Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-000405

First-tier Tribunal No: HU/58101/2021
IA/17750/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 April 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between
FARHAN SULTAN ALAM FARIDI
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Nath, of Counsel, instructed by Archbold Solicitors Ltd
For the Respondent: Ms N Kerr, Senior Home Office Presenting Officer

Heard at Field House on 15 April 2025

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Pakistan born on 19th April 1983. He came to the UK in January 2011 with entry clearance as a student. He had leave in this capacity until 2015, however on 13th August 2014 his leave was curtailed to expire in October 2014 because the sponsorship licence of the British Institute of Technology & E-commerce was revoked. He made an application to remain as a student at another college, Futures College, with a new CAS but while his application was pending that college’s licence was revoked and he was given 60 days to find a new college on 16th April 2015. No further CAS was obtained and his application was refused. The decision was appealed but that appeal was dismissed. The appellant became appeal rights exhausted on 5th December 2016. The appellant contends that he was granted temporary admission and bail at this point but the position of the respondent is that she has no record of this.
2. On 24th October 2016 the appellant applied to remain as a dependent family member of an EEA citizen, namely Kashif Jamil, an Italian citizen and paternal first cousin of the appellant. This application was refused on 3rd June 2017 with no right of appeal. A judicial review was lodged but then withdrawn on the advice of solicitors who made some s.120 submissions / human rights claim submissions dated 17th July 2018. Further human rights and long residence representations dated 12th June 2021 were refused in a decision of the respondent dated 8th December 2021. The appellant’s appeal against this decision was allowed by a First-tier Tribunal Judge in a decision promulgated on 29th December 2022 on Article 8 ECHR grounds because it was found that the appellant had suffered a gross injustice following Sala [2016] UKUT 411 because he was denied an appeal against the refusal of his EEA application, and in this context it was found that he was entitled to be placed in a similar position to that he would have been if he had not been denied this remedy.
3. Permission to appeal was granted by a Judge of the First-tier Tribunal and Deputy Upper Tribunal Judge GA Black found that the First-tier Tribunal had erred in law for the reasons set out in her decision appended at Annex A to this decision.
4. The matter now comes before me to remake the appeal.
Evidence & Submissions – Remaking
5. In short summary the written and oral evidence of the appellant is as follows. He wishes to apply to remain in the UK because he has been in the UK for fourteen years. He says he has always tried to make in-time applications. His studies were frustrated by the revocation of the licences of his two colleges, and at the point in 2015 when he was given a further 60 days to find another college he had been unable to obtain a further CAS. This caused him to lose money, and, he argues, he was let down by the Home Office who revoked the licences and by his legal representatives who were negligent in respect of the judicial review of his EEA refusal as a family member and by telling him not to attend his appeal hearing in 2016. The appellant says that he has no criminal record and contributes in communal and cultural activities in the UK and so is a positive contributor to the community in the UK. He says that he has lost connections with friends and family in Pakistan, and made many British citizen friends who support his application. He said that his witnesses had not attended the Upper Tribunal as his solicitors had not told him they should attend to give oral evidence. The appellant explained that his brother went to live in Canada in 2003 and his parents joined his brother in 2017, he therefore only has distant cousins in Pakistan. He says that these people would not assist him to reintegrate, and that he would not be able to use his MBA because he obtained it in 2013 and has therefore not used this knowledge for a period of twelve years, and since he entered the UK he has not been able to do work appropriate to his qualifications whilst in the UK so he has no relevant/useful work experience. He accepted however that he is able to speak both English (the language in which he gave evidence) and Urdu.
