Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2020-000023

First-tier Tribunal No: HU/02982/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 June 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

NIRAVKUMAR PAREKH
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini of counsel, instructed by JJ Law Chambers
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 22 May 2025

DECISION AND REASONS
1. The Appellant is an Indian national, currently aged 39 (date of birth 21 June 1986). He arrived in the UK on 14 October 2007. On 2 October 2017 he applied for Indefinite Leave to Remain (“ILR”) on the basis of 10 years’ lawful residence under Paragraph 276B of the Immigration Rules. This was refused by the Secretary of State (“the Respondent”) by a decision dated 21 January 2019. The Appellant appealed against this refusal.
2. The appeal was originally heard by First-tier Tribunal Judge Manyarara at Hatton Cross on 5 August 2019. The appeal was dismissed, following which an application for permission to appeal was made and was granted by First Tier Tribunal Judge F O’Brien on 23 December 2019 on all grounds. The reasons for granting permission were a mistaken recording in the decision that none of the Appellant’s family had attended the hearing to give oral evidence, and failure properly to consider the best interests of relevant children. Permission was also granted to challenge the Judge’s calculation of the Appellant’s tax payments.
3. At a hearing on 27 March 2025, it was determined that there was a material error of law in the decision of Judge Manyarara and that there should be a re-made decision. Directions were given for the filing of further evidence prior to the re-making of the appeal decision. Those directions included the following:
1. The Appellant and Respondent are to use their best endeavours to agree the figures given by the Appellant to the Respondent for the relevant period and the figures given by the Appellant to HMRC for the relevant tax years, and the figure in relation to any discrepancy in tax liability for the relevant periods.

2. The extent of any agreement between the parties shall be communicated to the Upper Tribunal no later than 5 working days before the hearing.

