while very serious, did not incapacitate the applicant to the extent that he was compelled to rely on his family’s care and support in his daily life (see Savran, cited above, §§ 177-78).”

He further argued that in order to engage Article 8(1), an applicant would have to prove that they required “constant” care and support from a family member: see [38] of Kumari. That was, he said, in stark contrast to the care the applicant in the present case required.

36. The applicant submitted various forms of medical evidence with her application. This included her medical records from both the UK and Bangladesh. Central to this evidence was a letter from the applicant’s GP dated 27 November 2023 [HB/85], which recorded that the applicant

“is a known Diabetic (diagnosed in Bangladesh). She is sometimes symptomatic with lethargy, excess thirst and dizzy spells due to high blood sugar levels despite medication. She relies on the support of her children to monitor her sugar levels and help her to liaise with the nursing and medical team for ongoing management as she does not speak English. She has also been under investigation for Anaemia and changes to her bowel habit and is awaiting Gastroenterology review (referred in April 2023). She has also reported longstanding back and upper limb pains which has been managed with medication and Physiotherapy in the community.

She was seen last month by my colleague reporting longstanding Anxiety and Low Mood and has struggled living alone in Bangladesh while her children have all emigrated to the UK. She has struggled with the loss of her husband and one of her younger children years ago and struggles with poor sleep and ongoing anxieties relating to family dynamics. She was started on Mirtazapine last month but was reviewed 2 weeks ago and did not continue this medication after a few days due to side effects so was switched to an alternative medication.

From a review of her notes, I can see that it may be beneficial for her to remain in the UK to continue to have the support of her children for her ongoing chronic disease management and in view of her lack of family support in Bangladesh. I ask you take these issues into account when considering her application to remain.”

37. It is the respondent’s position that none of the medical evidence is sufficient to convince an immigration judge to allow the applicant’s appeal on human rights grounds. First, Mr Biggs submitted that the applicant’s UK medical notes showed that she had been diagnosed as suffering from anxiety in Bangladesh and had been prescribed medication for it there. There was, he said, no evidence she had been prescribed with any medication for depression. Second, a psychotherapist referral form dated 30 October 2023 recorded that while the applicant claims to suffer from anxiety, chest pain, demotivation and excessive worries about her family, she also “worries about her adaptation” to the UK (it also says that “she didn’t return to Bangladesh because there is no one remaining to look after her”). Mr Biggs said that this showed the applicant had struggled to adapt to life in the UK, not Bangladesh, and that appeared to be a contributing factor to her mental health issues. Third, Mr Biggs asked the Tribunal to note that the applicant had not claimed that any of the treatment she receives in the UK would be unavailable to her in Bangladesh. In fact, the evidence disclosed by the applicant showed that she had received medical treatment in Bangladesh, including for diabetes and anxiety. Fourth, Mr Biggs submitted that the GP’s letter had been advanced as the key medical evidence. However, he said, its contents came nowhere near to establishing significant obstacles, let alone very significant obstacles, to the applicant’s return to Bangladesh. According to Mr Biggs, the GP’s claim that it “may” be beneficial for the applicant to remain in the UK with her family was the highpoint of her evidence. Mr Biggs therefore submitted that the evidence failed to establish that the applicant required the “constant” care of her family and that the hypothetical judge hearing the applicant’s appeal, properly directing themselves, would be bound to find that Article 8(1) was not engaged.

38. Mr Gajjar submitted that the ECtHR in Kumari was merely giving examples at [38] and [39] of circumstances where medical needs can or cannot be sufficient to make out dependency in Article 8 cases. He is right; but the examples clearly point in a single direction: that a high threshold must be met before an applicant can show that the care they require as a result of a health condition means that they enjoy family life with an adult child. However, Mr Gajjar also argued that it would be a matter for a First-tier Tribunal judge to decide whether the care the applicant needs meets the required threshold to demonstrate dependency, taking into account Kumari as well as the domestic caselaw such as Kamara. In doing so, the judge would also have to have regard to other factors, including financial support and cohabitation and, he asserted, it could not be said that any judge properly directing themselves would be bound to find against the applicant on this point. I am satisfied that is right. While Mr Biggs argues that Kumari is clear in showing that anything that falls short of “constant” care is incapable of demonstrating dependency for the purposes of Article 8(1), at present, the domestic authorities do not go that far. The fact that this question has very recently been argued before the Court of Appeal in IA & Others v Secretary of State for the Home Department (CA 2025 000713) shows that, for the time being at least, this is not settled law.

39. I am also satisfied that Mr Biggs’ reliance on Kumari, while something that the hypothetical judge hearing the appeal would have to take into account, amounts to ex post facto reasoning when it comes to the respondent’s decision, both in respect of the substantive consideration of Article 8(1) and certification. The decision-maker did not rely on Kumari (which post-dated the decision by a matter of days) or otherwise seek to argue that the lack of need for constant care meant the Article 8(1) threshold was not met. Instead, the sole reason given by the respondent was that the applicant did not enjoy family life “in the application you have made.” Ultimately, the respondent’s attempts to rely on Kumari for the purposes of Ground 1 was an attempt to deflect attention away from the clear shortcomings in her consideration of the applicant’s family life claim, which does not engage with any of her submissions and evidence on this point.

Conclusion on Ground 1

40. I therefore find that the respondent failed to carry out a broad evaluative assessment of the applicant’s ability to reintegrate in Bangladesh when considering the very significant obstacles test under the Rules and her private life outside of the Rules; and she also failed to give anxious scrutiny to the applicant’s submissions and evidence when considering her family life claim.