6. The documentary evidence in support of his claim shows that he has an MBA from the University of Wales dated 1st May 2013. In addition he has submitted letters in support confirming that the applicant is well regarded (kind, respectable, hardworking and caring) and enjoys private life ties with the five writers, namely Adnan Niaz, Manel Bouchou Niaz, Syed Nisar Hussain Shah, Imran Saad Qureshi and Fayyaz Ahmed.
7. The respondent submits that the appeal should be dismissed, and relied upon the reasons for refusal letter of December 2021, the review of July 2022, the skeleton argument from the error of law hearing dated 22nd May 2023, and oral submissions from Ms Kerr.
8. It is argued that the appellant cannot succeed in his Article 8 ECHR appeal by relying upon Immigration Rule 276B as he became appeal rights exhausted on 5th December 2016 and so has only ever been lawfully present for five years and eleven months, his subsequent time in the UK having all been without leave to remain. He cannot therefore meet the requirements of the Immigration Rules at paragraph 276B to have been lawfully present for ten years.
9. It is argued that the appellant cannot meet the private life Immigration Rules at Appendix PL by showing that he would have very significant obstacles to integration if returned to Pakistan because he is well qualified, bilingual in Urdu and English and has shown that he can move to another country and make friends and establish a private life as he has done in the UK. It is not relevant that his nuclear family no longer live in Pakistan.
10. If the appeal is looked at more broadly under Article 8 ECHR it is argued that the appellant is not entitled to succeed because he entered as a student, and thus in a capacity where he should have expected to leave the UK at the end of his studies, and there are no exceptional aspects to his case. He can keep in touch with his UK friends by modern means of communication. Little weight can be given to his private life ties given that they have all been formed whilst he has been precariously and unlawfully present, applying s117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002, and weight must be given to the public interest in maintaining effective immigration control.
11. Mr Nath initially said that he relied upon the skeleton argument lodged by the appellant’s current solicitors, Archbold Solicitors Ltd, but when I asked him to identify anything in this document which was correct or relevant he did not take me to any particular paragraph. Mr Nath accepted that given what is found by Upper Tribunal Judge GA Black in her error of law decision, namely that there was no injustice caused by the respondent to the appellant when he was not given a right of appeal in June 2017 and that this matter was not capable of affecting the proportionality assessment, that he could not argue that the appellant had been lawfully present in the UK for ten years, and thus that the appeal could not succeed in accordance with paragraph 276B of the Immigration Rules.
12. Mr Nath argued however that the appellant’s close ties with the UK formed over the past 14 years meant that the appellant would have very significant obstacles to integration if returned to his country of nationality, Pakistan, as he qualifications had become old and had not been used in work due to his period in the UK and he had no family to whom he could turn to for support in establishing himself.
13. Mr Nath argued that the appellant is also entitled to remain when Article 8 ECHR is looked at more generally outside of the Immigration Rules because of his degree of integration in the UK and his having adopted a British cultural identity over his 14 years of residence, and due to his having made numerous friends with whom he has deep attachments. If returned to Pakistan he would be without money or relatives or a support network, and without work.
Conclusions – Remaking
14. The starting point for my decision is that Judge GA Black, found, when making her error of law decision, that there was no injustice caused to the appellant by the respondent when he was refused a EEA residence permit without a right of appeal in June 2017 following the Upper Tribunal decision in Sala. She noted that the respondent simply followed the law as established by the Upper Tribunal, and also that there was no evidence that the appellant would have won his appeal and thus that he had not been able to show that he should be seen as having been in the UK lawfully since the point of the EEA application. There was nothing before me that altered the conclusion that there was no evidence the appellant would have won his EEA appeal had he had one, indeed it is notable that the appellant’s claimed paternal cousin, the Italian citizen Mr Kashif Jamil, did not write a letter in support of this appeal for the appellant and there were no submissions that he remained a dependent family member of this man. There was also no evidence that the appellant had been on temporary admission or bail from the point when he became appeal rights exhausted in December 2016 to the point of time when he made his EEA application/ it was refused. In conclusion Judge GA Black found that the denial of an appeal against the EEA residence permit application is not a matter capable of affected the proportionality assessment under Article 8 ECHR.