3. If there is a dispute as to the figures directed above, the extent of, and explanation for, such dispute is to be explained in full by each party in a skeleton argument which shall be filed and served no later than 5 working days before the hearing.
4. There was a failure to comply with the above directions. A schedule of figures was filed by the Appellant but was not served upon the Home Office in sufficient time for there to be agreement or disagreement and no skeleton argument was filed by either party.
5. We have before us the original composite appeal bundle (“CB”) and a supplementary bundle (“SB”). We heard evidence from the Appellant, who was cross examined on behalf of the Respondent, as well as submissions from both parties. No other oral evidence was adduced.
6. We have considered the two witness statements filed by the Appellant’s wife, the witness statement dated 15 May 2025 on behalf of Dipakkumar Parekh, the Appellant’s brother, the handwritten letters from his nephews, and the photographs which, we accept, show engagement between the Appellant’s family and that of Dipakkumar Parekh.
The Appellant’s case
7. The Appellant has filed two witness statements dated 15 May 2025 and 31 July 2019 which have been taken into account,
8. He came to the UK in 2007, having obtained a bachelor’s degree in India. He studied and then became self-employed in the IT industry from 2010 and, for a period of time, was also an employee at RK and Sons Limited. His first witness statement records that he was employed between 2013 and 2016 but also states that the employment ended in 2014.
9. His wife came to the UK in 2015 and they have a six-year old daughter. The Appellant, his wife and daughter reside with the Appellant’s brother (Dippakumar Parekh), Dippakumar’s wife and Dippakumar’s two sons who are the Appellant’s nephews.
10. His case is that he had two firms of accountants prior to 2015. The first was PKG Plus who assisted with the 2010 tax return. He became aware after 2015 that this tax return did not declare gross dividend income of £12,222. There was no additional tax liability arising from the subsequent amendment to this return. PKG Plus also supported with the 2011 tax return and again failed to declare gross dividend income of £28,111. The subsequent amendment gave rise to an adiditonal tax liability of £243, paid in May 2016. PKG Plus had, the Appellant said, been found to have ceased to trade when he contacted them for an explanation.
11. The second firm he employed was Makes Worth Limited, instructed for the Appellant’s 2013 tax return. There was an error in that he failed to declare £22,000. This error gave rise to an additional tax liability of £6380. He produced a letter before claim in relation to alleged negligency by that firm.
12. He first became aware of errors in this tax return in 2015 upon speaking to a friend who had the same accountant. He instructed Shah accountants to amend the tax returns.
13. The Appellant’s oral evidence was that he had approved the tax returns filed in 2010, 2011, 2012 and 2013 but, as a young man who had not been in business before, he did not know that his dividend income required to be declared. He had not appreciated that there was a part of the self-assessment form in relation to self-employed income that had not been completed.
14. The Appellant also gave oral evidence about his family ties to India, confirming that he maintains telephone contact with relatives there and that he has travelled to India once since he began residing in the UK. He said that he and his wife speak English at home and that his daughter has limited knowledge of Gujarati.
The Respondent’s decision
15. The refusal decision is dated 21 January 2019. The decision is to the effect that:
(a) The Appllenat had made false representations in his applications for leave to remain as Tier 1 (General) migrant on 14 October 2010 and 24 November 2012. In his 2010 Tier 1 application, he had claimed income of £49,852.61 during the period 1 January 2010 to 10 October 2010 from employment and self-employment. He was awarded 25 points. In his 2012 Tier 1 application, he claimed earnings of £41,219 from self employment, covering the period 1 November 2011 to 31 October 2012. He was awarded 25 points.
