JR-2025-LON-001318
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The decision
JR-2025-LON-001318
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
SAQIB MEHMOOB
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge McWilliam
HAVING considered all documents lodged and having heard Mr L Youssefian of counsel, instructed by M & K solicitors, for the applicant and Mr M Howarth, of counsel, instructed by the GLD, for the respondent at a hearing on 7 July 2026
IT IS ORDERED THAT:
1. The application for judicial review is granted for the reasons in the attached judgment.
2. The respondent’s decision dated 6 July 2024 refusing the applicant's application for leave to remain as a dependant under the Graduate route, maintained on administrative review dated 14 February 2025, is quashed.
3. The parties were ordered to apply for any consequential orders by 4pm on 12 August 2026. The applicant sought (1) a direction that the respondent permits a period of 60 days from the date of quashing the decision for the applicant to make any application and (2) a direction that any such application be considered in line with the immigration rules in force at the time of the application. The applicant no longer seeks (2).
4. The respondent has filed a note objecting to the draft consequential order proposed by the applicant. The applicant objects to the respondent’s reliance on the note. The applicant contends that the respondent does not have standing to object because of the deadline for applications for a consequential order and the time has passed. However, I do not accept this because the respondent is not seeking to make a consequential order, she is objecting to the terms of the applicant’s proposed consequential order.
5. The respondent opposes the consequential order on the basis that it is not an order consequential to the judgement, but a substantive direction governing the future exercise of the respondent’s discretion on a revived application by imposing a timetable that would not otherwise apply as a matter of ordinary principle following a quashing order. I refuse to make the order as proposed by the applicant. In my view the relief sort falls outside the proper scope of a consequential order.
6. The respondent shall pay the applicant’s reasonable costs, such costs to be assessed on a standard basis if not agreed.
7. Permission to appeal is refused for the reasons I have given in my separate order.
Signed: Joanna McWilliam
Upper Tribunal Judge McWilliam
Dated: 18 August 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 20/08/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
JR- 2025-LON-001318
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for permission to appeal
The King on the application of
SAQIB MEHBOOB
Applicant
And
Secretary of State for the Home Department
Respondent
NOTIFICATION of the Judge’s decision (UT Rule 45)
UPON the Upper Tribunal specifying in compliance with s13(11) of the Tribunals, Courts and Enforcement Act 2007 that the relevant appellate court is the Court of Appeal in England and Wales
AND UPON the Upper Tribunal having considered all the documents lodged,
Order by Upper Tribunal Judge McWilliam:
The application for permission to appeal is refused
Reasons
(1) I have taken into account the grounds and the submissions in support (a seventeen-page document).
(2) Ground 1: What is said at [22] of the decision is consistent with the approach endorsed in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [29]: “A public authority’s published policy is a relevant consideration in the exercise of a discretion… If it is to depart from the policy in a particular case the authority must have good reason for doing so; and such reason must be spelled out clearly in its decision”.
(3) Ground 2: This ground ignores that the policy draws a distinction between first and subsequent applications. I found that the policy had not been applied. The reason, however, was not because of the use of the expression “genuine and subsisting” in the decision. Where an applicant has already proven the genuineness of their relationship in a successful application, in a subsequent application based on the same relationship the decision maker normally only needs to be satisfied that the relationship is subsisting unless further information comes to light that leads the decision maker to suspect that the relationship is not genuine. In this situation the decision maker should reconsider whether the relationship is genuine. The problem with the respondent’s position was the lack of clarity as to whether the issue was the subsistence and/ or the genuineness of the relationship. Mr Howarth was not consistent on this point.
(4) Ground 3: It was not until during the hearing that the respondent said that “further information” had come to light with reference to the policy. What can amount to further information should not be narrowly defined; however, it is reasonable to expect it to be properly identified.
(5) Ground 4: Section 31(2A) of the Senior Courts Act 1981 was properly considered in accordance with case law at [25] and [26].
(6) The first appeal permission test is not satisfied. There is no real prospect of success or some other compelling reason to grant permission.
Signed: Joanna McWilliam
Upper Tribunal Judge McWilliam
Dated: 18 August 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 20/08/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
1. A party who has been refused permission to appeal to the Court of Appeal by the Upper Tribunal may apply to that court for permission.
2. Where an application for permission to bring judicial review proceedings has been determined by the Upper Tribunal on the papers and recorded as being totally without merit and permission to appeal has been refused by the Upper Tribunal, any application to the Court of Appeal for permission to appeal must be made to that Court within 7 days of service of the decision of the Upper Tribunal refusing permission to appeal (Civil Procedure Rules 52.9(3)(b)).
3. In any other case, but subject to paragraph 4 below, the application for permission to appeal must be filed in the Court of Appeal within 28 days of the date on which notice of the Upper Tribunal’s decision on permission to appeal to the Court of Appeal is sent to the appellant (CPR Practice Direction 52D 3.3).
4. If the application to the Upper Tribunal for permission to appeal to the Court of Appeal was made out of time and the Upper Tribunal refused to grant an extension of time, the time limit for filing an Appellant’s Notice in the Court of Appeal is 21 days from the date of issue of the substantive decision: (CPR 52.12(2)(b)). Such a person is therefore likely to be out of time for appealing to the Court of Appeal and should apply to the Court of Appeal for an extension of time.