15. In this context Mr Nath rightly did not pursue a submission that the appellant had been lawfully present for ten years, and thus could succeed in his Article 8 ECHR human rights appeal by reference to paragraph 276B of the Immigration Rules on the basis of ten years lawful residence. The evidence before me was that the appellant had been lawfully present from January 2011 to December 2016 as a student/ appealing a refusal of leave as a student and thus for a period of five years and 11 months. I find that the rest of his 14 year and three month stay in the UK, from 5th December 2016 to the present day, has been without leave to remain, and thus he has been present in the UK during this time as an overstayer.
16. It was argued by Mr Nath that the appellant was entitled to succeed in his appeal by reference to Appendix PL of the Immigration Rules on the basis that he would have very significant obstacles to integration if returned to Pakistan. I do not find that this is the case for the following reasons. The appellant is a healthy 41 year old man who has an MBA from the University of Wales awarded in May 2013. He has managed to support himself whilst in the UK, either from friends, family or by working. Given what is said by his friends in their letters about him being hard working I find that it is probable that he has been supporting himself, in part at least, in the UK by working. I find that he would be able to support himself in the same way if returned to Pakistan, where he would have the advantage of being a lawfully present citizen. He retains the ability to speak Urdu, in addition to having good English, has higher qualifications and a driving licence. The appellant has shown he is able to make friendships on moving to a new country, as evidenced by the five UK based people who have written in support of his appeal, and so I find he would be able to make a new circle of friends if returned to Pakistan. Whilst he may have no immediate family remaining in Pakistan to provide accommodation I do not find that this would constitute a very significant obstacle to integration if he were returned there: he would be able to access sufficient funds for housing and to support himself in the same way as he has done in the UK. There was no country of origin evidence placed before me to support a contention that obtaining work and accommodation would be more difficult in Pakistan than in the UK. I find therefore that the appellant would be able to achieve a satisfactory level of integration/ private life on return to Pakistan.
17. It follows that the appellant cannot succeed in this appeal by reference to the Immigration Rules, but I go on to consider his appeal more broadly by conducting an Article 8 ECHR balancing exercise. In favour of the appellant is the fact that he has lived in the UK for 14 years, almost six of which were lawfully, and has private life ties in this country, and in particular has five close friends, who have written in support of his remaining in this country as a respectable and hardworking person. Neutral matters are that he speaks English and appears to be financially independent. Whilst he has raised complaints against his solicitors in the UK none of these were properly particularised and ultimately his remedy against them would be complaints and claims for damages for professional negligence if he has been wrongly advised. I find in these circumstances that errors by solicitors are not factors to be weighed in an Article 8 ECHR proportionality assessment. Against the appellant is the fact that he cannot meet the requirements of any provision of the Immigration Rules, and thus that his removal is in the public interest in the interest of maintaining immigration control. I have also found that he would be able to reestablish himself and have a satisfactory private life in Pakistan. Further little weight can be given to his private life ties, including his period of residence and his five close friends, applying s.117B(4) and (5) of the Nationality, Immigration and Asylum Act 2002, as these private life ties have all been formed whilst he has been precariously and then unlawfully present in the UK. This means that there is ultimately nothing of any significant weight in the appellant’s favour, and thus I conclude, balancing all of the evidence before me, that the appellant’s removal is a proportionate interference with his right to respect for private life.