(b) The Respondent had made inquiies of HMRC which resulted in a reposne that the Appellant had submitted evidence of an income of £28,111 in dividends for the tax year ending in April 2011. This was regarded as a discrepancy in relation to the information submitted in the Tier 1 application dated 14 October 2010.
(c) In relation to the tax year ending in April 2012, HMRC confrmed that the Appellant’s income from self-employment was £11,514 and for the following tax year ending in April 2013, his total declared income was £7705. The combined figures were less than had been declared in the Tier 1 application dated 24 November 2012.
(d) A request had been made to HMRC dated 27 November 2015 to amend the 2013 tax return so as to declare income of £29,705. The combined income for the tax years ending in April 2012 and April 2013, on the amended figures, was £41,219.
(e) The Appellant was invited to complete a questionnaire to confirm the accuracy of his tax returns, and so confimed. He also had an interview at which he was asked to explain the apparent disprepancies between his claimed earnings declared to HMRC and those he had presented to the Home Office.
(f) The Respondent’s conclusion was that it was undesirable to grant ILR to the Appellant in light of the failure to declare his income in full and his attempt retrospectively to declare his income in 2015. The application was refused under paragraph 276D with reference to 276B(iii 322(5) of the Immigration Rules. It was further concluded that the Appellant could not meet the suitability requirements under the Immigration Rules.
(g) The Respondent relies on dishonesty in terms of the Appellant having failed to declare his full earnings to HMRC or by falsely representing his earnings in support of his visa applications made on 14 October 2010 and 24 November 2012.
(h) The Respondent identified gaps in the Appellant’s continuous lawful residence in the UK, concluding that he had not completed 10 years continuous lawful residence and could not meet parrgaph 276A (a) (v) of the Immigration Rules.
(i) The Respondent conluded that the Appellant could not meet the requirements of paragraph 276 ADE (vi) in the absence of very significant obstacles to his integration into society in India.
(j) Leave outside the Immigration Rules on article 8 ECHR grounds was considered, and there were found not to be exceptional circistamces.
Relevant law
16. At the material time, the Immigration Rules made provision for the grant of ILR on the ground of long residence in the United Kingdom as follows.
17. An applicant for leave to remain on the ground of long residence had to meet each of the requirements in para 276B(i)-(ii) and (v) (para 276A1).
18. An extension of leave on the ground of long residence was to be refused if the Secretary of State was not satisfied that the requirement in para 276A1 was met (para 276A4).
19. Para 276C stated that ILR could be granted provided that the Secretary of State was satisfied that each of the requirements of para 276B was met. Para 276D provided that she should not grant ILR if she was not so satisfied.
20. Para 276A set out relevant definitions. These include the following:
(a) ‘continuous residence’ means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant: (i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or (ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or (iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or (iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison Page 6 (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or (v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) ‘lawful residence’ means residence which is continuous residence pursuant to: (i) existing leave to enter or remain; or (ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or (iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) ‘lived continuously’ and ‘living continuously’ mean ‘continuous residence’, except that paragraph 276A(a)(iv) shall not apply.”
21. Para 276B provided as follows:
The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and

(iii) the applicant does not fall for refusal under the general grounds for refusal.