Case No: JR-2025-LON-001318
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
18 August 2026
Before:
UPPER TRIBUNAL JUDGE McWILLIAM
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Between:
THE KING
on the application of
Saqib Mehboob
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr L Youssefian, instructed by M & K Solicitors, for the Applicant
Mr M Howarth, instructed by the Government Legal Department) for the Respondent
Hearing date: 7 July 2026
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J U D G M E N T
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Judge McWilliam:
Introduction
1. The Applicant is a Pakistani national. He was born on 12 October 1994. He married Ms Kashmala Tariq Daud, also a Pakistani national, on 3 July 2022 in Pakistan.
2. The Applicant challenges the Respondent’s decision dated 6 July 2024 refusing his application for leave to remain as a dependant under the Graduate route, on the basis that he failed to establish a genuine and subsisting relationship with his wife, Ms Daud. The Respondent maintained that decision following administrative review (AR) on 14 February 2025.
The grounds of review
3. There are four grounds:
i) The Respondent misapplied paragraph RWP 6.2 of the Immigration Rules;
ii) The Respondent failed to take into account material considerations;
iii) The Respondent failed to apply her own published policy guidance;
iv) The Respondent acted irrationally in failing to accept the evidence provided as establishing a genuine and subsisting relationship.
The issues
4. The issue is narrow. It is whether the Respondent acted unlawfully in not being satisfied, on the evidence provided with the application and administrative review, that the Applicant had demonstrated a genuine and subsisting relationship within paragraph RWP 6.2 of Appendix Relationship with his partner, Ms Daud.
The background
5. On 15 August 2022, Ms Daud was granted entry clearance as a student, valid until 1 January 2024. In her application she declared that she was married to the Applicant. On 15 September 2022, the Applicant applied for entry clearance as a dependant on the basis of his marriage to Ms Daud. That application was granted on 18 October 2022, and the Applicant entered the United Kingdom on 31 October 2022.
6. Following correspondence and a minded-to-refuse letter, the Respondent issued a decision on 8 November 2023 cancelling the Applicant's permission to enter the United Kingdom with immediate effect under paragraph 9.7.3 of Part 9 of the Immigration Rules. The decision was based on an allegation that the marriage certificate submitted in support of the entry clearance application was not genuine. The Applicant commenced judicial review proceedings challenging that decision. The Respondent subsequently proposed to settle the claim, and a consent order was sealed on 19 April 2024. The terms included withdrawal of the 8 November 2023 decision, reinstatement of the Applicant's leave (which had been valid until 1 January 2024), and provision for the Applicant to make a fresh application as a dependant under the Graduate route within 28 days, which would be treated as in time.
7. On 26 April 2024, the Applicant submitted an application for leave to remain as the dependant of his spouse under the Graduate route. The Respondent wrote to the Applicant on 29 May 2024 and 12 June 2024 requesting evidence of a subsisting relationship with Ms Daud, including the tenancy agreement for the address at 11 Woodbridge Close, Luton. The Applicant provided a tenancy agreement in the names of Muhammad Aitezaz Tariq Chaudhary and Sumaira Akbar. He also provided energy bills addressed to Miss Kashmala Tariq and Muhammad Aitezaz Tariq Chaudhary, a water bill addressed to Ms S Akbar and Mr S Mehboob, a copy of the marriage certificate, photographs, a letter from Leagrave Surgery confirming that both the Applicant and Ms Daud were registered patients at that address, phone messages in a language other than English, bank statements in the individual names of the Applicant and Ms Daud respectively, and the Applicant's driving licence.
The decision of the Respondent dated 6 July 2024
8. The salient parts of the decision read as follows:
“You have not demonstrated that the relationship between you and Daud Kashmala Tariq is genuine and subsisting...
We wrote to you on 29 May 2024 and 12 June 2024 for you to provide evidence of a subsisting relationship with Daud Kashmala Tariq
We asked you to provide your tenancy agreement for your address of…… you provided this however the agreement is in the names of Muhammad Aitezaz Tariq Chaudhary & Sumaira Akbar. You have not explained why you or are not listed on the agreement.
You provided evidence from EDF Energy addressed to Miss Kashmala Tariq and Muhammad Aitezaz Tariq Chaudhary. As well as evidence from affinity water addressed to Ms S Akbar and Mr S Mehboob.
You also provided the following documents:
• a copy of your marriage certificate
• photos
• a letter from your GP confirming you and are both patients at Leagrave surgery
• phone messages you submitted which are not in English
• Barclays Bank statement in your name only
• Halifax Bank statement in name only
• your driving licence
The documents you have submitted as evidence are not sufficient evidence of a subsisting relationship
Due to this, I am not satisfied that the evidence you have demonstrated confirms that you are in a genuine and subsisting relationship with Daud Kashmala Tariq”
The Administrative Review
9. In the AR dated 14 February 2025 the Respondent accepted that the Applicant and Ms Daud lived at the same address but that the evidence did not establish that they are a couple and in a genuine and subsisting relationship. The following was said in the AR:
i. The points made in the application for AR had been carefully considered.
ii. The application was considered in accordance with the correct rules, policy, and guidance and correctly assessed against them.
iii. The Applicant fails to meet the requirements of the immigration rules.
iv. The caseworker wrote to the applicant on 29 May 2024 and 12 June 2024 advising him to provide further cohabitation evidence that he was still in a genuine and subsisting relationship with Ms Daud
v. The evidence confirmed that the Applicant and Ms Daud lived at the same address however it did not reflect this and none of the evidence confirmed that the Applicant and Ms Daud are in a genuine and subsisting relationship.
vi. There was no compelling evidence to confirm the Applicant's relationship is genuine and subsisting.
vii. In relation to evidential flexibility the Applicant was written to requesting further cohabitation evidence that he was still in a genuine and subsisting relationship. The caseworker correctly applied evidential flexibility
Legal Framework
The Senior Courts Act 1981
10. Section 31 (2A) of the 1981 Act, as inserted by the Criminal Justice and Courts Act 2015, provides that;
“The High Court-
(a) must refuse to grant relief on an application for judicial review …
(b) if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”
The Immigration Rules
11. Para GR 11.1 of Appendix Graduate, so far as relevant, states the following:
“Relationship requirement for dependent partner of a Graduate
GR 11.1. The applicant must show that the relationship meets the relationship requirements as specified in Appendix Relationship with Partner.”