Decision:

1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2. Deputy Upper Tribunal Judge GA Black set aside the decision of the First-tier Tribunal.

3. I re-make the decision in the appeal by dismissing it on Article 8 ECHR grounds.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15TH April 2025

ANNEX A: ERROR OF LAW DECISION

DECISION AND REASONS
1. This is an error of law decision. The Secretary of State is the Appellant in this matter and I shall refer to her as “the SSHD” and to the respondent as “the Claimant”.
2. The Claimant is a citizen of Pakistan and was born on 19.4.1983. He claimed that he established 10 years lawful residence under paragraph 276B. It is helpful to set out a summary of the chronology of the Claimant’s immigration history. The Claimant entered the UK in January 2011 with entry clearance as a student. His student leave was granted until 2015. A letter of curtailment was sent to him on 13.8.2014 for leave to expire in October 2014. An application was made for further leave with a new CAS but while that was pending the college’s licence was revoked. No further CAS was obtained and the application was refused. That decision was challenged by the appellant and dismissed. He became appeal rights exhausted on 5.12.2016 and he was issued with immigration bail and temporary admission. The Claimant then applied as a dependent family member of an EEA citizen, which was refused on 3.6.2017 without a right of appeal. Judicial Review was pursued but withdrawn following advice from his solicitors.
3. In a decision promulgated on 29th December 2022 (FTJ Munonyedi) (“FTT”) the Claimant’s appeal was allowed on human rights grounds. The FTT accepted that argument put on behalf of the Claimant that he had suffered an injustice (no right of appeal) because of the decision in Sala [2016] UKUT 411 which was subsequently overturned (Khan v SSHD [2017] EWCA Civ 1755). The FTT accepted that as a result the Claimant ought to have been placed in the position had Sala not been decided and thus given a right of appeal against the refusal of EEA application. The FTT [27] accepted the argument following the principles in Ahshan V SSHD (Rev 1) [2017] EWCA 2009 and Khan, Islam & Hussain v SSHD [2018] EWCA 1684, notwithstanding that those cases were TOIEC matters. The FTT found the Claimant to be a credible witness. The FTT found that the appellant had suffered a “gross” injustice [30] and this amounted to an exceptional case following on from which his removal would amount to a breach of Article 8. The FTT found that he should be afforded the opportunity to appeal the EEA decision and/or apply for further leave.

Grounds of appeal
4. The SSHD argued that the FTT failed to give adequate reasons for findings on a material matter. The FTT in essence carried out a free standing Article 8 consideration as to unfairness in relation to not being granted a right of appeal in previous proceedings. The Claimant did not meet the requirements under paragraph 276ADE and the FTT failed to consider requirements under section 117B Nationality, Immigration & Asylum Act 2002 (as amended).

Permission to appeal
5. Permission to appeal was granted by UTJ L Smith on renewal. Whilst accepting that the FTT made reference to section 117B, the FTT arguably erred in failing to explain how the proportionality assessment was conducted having regard to a) the fact that the appellant had no leave to remain in the UK since 2017 and could not meet paragraph 276AB, b) the appellant could not meet paragraph 276ADE(1)(vi), c) his precarious and unlawful status meant that his private life carried little weight and d) that he could not meet the Rules weighed in the public interest. UTJ Smith expanded on the scope of the grant in lengthy and detailed observations in paragraphs 3-6 considering the historical injustice point.

Skeleton argument dated 22.5.2023
6. In a skeleton argument submitted on the day before the hearing, the SSHD sought permission to amend her grounds of appeal under the UT Procedure Rules 2008 5(3) in light of the observations made by UTJ Smith. She sought to argue the point that the FTT erred in wrongly applying the principles in Ahsan to the appellant’s circumstances following Sala which were not applicable in the appellant’s circumstances. Mr Terrell indicated that he intended to make an application to amend the grounds of appeal.

The hearing
Adjournment application
7. At the hearing before me Mr Maqsood made an application for an adjournment under Rule 23 (1)(a) and applied to set aside the grant of permission to appeal by UTJ Smith. He reiterated the arguments drawing an analogy with the ETS cases and alternatively argued that the Claimant would be able to make up 10 years with the temporary admission/ bail accepting this was within the discretion of the SSHD but which had been an issue that the FTT failed to determine. He argued that UTJ Smith had granted permission on grounds not actually pleaded by the SSHD in paragraphs 3-6 of the permission. The UTJ was mistaken in stating that the Claimant had been granted a right of appeal regarding the EEA decision. Mr Maqsood took the view that there was a procedural irregularity (Rule 43), although he accepted that there was controversy as to whether a grant of permission could be viewed as a disposal of the proceedings. In any event there ought to be a new decision made on permission based solely on the grounds as pleaded. To that end an application could be made to UTJ Smith to set aside her decision.
8. Mr Terrell opposed the argument which was unclear and whose prospects of success were at most dubious. The UTJ had made observations in paragraphs 3-6 which did not detract from the terms of the grant set out in the preceding paragraphs. No procedural irregularity had been identified. Rule 43 was not applicable to a grant of permission which in any event had been granted in March 2023 and the Claimant had ample time in which to have raised the point.