(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.
22. In relation to the application of Rule 276B, the burden of proof rests with the Appellant, subject to what is said below about any allegation of dishonesty. The standard of proof is the balance of probabilities.
23. In relation to Article 8 ECHR issues, it is for the Appellant to show that the Respondent’s decision interferes with his Article 8 rights. If that is established, it is for the Respondent to show that the interference is justified in the interests of effective immigration control. Any such interference must be in accordance with the law and proportionate, having regard to all the circumstances.
24. The Respondent is required to establish “dishonesty” in order to show that there has been a false representation or false document. In AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 it was held that an innocent albeit inaccurate representation would not be “dishonest”. The applicant’s state of mind or intention is relevant: Ahmed (general grounds of refusal material non-discloaure) Pakistan [2011] UKUT 351 (IAC).
25. The standard of proof is the balance of probabilities, however where deception is in issue, the standard of proof is at the “higher end of the spectrum of balance of probability”, per Olufosoye [1992] Imm AR 141. The position was stated in Balajigari [2019] EWCA Civ 673 to be as follows:
…what is being asserted by the Secretary of State is that an applicant for ILR has been dishonest. That is a serious allegation, carrying with it serious consequences. Accordingly, we agree with Martin Spencer J that the Secretary of State must be satisfied that dishonesty has occurred, the standard of proof being the balance of probabilities but bearing in mind the serious nature of the allegation and the serious consequences which follow from such a finding of dishonesty. [43]
Findings and conclusions
26. The Appellant’s credibility is at the heart of this appeal. We have taken into account his written and oral evidence and materials put before us. We are required to determine whether he has been dishonest, either in his presentation to HM Revenue and Customs (“HMRC”) or in relation to information presented to the Home Office.
27. Directions given on 27 March 2025 for a schedule of relevant figures to be agreed if possible, and for skeleton arguments addressing areas in dispute have not been complied with. The purpose of these directions was to assist the Tribunal’s consideration of the issues. The parties have thereby not complied with Reg. 2(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008. It is no part of the Tribunal’s role to conduct analysis of accounting figures or to apply specialist knowledge of tax rules about which no evidence has been adduced.
28. It is our view that the issue of the Appellant’s honesty vis a vis the Home Office was put in issue by the refusal letter and also by way of questions asked in cross-examination. We do not accept the submission that the only allegation of dishonesty relates to his disclosures to HMRC.
29. The Appellant accepts that tax returns filed on his behalf by his accountant relating to three tax years (2009–2010, 2010-2011 and 2012-2013) were incorrect. Those returns did not disclose to HMRC that the Appellant was receiving income in the form of dividends from his self-employment.
30. The Appellant was asked specifically about the dividends. His evidence was vague. We accept the submission that the matters about which he was asked took place many years ago. However, he was aware that these matters were in issue in this appeal and had the opportunity to refresh his memory from relevant documents.
31. He was not able to remember how often he had taken dividends. We specifically asked about the fact that (on the Appellant’s own schedule) his 12-month declarations to HMCR appeared to tally in 2010 exactly with his 10-month claimed earnings submitted to the Home Office. In submission, his counsel suggested that there was a two-year window within which dividends could be paid, and that this accountancy “device” offered an explanation for the fact that the Appellant’s 12-month declarations to HMRC matched his 10-month declarations to the Home Office. We cannot accept that analysis without evidence, of which there was none, from the Appellant and/ or an accountant. In essence, this submission was no more then speculation as to how the identical figures might be explained, and as such, we cannot accept the explanation.
32. For the avoidance of doubt, we do not take issue with the letter produced by the Shah Consultancy dated 1 February 2016. The letter explains that amended returns were submitted and provides detail of the tax liabilities that resulted from the amended returns, where applicable.
33. We are required to determine whether there was dishonesty in relation to the Appellant’s declarations to HMRC. The submission made on his behalf is that he made an honest mistake in under-declaring his income. In support of that, he relies on a number of factors, including his relative youth and inexperience in relation to HMRC, his reliance on the professional advice of his accountant, and the fact that, for one of the under-declared years he was not required to pay additional tax, for the second his additional liability was minimal at £243 and that it was only in relation to the third under-declared year that a significant additional liability was incurred.
34. In our view, the amount of the additional liability is of limited relevance to the issue of whether this was an honest mistake. When the tax returns were submitted, the Appellant would not necessarily have known the amount of the tax liability that would have accrued from a complete return. He does not say in his evidence that he was aware of the amount of the liability relating to the under-declaration. The relevant dishonesty lies in the failure to declare rather than in relation to the detail of the financial “gain”. Therefore, we do not consider the amount of the additional liability to be determinative of the question of dishonesty.