12. Para RWP 6.2 of Appendix Relationship with Partner, so far as relevant, states the following:
“Genuine and subsisting relationship requirement
RWP 6.1. The applicant and their partner must have met in person.
RWP 6.2. The relationship between the applicant and their partner must be genuine and subsisting.”
Relationship with a Partner: Assessing the relationship with a partner based on the Immigration Rules: Appendix Relationship with Partner – Version 6.0”, published on 5 July 2024 (‘the policy guidance’).
13. Page 29 of the Guidance states:
“Subsisting relationship (second and subsequent applications with the same partner)
This section explains how to assess applications from an applicant who has been successful in their previous application on the basis of their relationship with their current partner.
You must consider if the relationship is subsisting.
Where an applicant has already proven the genuineness of their relationship in a successful application, where there is a subsequent application based on the same relationship, you normally only need to be satisfied the relationship is subsisting. This means that the relationship is current and continuing. You do not need to reconsider whether other relationship requirements are met, as this has already been accepted at previous successful application. You do not need to reconsider evidence already accepted in a previous application.
Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed, or if they have changed, they have done so in a way that is consistent with the relationship continuing. This usually involves cohabitation, shared financial responsibilities and shared common household responsibilities, however, there may be circumstances where a relationship is subsisting despite the partners living apart. […]”
Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed, or if they have changed, they have done so in a way that is consistent with the relationship continuing. This usually involves cohabitation, shared financial responsibilities and shared common household responsibilities, however, there may be circumstances where a relationship is subsisting despite the partners living apart.
If the applicant and their partner are not living together, especially if they have not lived together for a while or they have not lived together since the partner came to the UK, you need to be satisfied there is a reasonable explanation for them living apart. A reasonable explanation might include if they cannot live together temporarily due to work, or if one partner is living temporarily with a close family member to provide care. In such cases you will need to be satisfied the living apart is temporary and that despite it the relationship is still subsisting. You should also expect to see additional evidence of commitment such as shared financial responsibility or visits to be satisfied the relationship has not broken down.
However, if, after the first grant of permission, further information comes to light that leads you to suspect the relationship is not genuine, you should consider this again. You can request further evidence if it is needed to satisfy you that the relationship is genuine and you should write to the applicant to request this or follow guidance on Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff. If relevant, apply the guidance on Suitability: sham marriage or civil partnership.
Evidence of a subsisting relationship
Applicants for settlement will not be asked on the application form to provide documentary evidence of their relationship subsisting unless their circumstances have changed since their last application for permission.
You can assess that a relationship is subsisting through a combination of:
• information provided by the applicant on the application form
• direct checks with third parties
You will only need to see documentary evidence where you are not satisfied the relationship is subsisting, in such cases you should write to the applicant to request evidence.
Ground 3 - Submissions
14. Mr Youssefian drew a distinction between the consideration of genuine and subsisting. He said that applying the policy, in second or subsequent cases the decision maker will “normally” only need to be satisfied that the marriage is subsisting and that “generally” a relationship can be accepted as subsisting where the partners’ circumstances have not changed or have changed consistently with the relationship continuing.
15. Mr Howarth said that it was clear from the decision that the Respondent was looking at whether the relationship was subsisting and not whether the relationship was genuine. He said that it was abundantly clear that the decision maker was cognisant that this was a second application. He could not take me to any part of the decision or AR to support this. He said that it was the very embodiment of the Applicant’s grounds for AR that this was the Applicant’s second application. He referred to the part of the policy guidance which read as follows:
However, if, after the first grant of permission, further information comes to light that leads you to suspect the relationship is not genuine, you should consider this again.
16. Mr Howarth contended that ground 3 was “knocked out” by this part of the policy guidance. I asked him to identify the relevant further information. He said that it was the information in the Applicant’s application. He also said that it was the evidence that the Applicant submitted with the application and in response to the requests for further information. He said that the Respondent was allowed to consider whether the relationship was genuine on a second or further application.
17. Mr Howarth said that whether the issue is that the relationship is genuine or subsisting was not material because the policy guidance entitles the Respondent to ask for further evidence in either case. The Respondent is not barred from considering whether the relationship is genuine on a second or subsequent application.
Ground 3 – conclusions
18. The policy guidance draws a material distinction between first-time applications and second or subsequent based on the same relationship. The consequences of the policy guidance, about which there did not seem to be disagreement between the parties, are as follows:
(1) Where an applicant has already proven the genuineness of their relationship in a successful application, in a subsequent application based on the same relationship the decision maker normally only needs to be satisfied that the relationship is subsisting unless further information comes to light that leads the decision maker to suspect that the relationship is not genuine. In this situation the decision maker should reconsider whether the relationship is genuine.
(2) Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed or if they have changed that they have done so in a way that is consistent with the relationship continuing and that this usually involves cohabitation shared financial responsibilities and shared common household responsibilities.
(3) The policy guidance does not prevent the Respondent from requesting further evidence/ information relating to whether the relationship is subsisting and/or genuine and it does not remove the need for the decision maker to consider and evaluate that evidence.
(4) The policy does not create a presumption of success of second or subsequent applications. It cannot fetter the Respondent’s discretion, and it is open to the decision maker to depart from the policy guidance.
(5) Published policy guidance must be followed unless there is good reason not to do so. As Lord Wilson said in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at paragraph 29: “A public authority’s published policy is a relevant consideration in the exercise of a discretion… If it is to depart from the policy in a particular case the authority must have good reason for doing so; and such reason must be spelled out clearly in its decision.
19. While not made entirely clear in the decision or the AR, the original position of the parties was that the issue taken by the Respondent was that the evidence did not establish that the relationship was subsisting. This accords with the Respondent’s skeleton argument. Mr Youssefian contended that the issue was the subsistence of the relationship and that the Respondent had accepted that it was genuine. Following the application the decision maker communicated with the Applicant stating, “please provide evidence that you are in a subsisting relationship”. The next communication to the Applicant asks for further information and specifically asks for “a copy of the Applicant’s signed tenancy agreement along with any other official documents linking you and your spouse to the same address, such as driving licences, GP/medical letters, payslips, DWP/HMRC letters”. The Immigration Rules are referred to including RWP 6.2 which states that the relationship between the applicant and their partner must be genuine and subsisting. The decision says that the Respondent was not satisfied that the relationship is “genuine and subsisting”. It also says that the documents submitted are not sufficient evidence of a “subsisting relationship” and finally it is said that the decision maker is not satisfied that the evidence confirms that the Applicant and Ms Daud are in a “genuine and subsisting relationship”. In the AR it is said that “there was no compelling evidence to confirm your relationship is a genuine and subsisting one”. The position of the Respondent is not entirely clear from the decision or the AR and Mr Howarth’s submissions on this were not consistent.
20. I do not accept that the Respondent applied the policy guidance. There is no mention of the correct policy guidance in the decision or the AR. While the AR mentions Mandalia this is in the context of evidential flexibility. The grounds for AR specifically referred to the correct policy guidance. There was no issue raised by the Applicant concerning evidential flexibility. I do not accept Mr Howarth’s submission that because a matter is raised in the AR grounds, it follows that it is considered by the decision maker.
21. I do not accept that the decision maker and administrative reviewer applied the part of the guidance which Mr Howarth took me to regarding further information about whether the relationship was genuine. This was contrary to Respondent’s original position. This has never been the Respondent’s case. I was not taken to any specific part of the application or information submitted with it or following requests made by the Respondent that would support that there was “further information” in the context of the policy guidance. Moreover, it is difficult to see how the application or further information that was relied on by the Applicant could shed doubt on whether the relationship was genuine rather than subsisting.
22. While I agree with Mr Howarth that it is open to the Respondent to ask for more evidence in any case, the policy guidance makes a distinction between cases where it has already been proven that the relationship is genuine (in this case the Respondent normally only needs to be satisfied that the relationship is subsisting and the requirements are less onerous for second or subsequent applications) and cases where it has already been proven that the relationship is genuine but further information has come to light that leads the Respondent to suspect that the relationship is not genuine. In the latter scenario the policy guidance says that whether the relationship is genuine should be reconsidered. In either case the Respondent was obliged to inform the Applicant why the normal approach was not being taken in accordance with the policy guidance. The lack of clarity in respect of genuine and/or subsisting in the Respondent’s approach supports that policy guidance was not applied.
23. While I agree with the Respondent that public law does not require ritualistic citation of policy guidance by name for a decision to be lawful, there is nothing to support that the decision maker applied the policy guidance thereby following the ratio in Mandalia. I accept that the proper application of the policy guidance would not necessarily lead to a decision in favour of the Applicant. Moreover, I accept that the policy is qualified and the burden remains on the Applicant. There is nothing in either the decision or AR that explains why the “normal” and “general” approach was not taken to the question of whether the relationship is subsisting. Neither the decision nor the administrative review acknowledges that this was a second application. While the administrative reviewer referred to a “policy” there is no engagement with the relevant policy guidance. It is clear that the Respondent was referring to the policy relating to evidential flexibility (also raised in the Respondent’s skeleton argument). However, the Applicant has never made a complaint relating to evidential flexibility.
24. Ground 3 is made out. I agree with the parties that there would be no need for me to consider the remaining grounds of review if I were to find that ground 3 is made out.
25. Mr Howarth contended that if I found public law error, I should apply s.31(2A) of the Senior Courts Act 1981. The provision exists to prevent relief being granted where quashing would merely produce the same result at further expense. I have considered Bradbury v Brecon Beacons National Park Authority [2025] EWCA Civ 489 per Lewis LJ;
“The approach of the courts to section 31(2A)
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 decision-maker 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.
…
74 The section emphatically does not require the court to embark upon an exercise where the error is left out of account, and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision maker undertook to ascertain whether it is highly likely that the decision that the public body took would have been substantially different if the error had not occurred.
26. I must not cast myself as the primary decision maker in a fact–sensitive evaluative exercise. I do not accept that it is highly likely that the Respondent would have reached the same outcome had the policy guidance been applied. I cannot tell how the decision maker would have approached matters, or what decision it would have reached, had the error not been made. The requirements of s.31(2A) are not satisfied. I accept that had the Respondent applied the correct policy guidance the character of the assessment would have been different. It cannot be said to be highly likely that the outcome would not have been substantially different.
27. The decision of the Respondent is quashed.
Joanna McWilliam
Upper Tribunal Judge McWilliam
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
SAQIB MEHMOOB
Applicant
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge McWilliam
HAVING considered all documents lodged and having heard Mr L Youssefian of counsel, instructed by M & K solicitors, for the applicant and Mr M Howarth, of counsel, instructed by the GLD, for the respondent at a hearing on 7 July 2026
IT IS ORDERED THAT:
1. The application for judicial review is granted for the reasons in the attached judgment.
2. The respondent’s decision dated 6 July 2024 refusing the applicant's application for leave to remain as a dependant under the Graduate route, maintained on administrative review dated 14 February 2025, is quashed.
3. The parties were ordered to apply for any consequential orders by 4pm on 12 August 2026. The applicant sought (1) a direction that the respondent permits a period of 60 days from the date of quashing the decision for the applicant to make any application and (2) a direction that any such application be considered in line with the immigration rules in force at the time of the application. The applicant no longer seeks (2).
4. The respondent has filed a note objecting to the draft consequential order proposed by the applicant. The applicant objects to the respondent’s reliance on the note. The applicant contends that the respondent does not have standing to object because of the deadline for applications for a consequential order and the time has passed. However, I do not accept this because the respondent is not seeking to make a consequential order, she is objecting to the terms of the applicant’s proposed consequential order.
5. The respondent opposes the consequential order on the basis that it is not an order consequential to the judgement, but a substantive direction governing the future exercise of the respondent’s discretion on a revived application by imposing a timetable that would not otherwise apply as a matter of ordinary principle following a quashing order. I refuse to make the order as proposed by the applicant. In my view the relief sort falls outside the proper scope of a consequential order.
6. The respondent shall pay the applicant’s reasonable costs, such costs to be assessed on a standard basis if not agreed.
7. Permission to appeal is refused for the reasons I have given in my separate order.
Signed: Joanna McWilliam
Upper Tribunal Judge McWilliam
Dated: 18 August 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 20/08/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
JR- 2025-LON-001318
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for permission to appeal
The King on the application of
SAQIB MEHBOOB
Applicant
And
Secretary of State for the Home Department
Respondent
NOTIFICATION of the Judge’s decision (UT Rule 45)
UPON the Upper Tribunal specifying in compliance with s13(11) of the Tribunals, Courts and Enforcement Act 2007 that the relevant appellate court is the Court of Appeal in England and Wales
AND UPON the Upper Tribunal having considered all the documents lodged,
Order by Upper Tribunal Judge McWilliam:
The application for permission to appeal is refused
Reasons
(1) I have taken into account the grounds and the submissions in support (a seventeen-page document).
(2) Ground 1: What is said at [22] of the decision is consistent with the approach endorsed in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [29]: “A public authority’s published policy is a relevant consideration in the exercise of a discretion… If it is to depart from the policy in a particular case the authority must have good reason for doing so; and such reason must be spelled out clearly in its decision”.
(3) Ground 2: This ground ignores that the policy draws a distinction between first and subsequent applications. I found that the policy had not been applied. The reason, however, was not because of the use of the expression “genuine and subsisting” in the decision. Where an applicant has already proven the genuineness of their relationship in a successful application, in a subsequent application based on the same relationship the decision maker normally only needs to be satisfied that the relationship is subsisting unless further information comes to light that leads the decision maker to suspect that the relationship is not genuine. In this situation the decision maker should reconsider whether the relationship is genuine. The problem with the respondent’s position was the lack of clarity as to whether the issue was the subsistence and/ or the genuineness of the relationship. Mr Howarth was not consistent on this point.
(4) Ground 3: It was not until during the hearing that the respondent said that “further information” had come to light with reference to the policy. What can amount to further information should not be narrowly defined; however, it is reasonable to expect it to be properly identified.
(5) Ground 4: Section 31(2A) of the Senior Courts Act 1981 was properly considered in accordance with case law at [25] and [26].
(6) The first appeal permission test is not satisfied. There is no real prospect of success or some other compelling reason to grant permission.
Signed: Joanna McWilliam
Upper Tribunal Judge McWilliam
Dated: 18 August 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 20/08/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
1. A party who has been refused permission to appeal to the Court of Appeal by the Upper Tribunal may apply to that court for permission.
2. Where an application for permission to bring judicial review proceedings has been determined by the Upper Tribunal on the papers and recorded as being totally without merit and permission to appeal has been refused by the Upper Tribunal, any application to the Court of Appeal for permission to appeal must be made to that Court within 7 days of service of the decision of the Upper Tribunal refusing permission to appeal (Civil Procedure Rules 52.9(3)(b)).
3. In any other case, but subject to paragraph 4 below, the application for permission to appeal must be filed in the Court of Appeal within 28 days of the date on which notice of the Upper Tribunal’s decision on permission to appeal to the Court of Appeal is sent to the appellant (CPR Practice Direction 52D 3.3).
4. If the application to the Upper Tribunal for permission to appeal to the Court of Appeal was made out of time and the Upper Tribunal refused to grant an extension of time, the time limit for filing an Appellant’s Notice in the Court of Appeal is 21 days from the date of issue of the substantive decision: (CPR 52.12(2)(b)). Such a person is therefore likely to be out of time for appealing to the Court of Appeal and should apply to the Court of Appeal for an extension of time.
Case No: JR-2025-LON-001318
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
18 August 2026
Before:
UPPER TRIBUNAL JUDGE McWILLIAM
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Between:
THE KING
on the application of
Saqib Mehboob
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr L Youssefian, instructed by M & K Solicitors, for the Applicant
Mr M Howarth, instructed by the Government Legal Department) for the Respondent
Hearing date: 7 July 2026
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J U D G M E N T
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Judge McWilliam:
Introduction
1. The Applicant is a Pakistani national. He was born on 12 October 1994. He married Ms Kashmala Tariq Daud, also a Pakistani national, on 3 July 2022 in Pakistan.
2. The Applicant challenges the Respondent’s decision dated 6 July 2024 refusing his application for leave to remain as a dependant under the Graduate route, on the basis that he failed to establish a genuine and subsisting relationship with his wife, Ms Daud. The Respondent maintained that decision following administrative review (AR) on 14 February 2025.
The grounds of review
3. There are four grounds:
i) The Respondent misapplied paragraph RWP 6.2 of the Immigration Rules;
ii) The Respondent failed to take into account material considerations;
iii) The Respondent failed to apply her own published policy guidance;
iv) The Respondent acted irrationally in failing to accept the evidence provided as establishing a genuine and subsisting relationship.
The issues
4. The issue is narrow. It is whether the Respondent acted unlawfully in not being satisfied, on the evidence provided with the application and administrative review, that the Applicant had demonstrated a genuine and subsisting relationship within paragraph RWP 6.2 of Appendix Relationship with his partner, Ms Daud.
The background
5. On 15 August 2022, Ms Daud was granted entry clearance as a student, valid until 1 January 2024. In her application she declared that she was married to the Applicant. On 15 September 2022, the Applicant applied for entry clearance as a dependant on the basis of his marriage to Ms Daud. That application was granted on 18 October 2022, and the Applicant entered the United Kingdom on 31 October 2022.
6. Following correspondence and a minded-to-refuse letter, the Respondent issued a decision on 8 November 2023 cancelling the Applicant's permission to enter the United Kingdom with immediate effect under paragraph 9.7.3 of Part 9 of the Immigration Rules. The decision was based on an allegation that the marriage certificate submitted in support of the entry clearance application was not genuine. The Applicant commenced judicial review proceedings challenging that decision. The Respondent subsequently proposed to settle the claim, and a consent order was sealed on 19 April 2024. The terms included withdrawal of the 8 November 2023 decision, reinstatement of the Applicant's leave (which had been valid until 1 January 2024), and provision for the Applicant to make a fresh application as a dependant under the Graduate route within 28 days, which would be treated as in time.
7. On 26 April 2024, the Applicant submitted an application for leave to remain as the dependant of his spouse under the Graduate route. The Respondent wrote to the Applicant on 29 May 2024 and 12 June 2024 requesting evidence of a subsisting relationship with Ms Daud, including the tenancy agreement for the address at 11 Woodbridge Close, Luton. The Applicant provided a tenancy agreement in the names of Muhammad Aitezaz Tariq Chaudhary and Sumaira Akbar. He also provided energy bills addressed to Miss Kashmala Tariq and Muhammad Aitezaz Tariq Chaudhary, a water bill addressed to Ms S Akbar and Mr S Mehboob, a copy of the marriage certificate, photographs, a letter from Leagrave Surgery confirming that both the Applicant and Ms Daud were registered patients at that address, phone messages in a language other than English, bank statements in the individual names of the Applicant and Ms Daud respectively, and the Applicant's driving licence.
The decision of the Respondent dated 6 July 2024
8. The salient parts of the decision read as follows:
“You have not demonstrated that the relationship between you and Daud Kashmala Tariq is genuine and subsisting...
We wrote to you on 29 May 2024 and 12 June 2024 for you to provide evidence of a subsisting relationship with Daud Kashmala Tariq
We asked you to provide your tenancy agreement for your address of…… you provided this however the agreement is in the names of Muhammad Aitezaz Tariq Chaudhary & Sumaira Akbar. You have not explained why you or are not listed on the agreement.
You provided evidence from EDF Energy addressed to Miss Kashmala Tariq and Muhammad Aitezaz Tariq Chaudhary. As well as evidence from affinity water addressed to Ms S Akbar and Mr S Mehboob.
You also provided the following documents:
• a copy of your marriage certificate
• photos
• a letter from your GP confirming you and are both patients at Leagrave surgery
• phone messages you submitted which are not in English
• Barclays Bank statement in your name only
• Halifax Bank statement in name only
• your driving licence
The documents you have submitted as evidence are not sufficient evidence of a subsisting relationship
Due to this, I am not satisfied that the evidence you have demonstrated confirms that you are in a genuine and subsisting relationship with Daud Kashmala Tariq”
The Administrative Review
9. In the AR dated 14 February 2025 the Respondent accepted that the Applicant and Ms Daud lived at the same address but that the evidence did not establish that they are a couple and in a genuine and subsisting relationship. The following was said in the AR:
i. The points made in the application for AR had been carefully considered.
ii. The application was considered in accordance with the correct rules, policy, and guidance and correctly assessed against them.
iii. The Applicant fails to meet the requirements of the immigration rules.
iv. The caseworker wrote to the applicant on 29 May 2024 and 12 June 2024 advising him to provide further cohabitation evidence that he was still in a genuine and subsisting relationship with Ms Daud
v. The evidence confirmed that the Applicant and Ms Daud lived at the same address however it did not reflect this and none of the evidence confirmed that the Applicant and Ms Daud are in a genuine and subsisting relationship.
vi. There was no compelling evidence to confirm the Applicant's relationship is genuine and subsisting.
vii. In relation to evidential flexibility the Applicant was written to requesting further cohabitation evidence that he was still in a genuine and subsisting relationship. The caseworker correctly applied evidential flexibility
Legal Framework
The Senior Courts Act 1981
10. Section 31 (2A) of the 1981 Act, as inserted by the Criminal Justice and Courts Act 2015, provides that;
“The High Court-
(a) must refuse to grant relief on an application for judicial review …
(b) if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”
The Immigration Rules
11. Para GR 11.1 of Appendix Graduate, so far as relevant, states the following:
“Relationship requirement for dependent partner of a Graduate
GR 11.1. The applicant must show that the relationship meets the relationship requirements as specified in Appendix Relationship with Partner.”
12. Para RWP 6.2 of Appendix Relationship with Partner, so far as relevant, states the following:
“Genuine and subsisting relationship requirement
RWP 6.1. The applicant and their partner must have met in person.
RWP 6.2. The relationship between the applicant and their partner must be genuine and subsisting.”
Relationship with a Partner: Assessing the relationship with a partner based on the Immigration Rules: Appendix Relationship with Partner – Version 6.0”, published on 5 July 2024 (‘the policy guidance’).
13. Page 29 of the Guidance states:
“Subsisting relationship (second and subsequent applications with the same partner)
This section explains how to assess applications from an applicant who has been successful in their previous application on the basis of their relationship with their current partner.
You must consider if the relationship is subsisting.
Where an applicant has already proven the genuineness of their relationship in a successful application, where there is a subsequent application based on the same relationship, you normally only need to be satisfied the relationship is subsisting. This means that the relationship is current and continuing. You do not need to reconsider whether other relationship requirements are met, as this has already been accepted at previous successful application. You do not need to reconsider evidence already accepted in a previous application.
Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed, or if they have changed, they have done so in a way that is consistent with the relationship continuing. This usually involves cohabitation, shared financial responsibilities and shared common household responsibilities, however, there may be circumstances where a relationship is subsisting despite the partners living apart. […]”
Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed, or if they have changed, they have done so in a way that is consistent with the relationship continuing. This usually involves cohabitation, shared financial responsibilities and shared common household responsibilities, however, there may be circumstances where a relationship is subsisting despite the partners living apart.
If the applicant and their partner are not living together, especially if they have not lived together for a while or they have not lived together since the partner came to the UK, you need to be satisfied there is a reasonable explanation for them living apart. A reasonable explanation might include if they cannot live together temporarily due to work, or if one partner is living temporarily with a close family member to provide care. In such cases you will need to be satisfied the living apart is temporary and that despite it the relationship is still subsisting. You should also expect to see additional evidence of commitment such as shared financial responsibility or visits to be satisfied the relationship has not broken down.
However, if, after the first grant of permission, further information comes to light that leads you to suspect the relationship is not genuine, you should consider this again. You can request further evidence if it is needed to satisfy you that the relationship is genuine and you should write to the applicant to request this or follow guidance on Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff. If relevant, apply the guidance on Suitability: sham marriage or civil partnership.
Evidence of a subsisting relationship
Applicants for settlement will not be asked on the application form to provide documentary evidence of their relationship subsisting unless their circumstances have changed since their last application for permission.
You can assess that a relationship is subsisting through a combination of:
• information provided by the applicant on the application form
• direct checks with third parties
You will only need to see documentary evidence where you are not satisfied the relationship is subsisting, in such cases you should write to the applicant to request evidence.
Ground 3 - Submissions
14. Mr Youssefian drew a distinction between the consideration of genuine and subsisting. He said that applying the policy, in second or subsequent cases the decision maker will “normally” only need to be satisfied that the marriage is subsisting and that “generally” a relationship can be accepted as subsisting where the partners’ circumstances have not changed or have changed consistently with the relationship continuing.
15. Mr Howarth said that it was clear from the decision that the Respondent was looking at whether the relationship was subsisting and not whether the relationship was genuine. He said that it was abundantly clear that the decision maker was cognisant that this was a second application. He could not take me to any part of the decision or AR to support this. He said that it was the very embodiment of the Applicant’s grounds for AR that this was the Applicant’s second application. He referred to the part of the policy guidance which read as follows:
However, if, after the first grant of permission, further information comes to light that leads you to suspect the relationship is not genuine, you should consider this again.
16. Mr Howarth contended that ground 3 was “knocked out” by this part of the policy guidance. I asked him to identify the relevant further information. He said that it was the information in the Applicant’s application. He also said that it was the evidence that the Applicant submitted with the application and in response to the requests for further information. He said that the Respondent was allowed to consider whether the relationship was genuine on a second or further application.
17. Mr Howarth said that whether the issue is that the relationship is genuine or subsisting was not material because the policy guidance entitles the Respondent to ask for further evidence in either case. The Respondent is not barred from considering whether the relationship is genuine on a second or subsequent application.
Ground 3 – conclusions
18. The policy guidance draws a material distinction between first-time applications and second or subsequent based on the same relationship. The consequences of the policy guidance, about which there did not seem to be disagreement between the parties, are as follows:
(1) Where an applicant has already proven the genuineness of their relationship in a successful application, in a subsequent application based on the same relationship the decision maker normally only needs to be satisfied that the relationship is subsisting unless further information comes to light that leads the decision maker to suspect that the relationship is not genuine. In this situation the decision maker should reconsider whether the relationship is genuine.
(2) Generally, a relationship can be accepted as subsisting where the partners’ circumstances have not changed or if they have changed that they have done so in a way that is consistent with the relationship continuing and that this usually involves cohabitation shared financial responsibilities and shared common household responsibilities.
(3) The policy guidance does not prevent the Respondent from requesting further evidence/ information relating to whether the relationship is subsisting and/or genuine and it does not remove the need for the decision maker to consider and evaluate that evidence.
(4) The policy does not create a presumption of success of second or subsequent applications. It cannot fetter the Respondent’s discretion, and it is open to the decision maker to depart from the policy guidance.
(5) Published policy guidance must be followed unless there is good reason not to do so. As Lord Wilson said in Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at paragraph 29: “A public authority’s published policy is a relevant consideration in the exercise of a discretion… If it is to depart from the policy in a particular case the authority must have good reason for doing so; and such reason must be spelled out clearly in its decision.
19. While not made entirely clear in the decision or the AR, the original position of the parties was that the issue taken by the Respondent was that the evidence did not establish that the relationship was subsisting. This accords with the Respondent’s skeleton argument. Mr Youssefian contended that the issue was the subsistence of the relationship and that the Respondent had accepted that it was genuine. Following the application the decision maker communicated with the Applicant stating, “please provide evidence that you are in a subsisting relationship”. The next communication to the Applicant asks for further information and specifically asks for “a copy of the Applicant’s signed tenancy agreement along with any other official documents linking you and your spouse to the same address, such as driving licences, GP/medical letters, payslips, DWP/HMRC letters”. The Immigration Rules are referred to including RWP 6.2 which states that the relationship between the applicant and their partner must be genuine and subsisting. The decision says that the Respondent was not satisfied that the relationship is “genuine and subsisting”. It also says that the documents submitted are not sufficient evidence of a “subsisting relationship” and finally it is said that the decision maker is not satisfied that the evidence confirms that the Applicant and Ms Daud are in a “genuine and subsisting relationship”. In the AR it is said that “there was no compelling evidence to confirm your relationship is a genuine and subsisting one”. The position of the Respondent is not entirely clear from the decision or the AR and Mr Howarth’s submissions on this were not consistent.
20. I do not accept that the Respondent applied the policy guidance. There is no mention of the correct policy guidance in the decision or the AR. While the AR mentions Mandalia this is in the context of evidential flexibility. The grounds for AR specifically referred to the correct policy guidance. There was no issue raised by the Applicant concerning evidential flexibility. I do not accept Mr Howarth’s submission that because a matter is raised in the AR grounds, it follows that it is considered by the decision maker.
21. I do not accept that the decision maker and administrative reviewer applied the part of the guidance which Mr Howarth took me to regarding further information about whether the relationship was genuine. This was contrary to Respondent’s original position. This has never been the Respondent’s case. I was not taken to any specific part of the application or information submitted with it or following requests made by the Respondent that would support that there was “further information” in the context of the policy guidance. Moreover, it is difficult to see how the application or further information that was relied on by the Applicant could shed doubt on whether the relationship was genuine rather than subsisting.
22. While I agree with Mr Howarth that it is open to the Respondent to ask for more evidence in any case, the policy guidance makes a distinction between cases where it has already been proven that the relationship is genuine (in this case the Respondent normally only needs to be satisfied that the relationship is subsisting and the requirements are less onerous for second or subsequent applications) and cases where it has already been proven that the relationship is genuine but further information has come to light that leads the Respondent to suspect that the relationship is not genuine. In the latter scenario the policy guidance says that whether the relationship is genuine should be reconsidered. In either case the Respondent was obliged to inform the Applicant why the normal approach was not being taken in accordance with the policy guidance. The lack of clarity in respect of genuine and/or subsisting in the Respondent’s approach supports that policy guidance was not applied.
23. While I agree with the Respondent that public law does not require ritualistic citation of policy guidance by name for a decision to be lawful, there is nothing to support that the decision maker applied the policy guidance thereby following the ratio in Mandalia. I accept that the proper application of the policy guidance would not necessarily lead to a decision in favour of the Applicant. Moreover, I accept that the policy is qualified and the burden remains on the Applicant. There is nothing in either the decision or AR that explains why the “normal” and “general” approach was not taken to the question of whether the relationship is subsisting. Neither the decision nor the administrative review acknowledges that this was a second application. While the administrative reviewer referred to a “policy” there is no engagement with the relevant policy guidance. It is clear that the Respondent was referring to the policy relating to evidential flexibility (also raised in the Respondent’s skeleton argument). However, the Applicant has never made a complaint relating to evidential flexibility.
24. Ground 3 is made out. I agree with the parties that there would be no need for me to consider the remaining grounds of review if I were to find that ground 3 is made out.
25. Mr Howarth contended that if I found public law error, I should apply s.31(2A) of the Senior Courts Act 1981. The provision exists to prevent relief being granted where quashing would merely produce the same result at further expense. I have considered Bradbury v Brecon Beacons National Park Authority [2025] EWCA Civ 489 per Lewis LJ;
“The approach of the courts to section 31(2A)
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 decision-maker 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.
…
74 The section emphatically does not require the court to embark upon an exercise where the error is left out of account, and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision maker undertook to ascertain whether it is highly likely that the decision that the public body took would have been substantially different if the error had not occurred.
26. I must not cast myself as the primary decision maker in a fact–sensitive evaluative exercise. I do not accept that it is highly likely that the Respondent would have reached the same outcome had the policy guidance been applied. I cannot tell how the decision maker would have approached matters, or what decision it would have reached, had the error not been made. The requirements of s.31(2A) are not satisfied. I accept that had the Respondent applied the correct policy guidance the character of the assessment would have been different. It cannot be said to be highly likely that the outcome would not have been substantially different.
27. The decision of the Respondent is quashed.
Joanna McWilliam
Upper Tribunal Judge McWilliam