41. For these reasons, Ground 1 is made out.

Grounds 2 and 3: The challenge to certification

42. In the light of my findings on Ground 1, the lawfulness of the certification decision might appear clear-cut: the respondent’s failure to apply anxious scrutiny to the applicant’s claim would inevitably have affected her consideration under s.94(1). As Mr Gajjar submitted, the respondent could not rationally certify the claim without first properly assessing the relevant aspects of the applicant’s case. Nevertheless, having myself applied anxious scrutiny to the material before the respondent, I set out below my views on whether this is a case that could properly be regarded as bound to fail on appeal, not least because it is necessary to address the respondent’s reliance on s.31(2A) of the Senior Courts Act 1981 (“the 1981 Act”).

43. When considering whether to certify a claim, the respondent must apply anxious scrutiny to the applicant’s case and, having done so, determine whether it is so clearly lacking in substance that it is bound to fail on appeal: see ZT (Kosovo) at [58]. Mr Biggs described the test as a binary one: either the claim is clearly unfounded or it is not: see ZT (Kosovo) at [22]; and R (L) at [56]. A challenge to a certification decision is framed as a rationality review; however, as Lord Phillips observed in ZT (Kosovo) at [21] and [23], there is “no way that a court can consider whether [the respondent’s] conclusion was rational other than by asking itself the same question that she has considered.”

44. The applicant’s Article 3 medical claim was undoubtedly hopeless and it is therefore unsurprising that the applicant advanced no challenge to the respondent’s consideration of it. The applicant’s medical conditions as set out in the evidence provided to the respondent came nowhere near to meeting the high threshold set out in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. I am satisfied that any appeal brought by the applicant on Article 3 grounds would be bound to fail.

45. With regards to the applicant’s private life claim, a hypothetical judge properly directing themselves on the law would have to take into account that the applicant’s private life in the UK was developed at a time when her immigration status was either precarious or she was here unlawfully and accordingly attach little weight to it: see s.117B(4)(a) and (5) of the 2002 Act. Furthermore, the evidence of the applicant’s private life is slight. If anything, the medical evidence suggests that she has struggled to adapt to life in the UK and that this has had an adverse effect on her mental health. She also speaks no English and would likely continue to rely on publicly funded NHS treatment, which would be further factors weighing against her in the proportionality assessment under s.117B(2) and (3).

46. The fact that she spent most of her life living in Bangladesh, owns a house there (currently protected by a security guard), was able to derive an income from her farm, and had access to medical treatment are powerful factors against there being very significant obstacles to integration. The evidence that the applicant does rely on care, constant or otherwise, from her children in the UK is not objectively very strong. As Mr Biggs submits, the highpoint of the evidence is the GP letter which says that it “may” be beneficial for the applicant to be permitted to remain in the UK with her family. I am satisfied that key to any appeal would instead be the weight the hypothetical judge would place on the fact that, according to the applicant, her last remaining son in Bangladesh has since moved to Portugal and that his wife is unable to care for her. But, in my view, while that might be an obstacle that poses some challenges, it is not a very significant one. I am therefore satisfied that any private life appeal is also bound to fail.

47. That leaves the applicant’s family life claim. As explained earlier in this judgment, many of the arguments that Mr Biggs made in respect of the deficiencies in the respondent’s consideration of the applicant’s family life claim were, in actuality, arguments in support of the respondent’s position on the correctness of certification. I do not therefore repeat his submissions here or my findings in response to them. As the domestic law currently stands, Kumari may not be as determinative in any appeal as the respondent hopes. The care the applicant claims to require from her family in the UK is just one factor the judge would have to consider, as well as, amongst other things, the financial support, which is accepted by the respondent. Furthermore, the evidence in relation to the applicant’s claimed lack of family to return to in Bangladesh would likely be pivotal in any appeal. It may well be difficult for the applicant to succeed on this ground of appeal. However, I am satisfied that it cannot rationally be said that any such appeal would be bound to fail.

48. For these reasons, the applicant also succeeds on Grounds 2 and 3.

Whether the errors made no difference to the outcome of the application

49. Mr Biggs sought to argue that even if the Tribunal was satisfied that there were errors in the consideration of the applicant’s Article 8 claim, it was inevitable on the evidence that the outcome would have been the same for the reasons given in support of the certification decision. He therefore invited the Tribunal to refuse relief under s.31(2A) of the 1981 Act. The test for applying s.31(2A) is that it is highly likely that the outcome would not have been substantially different had the conduct complained of not occurred.

50. Had this claim focussed on private life only then, for the same reasons given at [45] and [46] above, I would have been satisfied that s.31(2A) could be applied. However, there remains the issue of the applicant’s family life claim.

51. In R (Bradbury) v Brecon Beacons National Park Authority [2025] 4 WLR 58; [2025] EWCA Civ 489, at [71], Lord Justice Lewis said:

“71 In relation to section 31(2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decisionmaker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31(2A) are unlikely to be satisfied.”

52. In this case, the respondent’s inadequate reasoning on the family life claim prevents me from determining what conclusion she would have reached had the applicant’s submissions and evidence been properly considered. Accordingly, I cannot find that it is highly likely the outcome would have been the same had the evidence been assessed with appropriate reasoning, both as to the engagement of Article 8(1) and the question of proportionality under Article 8(2). Moreover, for the reasons set out at [47] above, I am not satisfied that the family life claim is bound to fail on appeal. For these reasons, I conclude that s.31(2A) cannot be applied.

Conclusion

53. The applicant therefore succeeds on all three grounds.

Postscript

54. The judgment in this case was formally handed down on 4 December 2025, which post-dates the Court of Appeal’s judgment in IA & Others v Secretary of State for the Home Department [2025] EWCA Civ 1516. However, an embargoed version of this judgment was circulated to the parties on 25 November 2025, the day before the Court of Appeal’s decision was promulgated. The reference to IA in [38] should therefore be understood in that context.

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