35. The Appellant was asked in cross examination whether he received a draft tax return, and confirmed that he did. He also confirmed that he had instructed his accountant to file the return. We acknowledge that the Appellant’s recollection may be diminished by time, and also that he is not an accountant. He says that he was poorly served by the two firms who advised him prior to the Shah Consultancy.
36. However, the non-declarations are not minor discrepancies. It is the tax payer who confirms the accuracy of the tax return. The Appellant would have been aware of his income and as such have known about the dividend payments. We are therefore not able to accept his evidence that he was honestly mistaken as to the need to declare dividend income. His evidence as to the frequency of dividend payments was vague but he did not deny that he was receiving these. As someone needing to file a self-assessment tax return, we cannot accept that he was unaware of the need to declare all sources of income.
37. We are satisfied that there was under declaration of income to HMRC. We also find that the Appellant overstated his earnings to the Home Office in his visa applications dated 14 October 2010 and 24 November 2012. There is no explanation given as to why his income figure would be the same for a 10-month period as for a 12-month tax year. The closest one comes to an explanation is the speculative submission that this was an accountancy device by way of manipulation of dividend payments, however, as explained above, there is no evidence either that this is permissible or that it actually happened.
38. We take into account that the Appellant’s applications retrospectively to amend his tax returns for the preceding tax years were prompted by his intention to apply for ILR.
39. We also take into account that the bundle includes a letter from JJ Law Chambers dated 26 July 2019 in relation to a potential claim against the two firms of accountants who submitted the tax returns in issue (PKG Plus and Makes Worth Limited). We were not informed of any subsequent legal action having been taken.
40. It is not the role of the Tribunal to conduct a forensic investigation of the Appellant’s accounts. We do not agree with his submission that, in order to find dishonesty, we would need to consider the documents underlying his tax returns including his receipts, invoices etc. We do not see that this analysis is required as there is an admitted discrepancy between the Appellant’s declarations to HMRC and the amounts he claimed to be earning when making his 2010 and 2012 Tier 1 applications. We must consider whether there is an innocent explanation for the discrepancies and we are not satisfied that there is.
41. We are satisfied, to the required standard, having considered all the evidence in the round, that the Respondent has discharged the burden of proof in showing that the Appellant acted dishonestly in relation to his declarations to HMRC and/or to the Home Office. We do not accept that the Appellant has made an innocent mistake. We find that he has not provided an innocent explanation in relation to the admitted discrepancies in relation to his income declarations.
Continuous lawful residence - para. 276B
42. This aspect of the appeal was not pursued on the Appellant’s behalf, as confirmed by Mr Bazini.
The Appellant’s child and application of para.276 ADE (iv)
43. The applicable provision of the Immigration Rules at the date of decision was paragraph 276 ADE (1) (iv) which provided for the claims of children for leave to remain the UK where they could demonstrate at least seven years’ continuous residence. If the seven years’ residence was established, the Rule then requires consideration of whether it would be reasonable to expect the child to leave the UK.
44. The Appellant’s child had not been in the UK for the required minimum of seven years at the date of application. The Appellant accepted in the course of the hearing that a separate application had been made on 28 March 2025 (included within the supplemental bundle) on behalf of his wife and child.
45. We find that the Appellant’s child does not meet the requirements of this provision of the Immigration Rules and consider that this issue was appropriately conceded.
Paragraph 276 ADE (1) (vi) and Article 8 ECHR
46. We consider first whether the Appellant meets any of the requirements of the Immigration Rules for a grant of leave to remain.
47. The Appellant is unable to meet the requirements of paragraph 276ADE(1)(iii) because even on his own claim, he had not reached this point at the date of application.
48. The only other possible relevant provision is that in paragraph 276ADE(1)(vi) i.e. that the Appellant would face very significant obstacles to reintegration in India. Whilst we accept that the Appellant has had a significant period of absence from India, he has failed to identify any very significant obstacles to reintegration there in accordance with the guidance in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 as to the application of this requirement.
49. The Appellant confirmed in his evidence, and we accept, that both he and his wife have family in India. He speaks both English and Gujarati and it is one of the languages spoken in their home. He has visited India since he began residing in the UK.
50. Overall, whilst we acknowledge that the Appellant has no wish to return to live in India, we do not find that there are any very significant obstacles to his reintegration there. Taking into account all of his circumstances, the Appellant would be able to re-establish himself in India and the consequences of doing so would not be harsh.
51. For these reasons, the Appellant cannot satisfy the requirements of paragraph 276ADE for a grant of leave to remain on private life grounds.
52. We turn now to an assessment of the Appellant’s private and family life under Article 8 of the European Convention on Human Rights, which we undertake in accordance with the five-stage test in the case of Razgar v Secretary of State for the Home Department [2004] UKHL 27, with reference to the factors in section 117B of the Nationality, Immigration and Asylum Act 2002 when considering the public interest as part of the proportionality balancing exercise.