Decision on adjournment application
9. I refused the application for an adjournment and to set aside of the grant of permission. The crux of the grant of permission was set out by UTJ Smith in the first two paragraphs and the remaining paragraphs were observations albeit detailed and did not amount to distinct grounds of appeal that had not been pleaded. The decision as to error of law was for this Tribunal to determine and it was up to the Tribunal to have regard to those observations or not. I took the view that the grounds as pleaded necessarily incorporated all of the points raised in the grant terms and observations in the permission as the central issue was the question of unfairness.
10. Having given my decision I indicated to Mr Terrell that there was no need for him to make any application for amendment of the grounds in light of my stated view.

The EOL hearing
11. The FTT found that the Claimant suffered a gross injustice following Sala because he had not been granted a right of appeal against the refusal of his EEA application [ 30-31]. Sala was subsequently overturned. The FTT accepted the Claimant’s argument that he ought therefore to be placed in the position whereby he be given a right of appeal or put in a position to exercise a right of appeal. The FTT accepted the Claimant’s argument that his situation was analogous to persons who had been found not to be dishonest in their TOIEC applications, following Ashan & Khan. The FTT treated the injustice as the main factor carrying weight in the proportionality assessment under Article 8.
12. I am satisfied that the FTT erred in finding that the Claimant suffered a gross injustice and in adopting the principles applied in TOIEC appeals. At the time of his EEA application Sala was a statement of the correct law and that law subsequently changed. The SSHD applied the law applicable at the time and so it cannot be argued that the SSHD caused any injustice as is the case in TOIEC appeals where the SSHD had acted wrongly. In any event the Claimant would not have gained any real advantage in being returned to that position of having a right of appeal, as there is no guarantee that had he been given a right of appeal that he would have been successful. I conclude that the FTT erred in finding that there was an injustice caused to the Claimant. I further conclude that any purported injustice was not capable of affecting the proportionality assessment under Article 8 (Patel (historic injustice; NIAA Part5A) India [2020] UKUT 351 (IAC) – see headnote and 46-47). This was not a case where the SSHD formed an incorrect view of the Claimant’s behaviour which turns out to be mistaken.
13. I find some merit in the submissions made by Mr Terrell that the Claimant could have submitted a late application, asked for a reconsideration after Sala was overturned in Khan or sought to make a fresh application, neither of which he had done and which could have given him a right of appeal. The Claimant was therefore in a position following the clarification of the law in Khan to regain what he had lost namely a right of appeal. It was acknowledged that if he was given a right of residence under EEA Regulations that could be treated a lawful residence but that is entirely speculative. It is far from certain that the Claimant would have been granted a residence card.
14. I further conclude that the FTT failed to clearly explain why weight was placed on that injustice factor as determinative of the proportionality assessment and failed to consider factors under section 117B. The FTT concluded that the Claimant failed to comply with paragraph 276B as to 10 years lawful leave and similarly failed to meet paragraph 276ADE as he provided no evidence of very significant obstacles to his reintegration in Pakistan [15-17]. The FTT refers to section 117B 2002 Act at [33] but fails to specifically consider the relevant factors and /or to explain why the weight is in favour of the Claimant as against the public interest. There is no consideration of the differing factors or any balancing exercise. This amounts to an error in law.
15. The argument put by Mr Maqsood that any error was not material because the Claimant had established 10 years lawful residence on the basis of his temporary admission/bail lacks merit. The SSHD has a discretion to grant 6 months leave in order for an application under paragraph 276B to be made. Mr Maqsood argued that this is an alternative route for the Claimant’s appeal to be allowed. The SSHD has not exercised any discretion in this regard and it is not open to the Tribunal to do so.

Notice of Decision
There is a material error of law in the decision which shall be set aside. The appeal by the SSHD is allowed.

GA Black

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

31st May 2023