53. In terms of family life, it is not in dispute that the Appellant has a wife and daughter in the United Kingdom (his immediate family) and also his brother and sister-in-law and their children (his extended family) with whom he resides, and has good relationships. However, we do not find that the Appellant has established family life in the United Kingdom for the purposes of Article 8 for the following reasons. Overall, there is some evidence as to the nature and strength of the relationship between the Appellant and his brother’s children. However, these are children who live in the same household and who are of an age that they require a relatively high level of care and supervision. We do not find that this goes beyond the level of care and supervision that would ordinarily be applicable to extended family members who reside in the same house. We are not satisfied that there is any dependency upon the Appellant in relation to his extended family.
54. The Appellant’s brother did not attend the hearing of the re-making. He provided a letter dated 25 July 2019 and attended the original appeal hearing before the First tier Tribunal. He has made a witness statement dated 15 May 2025. We are unable to attach any more than limited weight to his evidence in light of his non-attendance at this hearing.
55. The Appellant came to be living with his brother’s family as a matter of necessity, rather than choice.
56. We have separately considered the Appellant’s brother’s children’s best interests in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 but find this to be to remain in the United Kingdom with their parents as their primary carers. We have taken into account the handwritten letters of support written by the Appellant’s nephews in connection with this appeal.
57. No detail was given as to the nature or seriousness of any harm the children would experience if their uncle were to relocate to India, and we find that in any event he would be able to keep in touch and maintain a relationship, even if not a face to face one as presently.
58. Other than the assertions referred to above, there is nothing to show any particular emotional dependency or support beyond that which one would normally expect between extended family members.
59. In these circumstances, we do not find that the Appellant has established family life in the United Kingdom for the purposes of Article 8. At its highest, the very limited evidence before us establishes a family relationship which goes no further than ordinary emotional ties between adult siblings and their children, with no elements of dependency.
60. We do however take into account these relationships as part of the Appellant’s private life in the United Kingdom.
61. Although the Appellant has failed to establish continuous residence in the United Kingdom since 2007, we accept that he has been here for a not insignificant period of time and during that time he would have built up a degree of private life here – as above with his extended family members but also within the local community. No particular reliance was placed in submissions upon community ties, and we find there to be only very limited evidence of a private life established in the United Kingdom.
62. The Appellant’s removal to India would be an interference with the private life he has established here. His removal would be in accordance with the law as he does not meet any of the requirements of the Immigration Rules and would be in pursuit of the legitimate aim of immigration control.
63. We turn finally to whether that interference would be a disproportionate interference with his private life.
64. On the public interest side of the balancing exercise, we take into account the factors in section 117B of the Nationality, Immigration and Asylum Act 2002 that the maintenance of immigration control is in the public interest. We are satisfied that the Appellant can speak English, but that is only a neutral factor. We take into account that he has been employed and self-employed in the UK. This is a factor in his favour in the balance, although the weight it is given is limited in light of the findings above regarding his lack of honesty in relation to the visa applications which, at times, formed the foundation of his ability to work and be self-employed in the UK.
65. Finally, we take into account that little weight should be given to the Appellant’s private life established at a time when he was in the United Kingdom unlawfully and at any time his immigration status was precarious. The Appellant’s status has at times been precarious in light of the issues identified above in relation to his visa applications which included dishonest representations.
66. On the Appellant’s side of the balancing exercise, we take into account the Appellant’s relationship with his brother and his brother’s family. We note in particular the letters of support from his nephews contained in the supplemental bundle. We also take into account that he has established a private life and that this has been established at times which have included periods of lawful presence in the UK. We take into account his limited private life established in the community; as well as length of residence in the United Kingdom as set out above.
67. We take into account the Appellant’s evidence that his daughter speaks little Gujarati and that English is mainly spoken to her in the home. We find, having regard to his daughter’s young age and the ability of her parents to speak Gujarati, that this factor has some, albeit limited, weight on the Appellant’s side of the balance. We take into account the Appellant’s oral evidence that relationships have been maintained with family in India, and that he and his wife converse in Gujarati, such that the language and culture will not be entirely unfamiliar to the Appellant’s daughter. It was not suggested that it would be in her bests interest to do anything other than to return to India with her parents.
68. Overall, balancing the Appellant’s right to respect for private life and the public interest, we find that there is no disproportionate interference with the former on the facts of this appeal. The very limited evidence before us of the Appellant’s private life is very clearly outweighed by the significant public interest in this case.

Notice of Decision
For the reasons in the annexed decision, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it was necessary to set aside the decision.

The appeal is remade as follows:

The appeal is dismissed under the Immigration Rules
The appeal is dismissed on human rights grounds.

Sian Davies

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 June 2025

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2020-000023

First-tier Tribunal No : HU/02982/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
25 April 2025
Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

NIRAVKUMAR VISHNUBHAI PAREKH
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Bazini, counsel, instructed by JJ Law Chambers
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 27 March 2025

DECISION AND REASONS
1. This is an appeal by Mr Parekh (“the Appellant”) against the decision of First-tier Tribunal Judge Manyarara (“the Judge”) heard at Hatton Cross on 5 August 2019.
2. The Appellant appeals against the Judge’s decision to dismiss the Appellant’s appeal under the Immigration Rules and on human rights grounds.
3. Permission was granted by First Tier Tribunal Judge F O’Brien on 23 December 2019 on all grounds. The reasons for granting permission were a mistaken recording in the decision that none of the Appellant’s family had attended the hearing to give oral evidence, and failure properly to consider the best interests of relevant children. Permission was also granted to challenge the Judge’s calculation of the Appellant’s tax payments.
4. We find there to be an inaccuracy in the decision regarding attendance at the hearing on 5 August 2019 by the Appellant’s brother. Paragraph 15 records that the Appellant’s brother attended and gave evidence, whereas paragraph 84 states that:
The Appellant’s family members have not attended the hearing to give evidence
5. It is the agreed position of the parties that the Appellant’s wife [14] and brother [15] attended the hearing and gave evidence. Neither was cross-examined. The Appellant’s brother is recorded as having adopted the contents of his letter dated 25 July 2019 as his evidence in chief.
6. This amounted to a material error of law by virtue of:
(a) A failure to give reasons: the decision is inconsistent as to the brother’s attendance, and the issue of whether he attended and gave oral evidence would be relevant to the weight to be given to his written evidence. The brother’s evidence, and therefore the weight to be placed upon it, was material to the Judge’s analysis of the claim under article 8 ECHR;
(b) A failure to take into account relevant evidence, namely, that the Appellant’s brother (and also his wife) had attended the hearing and given oral evidence.
7. This error in relation to analysis of family life enjoyed by the Appellant in the UK contributed materially to an error in the Judge’s approach to s.55 of the Borders, Citizenship and Immigration Act 2009.
8. We also find there to be a material error of law in relation to the Judge’s approach to the issue of dishonesty alleged against the Appellant by the Respondent in relation to the application of the long residence provisions of paragraph 276B of the Immigration Rules.
9. The Respondent relied upon an alleged discrepancy between the amount of income the Appellant had declared within his Tier 1 application to the Respondent, and the amount of income he declared to HMRC in tax returns spanning 2009 – 2013 in support of an allegation of dishonesty.
10. There is complexity in relation to the figures, as the amounts provided by the Appellant relate to different time periods. It is accepted by the Appellant that he under-declared his income to HMRC in the tax years 2009-10, 2010-11 and 2011-12. The extent to which there was a misrepresentation either to the Secretary of State or to HMRC, is not clear.
11. Insofar as the Judge has attempted to identify the correct amounts (and therefore to calculate any difference between the correct amounts and those stated by the Appellant) on the basis of a cumulative assessment, we are satisfied that there was a misunderstanding regarding the interplay between declarations to HMRC for specific tax years, and the periods for which income was declared in applications to the Secretary of State by the Appellant which did not correlate to tax years.
12. The Respondent, upon whom the burden of establishing dishonesty lay before the Judge, was not able to clarify the matters referred to above.
13. This is material to the Judge’s assessment of whether the Appellant had been dishonest and therefore to the application of the Immigration Rules and the wider Article 8 assessment.
Disposal
14. We were invited by the Appellant to remit to the First tier Tribunal. We have considered AEB v SSHD [2022] EWCA Civ 1512 and regard has been had to the overriding objective (Rule 2 of the Tribunal Upper Tribunal) Procedure Rules 2008). Our reason for not remitting the matter to the First-tier Tribunal is that, having heard submissions from the parties in respect of the allegation of dishonesty, it was clear to us that there is a degree of complexity involved. Mr Bazini made lengthy submissions on the issue for which we are grateful. Unfortunately, Mr Tufan was not in a position to assist us. By retaining the matter in the Upper Tribunal, directions can be given to assist the Tribunal. Moreover, having heard Mr Bazini’s submissions on the calculations we are of the view that remittal would not be an efficient use of court time. We indicated that our intention was to re-hear the matter ourselves.
Decision
15. We find there to be a material error of law. We set aside the decision of the First-tier Tribunal to dismiss the Appellant’s appeal
Directions
1. The Appellant and Respondent are to use their best endeavours to agree the figures given by the Appellant to the Respondent for the relevant period and the figures given by the Appellant to HMRC for the relevant tax years, and the figure in relation to any discrepancy in tax liability for the relevant periods.
2. The extent of any agreement between the parties shall be communicated to the Upper Tribunal no later than 5 working days before the hearing.
3. If there is a dispute as to the figures directed above, the extent of, and explanation for, such dispute is to be explained in full by each party in a skeleton argument which shall be filed and served no later than 5 working days before the hearing.
4. If it is expected that the Appellant or any other witness is to give oral evidence, a witness statement must be filed and served within 21 days of this hearing.
5. Mr Bazini indicated that the Appellant intends to instruct an expert independent social worker before the next hearing in respect of the Appellant’s brother’s children. An expert had not been instructed by the time of the hearing before us let alone identified. If there is an application made to adjourn a hearing date issued by the Tribunal, the Appellant is expected to explain to the Tribunal the necessity for such an expert and how it would assist the Tribunal.
6. The parties have liberty to apply to vary these directions.

Siân Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber