UI-2023-001263 & UI-2023-001264

• Status of case: Unreported
• Hearing date: 09 Dec 2025
• Promulgation date: 08 May 2026
• Publication date: 26 May 2026
• Last updated on: 26 May 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2023-001263
UI-2023-001264

First-tier Tribunal No: HU/57985/2022
HU/54454/2021
LH/00871/2022
IA/11276/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of May 2026

Before

THE HONOURABLE MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE REEDS

Between

ASIM ALI
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Skinner, Counsel instructed on behalf of the Appellant
For the Respondent: Ms McKenzie, Senior Presenting Officer on behalf of the Respondent

Heard at Field House on 9 December 2025
and written submissions submitted thereafter on 23 December 2025 and 2 January 2026


DECISION AND REASONS
(1) Introduction
1. The Appellant appeals, with permission granted by a First-tier Tribunal Judge, against the decision of First-tier Tribunal Judge Brannan (“the FtTJ”) dated 8 February 2023, by which the FtTJ dismissed the Appellant’s appeal against the Respondent’s decision of 8 February 2023 to refuse his application for entry clearance to the United Kingdom (“the UK”).
2. The Appellant is in Pakistan. He was in the UK from 2008 to 2019. As we will explain, he contends that his treatment towards the end of his stay in the UK entitles him to leave to enter the UK.
(2) Background
3. The background to the appeal is set out in the evidence contained in the consolidated hearing bundle (“CB”), the separate judicial review bundle (“JRB”) and the decision of the FtTJ.
(2)(a) The Appellant’s Entry into, and Early Years in, the United Kingdom
4. The Appellant is a national of Pakistan, born on 17 October 1985. On 27 June 2008 he was granted leave to enter the UK as a student until 30 November 2009.
5. On 16 March 2010 he was granted leave to remain in the UK as a Tier 4 (General) student until 4 April 2011, followed by successive periods of leave to remain until 30 September 2015 on the same basis.
6. On 28 September 2015 the Appellant submitted an application for leave to remain in the UK. The basis of the application is set out in his letter (p80 JRB) and was that he had entered the UK as a student on 15 August 2008 at RIMS College. His last Tier 4 sponsor was London College of Computing and Management, for a diploma in strategic business research starting in June 2013 and finishing in May 2015. His last sponsor licence was revoked, but he did not receive a revocation letter. He had applied to different universities for a DBA course, but they did not give any satisfactory answers. He stated that he still wanted to continue his studies, but that he could not get a Confirmation of Acceptance of Studies (“CAS”) letter, due to the closure of his last college. His application was for more time so that he could enrol on a new course of study at university level.
7. He subsequently varied his application by making a Tier 2 (General) application on 11 November 2015 in respect of employment as an accounts manager with London Travel Centre Ltd (“LTC”). The basis of the application is set out in a letter dated 12 November 2015 (p83 JRB). He said that his circumstances had changed and that he had been given a valid Certificate of Sponsorship (“CoS”) from a registered sponsor. The letter referred to him working there as an accounts manager with a salary, maintenance and accommodation (p97 JRB). Another letter from LTC dated 2 November 2015 provided a start date of 2 January 2016 (p441 JRB).
8. Following an unannounced visit on 20 April 2016 by the Respondent’s sponsor compliance team to LTC, LTC’s licence was suspended on 27 May 2016 and, following written representations made by LTC on 16 June 2016, its licence was revoked on 27 June 2016.
9. The Applicant’s application was refused on 14 July 2016 on the grounds that he did not have a valid CoS, it having been cancelled (p74 JRB).
(2)(b) The Administrative Reviews
10. On 29 July 2016 the Appellant applied for an administrative review of the decision of 14 July 2016 (p 113 JRB). On 19 August 2016 that application was dismissed (p62 JRB).
11. On 8 September 2016 the applicant applied for an administrative review of that decision on the basis of procedural unfairness, asserting that the Respondent should have provided him with a 60-day grace period in which to find a new sponsor (p121 JRB).
12. On 5 October 2016 the Respondent refused the second application for an administrative review (p57 JRB).
(2)(c) The Application for Judicial Review
13. The Appellant then lodged a judicial review claim on 7 November 2016, seeking to challenge the Respondent’s decision to refuse his application for leave to remain on the grounds that the decision was procedurally unfair. The Appellant asserted that the principles in Patel (revocation sponsor licence – fairness) India [2011] Imm. A.R. 647; [2011] UKUT 211 (“Patel”) and Thakur (PBS decision – common law fairness) Bangladesh [2011] Imm. A.R. 533; [2011] UKUT 151 (“Thakur”) applied equally to Tier 2 migrants as they did to Tier 4 migrants, such that the Respondent ought to have provided him with a period of 60 days in which to find a new sponsor.
14. The position of the Respondent, as set out in the summary grounds of defence, was that the principles in Patel only applied to Tier 4 migrants and did not extend to Tier 2 migrants. Permission to apply for judicial review was refused on 9 February 2017. The Appellant renewed his application, the hearing of which was adjourned to await the decision of the Upper Tribunal in Islam and Pathan (on the application of) v the Secretary of State for the Home Department (Tier 2 licence – revocation – consequences) [2017] UKUT 369 (“Pathan (UT)”). In that decision, UTJ Allen determined that the principles in Patel relating to procedural unfairness and the 60 day “grace period” did not extend to Tier 2 migrants.
15. Following an oral hearing, the Upper Tribunal granted permission to apply for judicial review on the basis that:
“the decision was arguably procedurally unfair and therefore unlawful in failing to provide the applicant with an opportunity to find an alternative employer sponsor before refusing his application for leave to remain as a Tier 2 migrant.”
16. The Respondent filed detailed grounds of defence (p29 JRB), relying on Pathan (UT).
17. The Appellant’s application for permission to apply for judicial review came before UTJ Kebede, who dismissed the application.
18. On 12 February 2018 the Appellant applied for permission to appeal to the Court of Appeal (p187 CB). This application was stayed behind the lead case of Pathan.
19. On 2 October 2018 the Court of Appeal handed down judgment in Pathan [2018] 4 WLR 161; [2018] EWCA Civ 2103 (“Pathan (CA)”), dismissing the appeal against the decision in Pathan (UT).
20. The Appellant applied for a stay of his appeal, but this was refused (p 69 CB) and on 14 December 2018 the Court of Appeal refused permission to appeal against the decision of UTJ Kebede (p70 CB).
21. The Appellant remained in the United Kingdom and, during that time, he was involved in a motorcycle accident, which led to hospital treatment and an operation for a tibia fracture on 29 July 2019 (p124 CB) and for an Ilizarov frame removal on 28 October 2019. On 5 November 2019 the Appellant departed the UK for Pakistan.
(2)(d) The Supreme Court Decision and the Appellant’s Application
22. On 23 October 2020 the Supreme Court handed down judgment in R (Pathan) v Secretary of State for the Home Department [2020] 1 WLR 4506; [2020] UKSC 41 (“Pathan (SC)”). The Supreme Court reversed the Court of Appeal’s decision and held, by a majority, that it was procedurally unfair for the Respondent to fail to give prompt notice to an individual who had made an application for leave to remain as a Tier 2 migrant that his sponsor’s licence had been revoked.
23. On 6 January 2021 the Appellant applied for entry clearance as a visitor to re-enter the UK (p 134 CB) on the grounds of his private life, arguing that he had suffered a “historic injustice”, as the Respondent’s decision of 14 July 2016 was unlawful in light of Pathan (SC), and that preventing him from returning to the UK would disproportionately interfere with his right to private life (p60 CB).
24. The Respondent refused the Appellant’s application in a decision dated 4 March 2021 (p48 CB).
(2)(e) The Appeal to the First-tier Tribunal
25. The Appellant appealed to the First-tier Tribunal (“the FtT”), with reference HU/54454/2021. At a preliminary hearing to deal with jurisdiction on 26 July 2022, the Respondent applied for time to file a reconsideration of her decision. The Appellant did not oppose this and the reconsideration took the form of her decision of 17 October 2022, which was to the same effect as her decision of 4 March 2021. The Appellant filed a further appeal against this decision, with reference HU/57985/2022.
26. On 3 February 2023 the appeals were heard by the FtTJ, who determined that the Appellant had made, and the Respondent had considered, a human rights claim and that the FtT therefore had jurisdiction to hear the appeals. However, the FtTJ held that Article 8 was not engaged, because he considered that he was bound to so to hold by the decision of the Court of Appeal in Secretary of State for the Home Department v Abbas [2018] 1 WLR 533; [2017] EWCA Civ 1393 (“Abbas”), in which it was said, at [27], that there was no obligation on an ECHR State to allow an alien to enter its territory to pursue a private life.
(3) The Appeal to the Upper Tribunal
27. On 7 March 2023 the Appellant applied for permission to appeal against the FtTJ’s decision. Since there were two appeals to the FtT, there were two appeals to the Upper Tribunal, but the issues in each appeal were the same and we will treat them as one appeal.
(3)(a) The Grounds of Appeal
28. The grounds of appeal are as follows:
(1) It is submitted that the present case is not one which falls within the scope of Abbas. The Appellant in Abbas was a Pakistani national who had never lived in the UK previously. He sought entry to the UK to visit his uncle and grandmother for a period of four weeks. It was in that context that the Court of Appeal held, at [27], that there was no obligation on the UK to permit Mr Abbas to enter its territory to pursue his private life.
(2) In the present case, the Appellant had lived in the UK for a continuous period of 10 years, during which he had established a private life (as was accepted by the FtTJ at [18]). He was seeking entry to the UK to resume his private life, in circumstances where he found himself outside of the UK due to the unlawful operation by the Respondent of her immigration functions.
(3) It is submitted that, in the particular circumstances of the Appellant’s case, the FtTJ was wrong to conclude that Abbas was a complete answer to the question of whether the Appellant’s Article 8 rights were engaged.
29. Permission to appeal was granted by FtTJ Dixon on 19 April 2023. The Respondent filed a Rule 24 response and also cross-appealed against the decision of the FtTJ to find that the Respondent had accepted and considered a valid human rights claim.
(3)(b) The First Decision
30. UTJ Perkins heard the appeal on 14 June 2023 and his decision was promulgated on 27 June 2024 (p18-20 CB). He held that the FtTJ had been right both to hold that the FtT had jurisdiction and to dismiss the appeal.
31. On 8 July 2024 the Appellant applied for permission to appeal against that decision to the Court of Appeal. The grounds of appeal were that UTJ Perkins had erred in law in failing to take any account of the Court of Appeal’s judgment in Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] 1 WLR 5097; [2024] EWCA Civ 372 (“Ali”), which had been handed down on 17 April 2024, after the hearing of the appeal, but two months before the UTJ Perkins promulgated his decision. It was submitted that the judgment in Ali was directly relevant to the Appellant’s argument that Article 8 was engaged, notwithstanding Abbas. The Court of Appeal stated in Ali, at [34], that in Abbas:
“The Court of Appeal was not concerned with the scenario in which the applicant has already established a private and/or family life here, and it was unnecessary for it to address that scenario in order to be able to determine the point of principle identified as arising on the appeal. Burnett LJ's analysis relates solely to the situation in which the applicant has no established Art 8 rights within the UK.”
32. The Court of Appeal in Ali also held that the case of SD (British citizen – entry clearance) Sri Lanka [2020] UKUT 43 (IAC), which UTJ Perkins had relied on, was wrongly decided.
33. On 25 March 2025 UTJ Sheridan directed the parties to provide submissions on the question whether UTJ Perkins’ decision should be set aside and reheard in the Upper Tribunal pursuant to rule 45(1)(a) of The Tribunal Procedure (Upper Tribunal) Rules 2008. The parties agreed to the setting aside of the decision and on 23 April 2025 UTJ Sheridan set aside UTJ Perkins’ decision.
(3)(c) The Hearing
34. At the outset of the hearing before us, Ms McKenzie applied for an adjournment of the hearing. She stated that on 2 September 2025 the Respondent had received an email setting out that the hearing had been adjourned and relisted to a date in March 2026. However, she accepted that, whilst there had been some initial confusion over the date, later in September 2025 the Tribunal had sent out a fresh hearing notice, with the hearing listed on 9 December 2025. She said that this appeal had only been allocated to her at a late stage and also that the Appellant’s skeleton argument had only been received on the Friday before the hearing, which did not give sufficient time for any response by way of a skeleton argument. Mr Skinner opposed the application. Ms McKenzie confirmed that she was not saying that she was unable to proceed.
35. Having considered these submissions, we refused the application for an adjournment. Although there had initially been some confusion regarding the listing of this appeal, it had been clear since 9 September 2025 that the hearing was fixed for 9 December 2025. The relevant issues had already been crystallised by the order of UTJ Sheridan, made with the Respondent’s consent. While the Appellant’s skeleton argument was filed late, it contained nothing new. Since Ms McKenzie confirmed that she was able to proceed, we were satisfied that it was in the interests of justice to continue and we therefore refused the adjournment application.
36. However, we indicated that there might be areas in which we would be assisted by further written submissions after the hearing. In the event, we allowed the parties to file written submission after the hearing in relation, in particular, to Abbass, Ali and Pathan (SC).
37. We also indicated that, in order to minimise delay, we would hear the arguments advanced on all issues, including jurisdiction, error of law and, if an error of law were to be found, the re-making of the FtTJ’s decision. Both parties were content to proceed on that basis. We also heard oral evidence from the Appellant’s witness, Mr Basim Ali, who had provided a witness statement dated 20 June 2022 (p165 CB).
38. For the purposes of the hearing, we were provided with a consolidated bundle of 247 pages. We indicated that there were documents missing from the consolidated bundle, including the documents which were before the Upper Tribunal in the judicial review proceedings and also a copy of the Respondent’s reconsidered decision of 17 October 2022. We are grateful to the Appellant’s solicitors for uploading the judicial review bundle to the electronic file and also providing a hard copy of the missing decision of 17 October 2022.
39. Mr Skinner on behalf of the Appellant had filed and served his skeleton argument dated 5 December 2025. He relied upon the contents of that document alongside his oral submissions. There had been no skeleton argument filed on behalf of the Respondent, but Ms McKenzie was able to provide oral submissions on all issues. It is not necessary to set out those submissions in any detail as they are a matter of record, and we confirm that we have had regard to those submissions in reaching our analysis on the issues raised in this appeal and as considered below.
(4) Jurisdiction
(4)(a) Jurisdiction: the Law
40. The grounds on which a person may appeal to the FtT from a decision taken by the Respondent are limited. Section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) has, since its amendment by the Immigration Act 2014 with effect from 20 October 2014, enabled a person to appeal to the FtT where the Secretary of State has decided to refuse his human rights claim. By section 84(2) of the 2002 Act, as amended, such an appeal must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998 (“the 1998 Act”). Section 6(1) of the 1998 Act provides that:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
41. Section 113(1) of the 2002 Act has, since its amendment with effect from the same date, defined a “human rights claim” in this way:
““human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention),”
42. In MY (refusal of human rights claim) Pakistan [2020] Imm. A.R. 906; [2020] UKUT 89 (IAC) (“MY”), the Upper Tribunal reviewed the appellate regime under Part 5 of the 2002 Act and summarised its conclusions at [81] as follows:
“In summary:
(1) a human rights claim is defined by section 113 of the 2002 Act;
(2) the Respondent’s assessment of whether a claim satisfies that definition is not legally determinative;
(3) the Respondent’s Guidance is, however, broadly compatible with what the High Court has found to be the minimum elements of a human rights claim;
(4) the fact a human rights claim has been made does not mean that any reaction to it by the Respondent, which is not an acceptance of the claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim, generating a right of appeal to the First-tier Tribunal;
(5) the Respondent is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal;
(6) in view of (d) and (e) above, there is no justification for construing section 82(1)(b) of the 2002 Act otherwise than according to its ordinary meaning, which is that the Respondent decides to refuse a human rights claim if she:
(i) engages with the claim; and
(ii) reaches a decision that neither the claimant (C) nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right.”
43. Neither party referred to the Court of Appeal’s decision in MY (Pakistan) v Secretary of State for Home Department [2021] EWCA Civ 1500. However, we do not find that there is anything inconsistent in that decision with what we have set out above.
(4)(b) Jurisdiction: the FtTJ’s Decision
44. The FtTJ set out the argument advanced on behalf of the Appellant as follows. The Appellant had made an application for entry clearance for a visit visa. The only form which the Appellant could use to make that application was a visit visa application form, but the Appellant had particularised the basis of his human rights claim in the covering letter which accompanied the application. It was submitted that, although the Respondent considered the Appellant’s application under the visit visa provisions of the Immigration Rules, despite the representations set out in the Appellant’s covering letter, she engaged with and refused the human rights claim raised in the Appellant’s application at the third bullet point of the decision letter in the following terms:
“You have submitted a letter from ATM Law. I have read your legal representatives thoroughly. This document states that you intend to apply for LOTR from outside the UK on human rights grounds. I have carefully considered your Article 8 right to a family life and consider that refusing your entry clearance is justified and does not impact on your ability to conduct a family life as you have done up until now. There do not appear to be any insurmountable obstacles preventing you doing so. Whilst I have taken your circumstances into consideration with this decision, they do not outweigh my concerns about your intentions in wishing to enter the UK…”
45. The Respondent’s position was that the decision made in respect of the visit visa application did not engage with the substance of the human rights claim.
46. The FtTJ rejected this argument for the reasons set out in [9]-[10], which we summarise as follows:
(1) the submissions ignored the words in the decision, “I have carefully considered your Article 8 right to a family life and consider that refusing your entry clearance is justified…”;
(2) this was the Respondent engaging with the claim and deciding that it did not result in a right of entry;
(3) there is no other sensible reading of it; and
(4) the Respondent could have refused to consider the human rights claim on the basis that it was made in a visit visa application, but instead she chose to engage with the human rights claim and to refuse it.
47. The FtTJ therefore reached the conclusion that the FtT had jurisdiction.
(4)(c) Jurisdiction: Submissions
48. As we have said, the issue of jurisdiction was raised by way of a cross-appeal in the Rule 24 response filed by the Respondent, who submitted that the Entry Clearance Officer did not accept a human rights claim.
49. The Respondent submitted that it is evident from the terms of the refusal letter that the Entry Clearance Officer did nothing more than acknowledge that representations had been made under Article 8 and that he did not refuse a human rights claim, since the wording of the refusal letter is clear that it was a refusal of entry clearance under the visitor route.
50. Mr Skinner relied upon his skeleton argument at paragraphs 11-13 and on the reasons given by both the FtTJ and UTJ Perkins for holding that the FtT had jurisdiction because this was a refusal of a human rights claim. He directed our attention to the covering letter submitted with the application and submitted that the basis of the application was his Article 8 rights and that the decision maker plainly engaged with the substance of his claim.
(4)(d) Jurisdiction: Decision
51. We are satisfied that the FtTJ was correct to find that there was jurisdiction to hear the appeal, primarily for the reasons which he gave.
52. It does not seem to be in issue that the Appellant had applied for a visit visa because there was no other form on which the human rights claim could be made. The application form described the covering letter as “essential reading” (pp138, 147 & 148 CB; and see p150). The covering letter was entitled “Human rights claim, made on basis of Article 8 ECHR - outside the Immigration Rules.” It began “We write on behalf of our above named client (“the Applicant”) to make a human rights claim, based on his right to private life in the United Kingdom …” There can be no doubt that the Appellant made a human rights claim. The issue is whether the Respondent “decided to refuse” that claim.
53. The question whether the Respondent has decided to refuse a human rights claim must be judged by reference to the letter said to constitute that decision. As the decision in MY explains, the fact that a human rights claim has been made does not inexorably lead to a conclusion that there has been a refusal of such a claim, so as to give rise to a right of appeal, when the Respondent decides not to grant entry clearance.
54. We therefore turn to the decision letter of 17 October 2022. The covering letter states, “in relation to this decision, there is no right of appeal or right to an administrative review.” However, that cannot be viewed in isolation and it is necessary to consider the substance of the decision reached.
55. In our judgment, the substance of the decision letter treated the Appellant’s claim as a human rights claim and constituted a decision to refuse that claim. This appears from the paragraph quoted by the FtTJ. In addition, the decision letter went on to refer to “insurmountable obstacles”, which is a phrase used within Article 8 jurisprudence, and later stated, “furthermore I am satisfied that Article 8 is a qualified right and this refusal is in accordance with the law in line with Article 8 ECHR.”
56. It is right to acknowledge that the decision also stated, “therefore the decision to refuse your Visa application is not a refusal of human rights claim and there is no right of appeal against this refusal.” However, as explained in MY, the Respondent’s assessment of whether a human rights claim has been made is not determinative. We are satisfied that, on a sensible reading of the decision letter, the Respondent engaged with the human rights claim and refused it. In reaching this conclusion, we have taken account of both the substance of the decision and the language used, including express references to the “Article 8 right” to private life, to having undertaken a “careful consideration” of the Article 8 right and to “justification” in the context of Article 8.It follows that the Respondent has not demonstrated any arguable error of law in the decision of the FtTJ on the issue of jurisdiction. We are satisfied that he made a decision which was reasonably open to him on the facts of the case and in accordance with the law.
(5) Error of Law
(5)(a) Error of Law: Submissions
57. We now turn to the grounds of challenge to the substance of the FtTJ’s decision. We note that, following the decision to set aside UTJ Perkins’ decision, the original grounds of challenge have not been amended. Nonetheless, we are content to address the appeal by reference to the matters raised in the original grounds, as supplemented by the representations made to the Upper Tribunal in relation to the question whether UTJ Perkins’ decision should be set aside.
58. Mr Skinner relied on Ali and, in particular, on [34], which we have already quoted.
59. He submitted that the FtTJ was plainly wrong in law to hold that “there is no obligation on an ECHR state to allow an alien to enter its territory to pursue a private life“, since the FtTJ relied upon a misreading of Abbas, as explained by the Court of Appeal in Ali.
60. He further submitted that, in view of this error of law, the FtTJ was accordingly also wrong in law to hold that he was required by authority to find that Article 8 was not engaged in this case. Since the FtTJ did not then proceed to consider whether, as a matter of fact, the Appellant did enjoy a private life in the UK, it follows that these errors of law were material. In those circumstances, he invited the Tribunal to set aside the decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
61. Ms McKenzie relied upon the matters raised in the Rule 24 response and submitted that the Appellant clearly had no private life in the United Kingdom at the date the FtTJ considered the appeal and that the Appellant cannot rely upon a historic private life to establish that any decision was disproportionate.
62. She also submitted that the grounds of appeal and grant of permission failed to consider [21] of the FtTJ’s decision, where the FtTJ made an unchallenged finding that the Appellant had an alternative remedy, which was to seek entry to the UK under a skilled worker visa. Accordingly, she submitted that the FtTJ was entitled to find that there was no breach of the Appellant’s Article 8 rights.
(5)(b) Error of Law: Decision
63. We are satisfied that the FtTJ materially erred in law. In [15] the FtTJ addressed Abbas and, whilst he accepted that the facts in Abbas were very different from those in the present case, he found that the legal principle from that decision was as follows:
“the law of precedent requires me not to find cases in fact like those before me and reach the same decision, but to find the law as pronounced by the superior courts. I am bound by any ratio decidendi and must treat as persuasive obiter dicta. The legal principle in Abbas is this: There is no obligation on an ECHR state to allow an alien to enter its territory to pursue a private life. I am bound by that authority and consequently must find Article 8 not to be engaged.”
64. The FtTJ did not have the advantage of the decision of the Court of Appeal in Ali. In that decision, Andrews LJ said that the ratio of Abbas had been incorrectly stated by the Upper Tribunal in SD (Sri Lanka) when the Upper Tribunal said that “the right to respect for private life was not engaged in entry clearance cases”. Andrews LJ said, at [40] that:
“The ratio of Abbas is that article 8 does not oblige a state to allow a non-national to enter its territory in order to develop a private life there.”
65. Then in [59], Andrews LJ said:
“In my judgment, depending on the facts, the refusal of entry clearance could interfere with a person’s private life developed in the UK sufficiently to engage article 8, and Abbas does not decide the contrary. It is unnecessary for the purposes of this appeal to decide anything more than that it was open to this claimant, as a settled migrant, to contend that the refusal of re-entry to resume his private life within the UK was disproportionate in all the circumstances. There is no need for the court to consider the position of an individual whose private life within the U Kis of a more tenuous nature.”
66. We are satisfied that the FtTJ applied an overly broad statement of the law and that, relying on that statement of the law, he concluded that he must find that Article 8 was not engaged. We agree with Mr Skinner that the error was material, because the FtTJ did not proceed to consider, or to make any findings on, whether Article 8 was engaged on the particular facts of this case. Ms McKenzie submitted that the Appellant had no private life in the UK, but this was not assessed by the FtTJ, because of his decision that he was obliged by Abbas to find that Article 8 was not engaged. We set the FtTJ’s decision aside, while preserving his finding in relation to jurisdiction.
(6) Re-Making
(6)(a) Re-Making: The Statutory Framework
67. Article 8 of the ECHR provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
68. The burden of proof lies upon the Appellant to establish, on a balance of probabilities, a breach of Article 8 and this is to be assessed as at the date of the hearing.
69. The first issue in the present case is whether Article 8 is engaged. If Article 8 is engaged, then the refusal of entry clearance constituted an interference with the Appellant’s rights under Article 8(1) and it is necessary to consider whether that interference was justified under Article 8(2). For that purpose, and although this is a refusal of leave to enter case rather than a removal case, it is appropriate to consider the five questions set out by Lord Bingham in R (Razgar) v Secretary of State for the Home Department (No.2) [2004] 2 AC 368 (“Razgar”), at [17], namely:
“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? 5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
70. In determining the fifth question, which gives rise to the issue of proportionality, a court or tribunal must have regard to the factors set out in section 117B of the 2002 Act.
71. Sections 117A and117B of the 2002 Act provide in relevant part:
“117A Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—
(a) breaches a person's right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), “the public interest question” means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.”
72. In its decision in R (Agyarko) v Secretary of State for the Home Department [2017] 1 W.L.R. 823; [2017] UKSC 11, at [46]-[47], the Supreme Court explained the weight to be given to the Immigration Rules in considering the public interest question. This was also addressed in the recent decision of the Court of Appeal in IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516; [2026] H.R.L.R. 4 (“IA”), at [158]-[159]:
“158. It is necessary, in this as in other connections, to consider closely the actual wording of Article 8 (2) itself. As we pointed out at [8] above, Article 8(2) prohibits interference by a public authority with the exercise of the right to family life; except “such as is in accordance with the law and is necessary in a democratic society in the interests of… the economic well-being of the country….. or for the protection of the rights and freedoms of others”. As Lord Reed made clear in Agyarko (see [109]-[112] above), in considering how the balance is struck in individual cases, the courts, “have to take the {SSHD’s} policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case”. The requirement for “exceptional circumstances” for leave to remain (and therefore also entry clearance) to be granted outside the rules was not inconsistent with either the ECtHR or domestic authorities, and section 117B(1) of the Nationality, Immigration and Asylum Act 2002 required consideration to be given to the maintenance of effective immigration controls.
159. The SSHD’s point is that it is not her policy (as represented by the Rules) to admit all persons who share family life with a person lawfully settled in the UK. That is not a question of floodgates or numbers likely to apply from war zones across the world. It is a question of respect for the UK’s laws and democratic process, and for what the Government determines is necessary in that society to protect the economic well-being of the UK and the rights of citizens of the UK. The courts must always, as Lord Reed said, attach considerable weight to the SSHD’s immigration policies at a general level, alongside considering all the factors which are relevant to the particular case.”
73. At [166] the Court of Appeal in IA stated:
“… Immigration control is to be assumed in this respect, and in the view of the SSHD, to be in the public interest and protective of the economic well-being of the country. …”
(6)(b) Re-Making: Ali
74. We have already referred to Ali, but it is appropriate at this stage to consider it in more detail. Andrews LJ, with whom Coulson LJ and King LJ agreed, said as follows in [1] in Ali:
“This is, by any standards, and in many different respects, a most extraordinary case. The underlying factual scenario is one which is highly unlikely to be repeated – or so one would hope. It raises the following issue of principle:
“Is the private life aspect of Article 8 of the European Convention on Human Rights ("ECHR") engaged when a resident non-national who was granted indefinite leave to remain, and whose travel document has been lost or stolen whilst abroad, seeks re-entry to the United Kingdom to resume their life in the United Kingdom?””
75. The facts of Ali can be summarised as follows. The Appellant had settled in the UK with his family. He had come to the UK at the age of 9, with his mother and siblings, under the Immigration Rules then relating to family reunion for refugees, to join his father, who had been granted refugee status in 1999. He was granted indefinite leave to remain in 2004, when he was 14 years of age. He was issued with a Home Office travel document valid from 2004. It is recorded that he could not have obtained that document without indefinite leave to remain. He left the UK in 2008, in the hope that the climate in Africa would assist his recovery from tuberculosis. He intended only to be absent from the UK for a temporary period. However, he lost his travel document in 2009 and was unable to obtain a replacement. His behaviour was consistent with a stated intention to return to the UK and he made attempts to obtain assistance from the embassy in Ethiopia. The Entry Clearance Officers were not persuaded that the Appellant had in fact been granted indefinite leave to remain. An Appellant with indefinite leave to remain would not need to apply for entry clearance before resuming their residence in the UK, but, subject to certain exceptions (which did not apply here), a person who had been absent for more than two consecutive years would automatically lose their indefinite leave to remain as a matter of law and therefore would have to apply for entry clearance.
76. As a result of the financial position of his family members in the UK, it was only in May 2015 that an application for entry clearance as a returning resident was lodged. At the time of the application, he had been outside the UK for approximately 6½ years. The application was refused and he did not appeal that decision. A further application was made in January 2019 and that application was also refused. The alleged absence of evidence that the Appellant ever had indefinite leave to remain was central to the reasons for refusing these applications. The Entry Clearance Officer concluded that it was proportionate to refuse entry clearance.
77. On appeal, the FtTJ did not consider the proportionality of the Entry Clearance Officer’s decision, but instead concluded that he was bound by the decision in Abbas to hold that Article 8 was not engaged.
78. The Upper Tribunal refused permission to appeal against the decision of the FtTJ and Lang J refused an application for permission to apply for judicial review of the Upper Tribunal’s decision. Mr Ali appealed to the Court of Appeal against Lang J’s decision.
79. We have already noted that Andrews LJ held that the ratio of Abbas was that:
“Article 8 does not oblige a state to allow a non-national to enter its territory in order to develop a private life there.”
80. At [41], Andrews LJ analysed the language used by Burnett LJ in Abbas and further held that the principle in Abbas:
“applies to a situation in which a foreign national with no, or no sufficient ties to the UK, is seeking to enter in order to develop a private life in the UK in the future, which was the situation which this court was there specifically addressing. Otherwise, anybody could turn up at the border and demand entry to the UK, and as Burnett rightly pointed out, that is completely antithetical to the right of immigration control.”
81. At [43] Andrews LJ said that the Appellant in Ali was not seeking entry to “develop” a private life in the sense used in Abbas, but:
“rather to resume or continue a long-established private life within the UK which had been cancelled for reasons beyond his control. He was a settled migrant with indefinite leave to remain.”
82. The reference to Mr Ali’s private life having been “cancelled for reasons beyond his control” is echoed in the following passages in Andrews LJ’s judgment.
(1) In [49], when considering the ECtHR case of Sargsyan v Azerbaijan (2015) 64 EHRR 4, she drew attention to the fact that he had left the country of his residence involuntarily, saying that:
“The Strasbourg court found at para 257 that article 8 was engaged. This was in part because the applicant had a home in Gulistan which he left involuntarily, and the gist of his complaint was that he had been unable to return ever since. …”
(2) Then in [50] she said as follows:
“The applicant’s lengthy involuntary absence from Azerbaijan did not preclude him from arguing, successfully, that the refusal to allow him to go back to Azerbaijan was a disproportionate interference with the private life he had established in that state. Likewise, although any evaluation of proportionality in the claimant’s case would necessarily involve weighing the length of time he spent in the UK against the length of time he spent outside it, the fact that the latter period was largely an involuntary consequence of the loss of his travel document and the refusal of re-entry because of an erroneous failure to recognise that he had previously been granted indefinite leave to remain, should be highly significant.”
(3) In [58] she placed emphasis on the reasons why Mr Ali had not returned to the UK, as follows:
“In the present case, the claimant was only put in a situation where he had to seek entry clearance from outside the UK because he lost his travel document, and therefore could not return within two years. It was accepted he met the suitability requirements. The Entry Clearance Officer denied his application under paragraph 19 in 2015 in circumstances where it was not accepted that he had ever had indefinite leave to remain. However, that position has moved on, and it is now established that he did indeed have indefinite leave to remain when he left, that he lost his travel document whilst abroad, and that he sought assistance from the British Embassy in getting a replacement for it well before the two years he was allowed to be absent before losing the right to return had elapsed.”
83. We have already cited Andrews LJ’s conclusion in [59]. We note that in her conclusion she referred to the Appellant’s status as a settled migrant and made clear that the court was not considering the position of an individual whose private life within the UK was of a more tenuous nature. We note also that she did not spell out what would constitute “sufficient ties to the UK” of the kind referred to in [41].
84. It follows, in our judgement, that a fact-sensitive enquiry is needed to establish whether Article 8 is engaged in a case such as the present.
(6)(c) Re-making: Ahmed
85. In relation to the issue of historic (or historical) injustice, we were referred to the decision of Ahmed (historical injustice explained) [2023] UKUT 165 (IAC). The headnote reads as follows:
“As is clear from the decision in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC), the phrase “historical injustice” does not connote some specific separate or freestanding legal doctrine but is rather simply a means of describing where, in some specific circumstances, the events of the past in relation to a particular individual’s immigration history may need to be taken into account in weighing the public interest when striking the proportionality balance in an Article 8 case. In relation to the striking of the proportionality balance in cases of this kind we make the following general observations:
If an Appellant is unable to establish that there has been a wrongful operation by the Respondent of her immigration functions there will not have been any historical injustice, as that term is used in Patel, justifying a reduction in the weight given to the public interest identified in section 117B(1) of the Nationality, Immigration and Asylum Act 2002. Although the possibility cannot be ruled out, an action (or omission) by the Respondent falling short of a public law error is unlikely to constitute a wrongful operation by the Respondent of her immigration functions.
Where the Respondent makes a decision that is in accordance with case law that is subsequently overturned there will not have been a wrongful operation by the Respondent of her immigration functions if the decision is consistent with the case law at the time the decision was made.
In order to establish that there has been a historical injustice, it is not sufficient to identify a wrongful operation by the Respondent of her immigration functions. An Appellant must also show that he or she suffered as a result. An Appellant will not have suffered as a result of wrongly being denied a right of appeal if he or she is unable to establish that there would have been an arguable prospect of succeeding in the appeal.
Where, absent good reason, an Appellant could have challenged a public law error earlier or could have taken, but did not take, steps to mitigate the claimed prejudice, this will need to be taken into account when considering whether, and if so to what extent, the weight attached to public interest in the maintenance of effective immigration controls should be reduced. Blaming a legal advisor will not normally assist an Appellant. See Mansur (immigration adviser's failings: Article 8) Bangladesh [2018] UKUT 274 (IAC).”
86. It is clear from the decision in Ahmed that the phrase “historical injustice” is not some separate or freestanding legal doctrine, but is a means of deciding whether, in some specific circumstances, the past events in relation to an individual’s immigration history may be taken into account in weighing the public interest when striking the proportionality balance in an Article 8 case.
87. It is appropriate to note also what the Tribunal said in Ahmed at [33], by reference to Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351 (IAC); [2021] Imm AR 355:
“It is clear that in the decision in Patel the Upper Tribunal was not seeking to identify a separate legal doctrine or principle of “historical injustice” which entitles an appellant to succeed without more. The discussion in that case, and in fact in all the cases, is rooted in the specific facts of those cases. The consideration of this issue arises specifically in the context of the appraisal of the proportionality assessment, and is directly related to the weighing of the public interest in the maintenance of immigration control. These cases are, therefore, to be anchored within the legal framework of Article 8, and Article 8(2) in particular. As the Upper Tribunal made clear in paragraph 48 of its decision, “[a]lthough labels can sometimes be helpful, they can also obscure the true issues in play”. There is danger seeking to rely upon arguments described as invoking “historical injustice” as if it were some kind of free-standing principle upon which an appeal could be launched without a careful examination of the merits of the appellant’s proportionality case. It is an adjectival description rather than a phrase connoting any kind of substantive right. Just because there may have been some misstep, or something may have gone awry earlier in a person’s immigration history, does not mean that this will always provide a basis for relief in respect of a subsequent decision. The key question will be whether some earlier feature of the factual background is relevant to the proportionality balance arising under Article 8. That said, there are two features of the description of historical injustice in Patel that are important to highlight and which provide useful guidance as to when the earlier facts of a person’s case will be relevant to the proportionality balance.
a. First, there must have been a wrongful operation of immigration functions. The examples in the headnote (and discussed in paragraphs 42-48) of Patel are all instances of well established public law errors.
b. Second, the appellant must have suffered as a result of the “wrongful operation”; i.e. there must be a causal connection between the “wrongful operation” by the respondent of her immigration functions and the prejudice the appellant claims to have suffered.”
(6)(d) Re-Making: Pathan (SC)
88. Mr Pathan contended, as the Appellant had done in his judicial review claim, that the principles in Patel and Thakur applied equally to Tier 2 migrants as they did to Tier 4 migrants, such that the Respondent ought to have provided him with a period of 60 days to find a new sponsor. As will be seen, the Supreme Court treated this contention as raising two issues:
(1) Whether there was a duty on the Secretary of State for the Home Department (“the SSHD”) to notify Mr Pathan promptly of the revocation of his sponsor’s licence, it being procedurally unfair not to do so?
(2) Whether there was a positive obligation on the Secretary of State to provide a period of time following notification to enable an applicant to make an alternative application or otherwise to react to the revocation of the sponsor’s licence?
89. The facts of Pathan were summarised by Lord Kerr and Lady Black at [94]-[96] as follows:
“94. Mr. Pathan was granted leave to enter the United Kingdom as the dependant partner of a Tier 4 (general) student on 7 September 2009 with leave to remain until 31 December 2012 (later extended until 30 April 2014). Before the latter date arrived, Mr. Pathan applied for and was granted leave to remain as a Tier 2 (general) migrant from 23 March 2013 until 15 October 2015. This was so that he could be employed by a company known as Submania Ltd as a business development manager. The period between March 2013 and October 2015 is known as the period of leave.
95. Before the period of leave was due to expire in October 2015, Mr. Pathan applied, on 2 September 2015, for further leave to remain in order to continue to work for Submania in the same capacity as before. The application was made on the basis that he would retain his Tier 2 status. It was made within the time allowed and it was in correct form. His wife and child were named as dependants in the application. It was supported by a certificate of sponsorship (CoS) issued by Submania.
96. Mr. Pathan's application was put on hold while a Sponsor Compliance Team of the Home Office investigated Submania. As a result of their investigations, Submania's sponsor licence was suspended on 4 February 2016. The licence was subsequently revoked on 7 March 2016. This had the automatic effect of invalidating Mr. Pathan's CoS. Although, as seen below in para 101, his leave was automatically extended until the Secretary of State considered his individual case, he had no opportunity to take steps to deal with the impending, inevitable determination of his application. Mr. Pathan was not informed of the revocation until 7 June 2016. He was therefore unaware of the impact that the decision would have on his status until three months after it had been taken.”
90. At [99], Lord Kerr and Lady Black noted that Mr. Pathan's primary case was that procedural fairness required that he should have been given notice by the SSHD of the revocation of his sponsor's licence when that occurred. They explained at [101] that the effect of section 3C of the Immigration Act 1971 is that, if a person has made an in-time application for a variation of their leave to remain, their leave to remain will automatically be extended whilst the application is being considered and whilst they are exercising rights to seek an administrative review or rights of appeal.
91. It is also relevant to note section 3C(4) & (5) of the Immigration Act 1971, which provided as follows between 20 October 2014 and 30 November 2016:
“(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).”
92. The effect of these provisions was that:
(1) Pursuant to section 3C(4), Mr Pathan could not make a fresh application for variation of his leave to remain while that leave was extended by virtue of section 3C.
(2) Pursuant to paragraph 245HD(p) of the Immigration Rules then in force, Mr Pathan could (and did, albeit unsuccessfully, as noted by Lord Kerr and Lady Black at [133] and by Lord Briggs at [151]) make a fresh application within 28 days of the expiry of his leave, relying on a different sponsor, but by then he was an overstayer, with all of the disadvantages which that brings (which were noted by Lady Arden at [79] and by Lord Kerr and Lady Black at [115]-[117]).
(3) Pursuant to section 3C(5), Mr Pathan could amend the application which he had made 2 September 2015. This included amending his application by substituting a different sponsor.
(4) However, it was held in JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, at [35], that:
“… once a decision has been made, no variation to the application is possible since there is nothing to left to vary.”
93. At [100] and [102]-[103], Lord Kerr and Lady Black explained what Mr. Pathan could have done if he had been notified of the revocation of his sponsor's licence and why he was prejudiced by the failure of the SSHD to notify him of that revocation:
“100. If Mr. Pathan had been given notice of the revocation of his sponsor's licence, a number of options would have opened for him: (i) he could have sought to vary his leave application, other than by making a human rights or asylum claim (e.g. by making an application relying on a new CoS from a different employer); (ii) he could have made an application to vary the terms on which he was entitled to remain so as to rely on human rights grounds; (iii) he could have made practical plans to remove himself, his wife and his child from the United Kingdom to his native India, thereby avoiding the prospect of their becoming overstayers, with all the negative consequences which that entailed; and (iv) he could have decided to take no steps until formally notified by the Secretary of State that his leave to remain was refused.
…
102. None of these options was realistically open to Mr. Pathan because the first he knew of the problem with his application was when he received the Secretary of State's letter of 7 June 2016 refusing it. Before this was communicated to him, Mr. Pathan had no occasion to seek leave to remain other than on foot of what he believed was a valid CoS. Although his leave had been extended (by operation of section 3C) while the Secretary of State considered his application, because he was unaware of the virtually certain outcome of that consideration, Mr. Pathan took no steps to deal with that inevitability. Why would he? He simply did not know what lay ahead. But what unavoidably lay ahead, while his application for leave to remain depended on a CoS which was of no value, was the end of his leave to remain, as from the conclusion of the administrative review period following refusal of his application.
103. If he had known that this was inevitable, Mr. Pathan could have applied to vary the application. Even if the variation constituted a significant departure from the original application, it is recognised as a "variation" for the purposes of section 3C of the 1971 Act, so long as the original application for leave had not been determined…”
94. Lord Kerr and Lady Black then concluded that the failure by the SSHD to inform Mr. Pathan promptly of the revocation of his sponsor's licence was procedurally unfair to him because it deprived him of the opportunity to take any of the steps that they had identified. They stated, at [107]:
“Underpinning the duty to act fairly in this context is the notion that a person such as Mr. Pathan should be afforded as much opportunity as reasonably possible to accommodate and deal with a decision which potentially has devastating consequences. One only has to envisage how Mr. Pathan must have reacted to the news that his Tier 2 application had been rejected because of the revocation of Submania's licence, to understand the fundamental justice in giving him the chance to do something about it. He had every reason to believe that his application would succeed. The reason that it did not had nothing whatever to do with him. But, failure in the application represented a calamitous upheaval for him and his family. To ensure in those circumstances that he had timely notice that, for wholly unanticipated reason his application was bound to fail, so that he could seek to avoid its consequences seems to us to be a self-evident aspect of the duty to act fairly.”
95. Lord Kerr and Lady Black stated their conclusion at [136]:
"We have concluded, therefore, that the failure to inform Mr. Pathan promptly of the revocation of Submania's licence constituted procedural unfairness. It is not a species of the audi alteram partem rule in the classic meaning of that rubric. This was not a case of the Home Office making sure that Mr. Pathan had a chance to make representations to it about the correctness of its decision to reject his application as originally formulated. Rather, it is an instance of his being deprived of the enlarged period that timeous information would have provided, during which he might have been able to vary his existing application so as to put it into a form that could succeed. There is, however, no material difference between these two situations. Furthermore, in principle, it can be just as unfair, procedurally, to restrict a person's opportunity to take steps to avoid the effect of the decision as it would be to deny him the opportunity to make representations. The objective of the person affected is the same in both scenarios. It is to avoid the adverse consequences of an unfavourable decision."
96. Two of the other members of the Supreme Court, Lady Arden and Lord Wilson, agreed with the decision that the SSHD had a duty to give Mr. Pathan prompt notification of the revocation of Submania's licence and had failed to do so. Lady Arden explained her decision in this respect at [56]:
“Here what procedural fairness aims to achieve is that a person who, like Mr. Pathan, is applying for further leave in order to continue working for his sponsor and had a valid CoS at the date of his application, should have notice of the communication to the sponsor of the determination of the Secretary of State that the sponsor's licence is revoked. Where the Secretary of State has initiated the process for the revocation of the sponsor's licence, and revocation is the cause of the invalidation of his application, it is right that the applicant should have that information in order to avert or mitigate the potential fatal blow to his application. This is because, while the applicant can be under no illusion as to the effect of revocation, he is not told in terms that the Secretary of State will take this course without his being informed.”
97. Lady Arden and Lord Wilson also thought that procedural fairness meant that the SSHD had a further duty not to determine Mr. Pathan's application until a further reasonable period of time had elapsed following notification of the revocation of his sponsor's licence. However, that further duty was not accepted either by Lord Kerr and Lady Black or by Lord Briggs (who had dissented on the issue of procedural unfairness).
98. Thus, while a majority of the judges held that Mr Pathan should have been notified promptly of the revocation of his sponsor's licence, a majority also expressly rejected the argument that he should have been given a further period of 60 days in which to find a new sponsor.
(6)(e) Re-Making: Oral Evidence
99. As already noted, we heard the oral evidence Mr Basim Ali, who had provided a witness statement dated 20 June 2022 (p165 CB). In that witness statement he set out that he had known the Appellant when they had lived in Pakistan and that they became friends. After the Appellant left for the UK in August 2008, the friendship continued when he entered the UK on 23 May 2009. He referred to the difficulties which the Appellant had with his immigration status and said that he was subsequently unable to work and that he had to rely upon support from him and other friends. The statement referred to the Appellant’s “strong support circle in the UK” and said that he had “built many friendships and is still in contact after returning to Pakistan.”
100. In evidence in chief Mr Basim Ali confirmed that he was still in contact with the Appellant and said that he had spoken to him on the day of the hearing. He said that he spoke to him two to three times per week. Asked if he was still in touch with other friends, Mr Ali said that they had a social circle “where we talk about him and they regularly send money and look at his case.” By reference to his accident, Mr Ali stated that he had taken the Appellant to hospital and it was “very hard for him because he didn’t have anyone there”.
101. In cross-examination, he was asked about the reference to savings in paragraph 5 of his witness statement and he said that the Appellant had had savings in a bank account in the UK, but confirmed that the savings were now finished. He was asked what kind of help he gave to the Appellant and he said that he had paid his rent and had arranged tickets and the fee for his barrister. He was asked if there was any evidence to demonstrate that either he or any other friends had been helping the Appellant. Mr Ali stated that he could provide some evidence, but not the others.
102. In re-examination he was asked what his understanding was of the Appellant’s intent to work in the UK. Mr Ali stated that if the Appellant came back to the UK he would help society and work and not be a burden.
103. We sought to clarify his evidence by reference to the Appellant’s personal circumstances. Mr Ali confirmed that the Appellant had married in 2008 before he had left Pakistan and agreed that the Appellant and his wife had four children in total. He was not able to provide their ages with any certainty, but stated that the eldest must be between 10 or 12 years of age. He thought that two children had been born whilst the Appellant was in the UK and had been visiting Pakistan and two children were born after he returned. When asked what work the Appellant was doing in Pakistan, Mr Ali was not sure, but said that he had previously worked in a bank. When the Appellant’s application form was read to him, where it was stated that he was unemployed in 2021, Mr Ali said that he may have been helping local students by way of “consulting”.
(6)(f) Re-Making: The Appellant’s Submissions
104. We will summarise the parties’ oral submissions at the hearing and then consider separately the parties’ written submissions made after the hearing.
105. Mr Skinner submitted that there were two questions which needed to be resolved. Firstly, is Article 8 engaged? Secondly, is the refusal to grant entry clearance disproportionate?
106. In relation to the first question, he submitted that Article 8 is engaged on the facts of the appeal and that this is a clear case in which the Appellant has sufficient private life in the UK to engage Article 8, based on his length of residence, i.e. for just under 12 years between the ages of 22 to 34. He studied for a number of qualifications and would have inevitably developed familiarity with the UK. He has a strong support circle, as evidenced by Mr Basim Ali.
107. The Appellant applied to re-enter the UK in January 2021, only 13 months after he left and about 3 months after the Supreme Court’s decision. Mr Skinner submitted that the timing indicated a real keenness on Mr Ali’s part to return to the UK and to continue the life which he had built up here as soon as he was realistically able to do so. He submitted that an Article 8 private life can be lost, in the sense that if a person who came to the UK and then left the UK in accordance with their visa conditions would not normally be able to apply outside the Immigration Rules on the basis of that private life. He submitted that such a person, by leaving the UK when their visa came to an end, would have no legitimate expectation of coming back to the UK unless they could comply with the Immigration Rules. However, he submitted that that is not the case on the facts in this appeal, given the Appellant’s length of residence and the fact that he was not able to pursue his remedy as a result of the decision of the Court of Appeal to refuse permission to appeal, a decision which proved to be legally flawed.
108. Moreover, Mr Skinner submitted that, despite returning to Pakistan, the Appellant is still in contact with his many friends here and the Appellant’s private life has not been severed by the period for which he has been in Pakistan.
109. Moving to proportionality, Mr Skinner submitted that, if the Appellant had an Article 8 right to enter the UK (or if there was a positive obligation in respect of the Appellant and his entry), it would follow that refusing entry clearance would be an interference with that right. He submitted that the interference was keeping somebody out of the UK who prima facie had a private life in the UK. Thus, he submitted that the issue of proportionality was the real issue and, in this respect, it was necessary to assess whether a “fair balance” had been struck.
110. He submitted that to refuse the Appellant’s appeal would be disproportionate and/or would not strike a fair balance between the Appellant’s right to respect for his private life and the interests of effective immigration control.
111. Mr Skinner submitted that central to this appeal is the issue of historical injustice. He submitted as follows:
(1) The Respondent has (rightly) never challenged the following propositions: (i) that, in light of the Supreme Court’s decision in Pathan, the Secretary of State’s refusal of leave to remain without permitting the Appellant a period of time in which to find an alternative employer was procedurally unfair and therefore vitiated by public law error; and (ii) that, had he been given that opportunity, the Appellant would have found an alternative employer and remained lawfully in the UK.
(2) This is therefore a case in which both of the criteria identified in [33] of Ahmed (namely public law error and causation) are met.
(3) But for the historical injustice which the Appellant has suffered, namely the unlawful failure to provide him with an opportunity to find an alternative employer and to vary his 2015 application accordingly, the Appellant would have remained lawfully in the UK. The maintenance of effective immigration controls would therefore have permitted the Appellant to remain and the public interest in the maintenance of effective immigrations control militates in favour of his re-entry, not against it. There is accordingly, on proper analysis, nothing to weigh against the Appellant’s private life in the proportionality balance.
(4) Alternatively, the weight to be given to the maintenance of effective immigration control is greatly diminished by the historical injustice which the Appellant has suffered.
(5) This is not a case like Ahmed where there was authority which permitted the Secretary of State to act as she did, so that her actions could not be characterised as the wrongful operation of the immigration system. On the contrary, there was clear authority in the case of Tier 2 migrants that where the sponsor of an applicant for leave to remain had its sponsor licence revoked during the pendency of the applicant’s application and through no fault of the applicant, the Secretary of State was required to provide him or her with a reasonable period of 60 days in which to find an alternative sponsor: see §§26-36 of the Appellant’s skeleton argument in his judicial review application, which sets out the law as it stood [89]-[92]. There was nothing on the state of the authorities at that time which sought to distinguish between Tier 2 and Tier 4 sponsors.
112. Mr Skinner submitted that refusing leave to enter to someone who had previously been entitled to leave to remain is an ineffective immigration control. Therefore, to “right the wrong” the Appellant should be entitled to return to the UK and the refusal of leave to enter is thus disproportionate.
113. He submitted that there are no other public interest factors weighing against the Appellant’s re-admission. He speaks English and he has never been a burden on the taxpayer. He argued that Mr Ali has contributed significantly to the economy through the payment of fee income to the educational institutions at which he studied, he has contributed large sums to the public purse for each of his immigration applications and, had his sponsor’s licence not been revoked, he would have been paying taxes on a salary well above the UK median. There is no reason to think that that position would be any different now. Whilst Mr Ali confirmed that the Appellant has no savings, the point of him coming to the UK is that he would be able to find a job and therefore would not rely on public funds.
114. Given the significant period of time for which the Appellant lived here and the deep private life which he has built up, the circumstances of his departure and application for re-entry and the lack of any or any real public interest in preventing his re-entry, the refusal to permit him to do so would, it was submitted, be disproportionate. Thus, Mr Skinner submitted that the Article 8 fair balance clearly fell on the Appellant’s side of the scales and was in fact “well over the line”.
(6)(g) Re-Making: The Respondent’s Submissions
115. On behalf of the Respondent, Ms McKenzie drew our attention to Ali at [1] and submitted that Ali was a decision on its extreme facts and that that was relevant to whether Article 8 was engaged on the facts of this particular appeal.
116. She submitted that it could not be right that a non-settled migrant who departed from the UK voluntarily should be able to re-enter to resurrect a claim based on a favourable change in the law since his departure. In this respect, she relied upon the decision in AB (Sudan) v SSHD [2013] EWCA Civ 921 (“AB (Sudan)”) at [28] to [31]. Although that case concerned the issue of when it was appropriate to stay proceedings, Jackson LJ set out his observations in relation to immigration cases generally.
117. At [28], he said that:
“Immigration law has a tendency to develop rapidly, indeed sometimes bewildering speed. The constant flow of developments arises in the industry of legislators, rule makers, judges and practitioners. …”
118. Similarly, at [30], and in the context of granting a stay, Jackson LJ referred to the need for realism and said that:
“In the world of immigration it is a fact of life that the law which the judge applies is liable to change in the future, quite possibly in the near future. This cannot usually be a reason for staying proceedings. I started dealing with immigration cases and 14 years ago. I cannot remember any occasion during that period when important decisions on one or more aspects of immigration law were not eagerly awaited from the appellate courts.”
119. Finally, in [31] he said:
“As Pill LJ observed in R (Bhata) v SSHD [2011] EWCA Civ 895, at [70], what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or by Parliament.”
120. Ms McKenzie submitted that the point made in AB (Sudan) was that immigration law changed frequently and that the law was applied to the Appellant’s case both by UTJ Kebede and by the Court of Appeal, having regard to the general principles set out in Pathan (CA).
121. As to the public interest, she submitted that there was a high public interest in certainty and finality in proceedings and that for the Appellant to be granted entry clearance on the basis claimed would fundamentally undermine that interest.
122. Returning to the decision in Ali, she relied upon the passage in [41] which referred to “no, or no sufficient ties to the UK” and submitted that that was relevant to the Appellant’s claim, since he had failed to demonstrate sufficient ties to the UK on the factual aspects of this appeal. The nature and quality of his ties to the UK were not substantiated and were of a wholly different type from that discussed in Ali, which concerned a settled migrant. She submitted, by reference to [35], [43], [44], [54] and [59] that the court in Ali recognised that settled migrants are in a different position to those with a history like the Appellant. Although she did not submit that Article 8 could never be engaged in the case of a person who was not a settled migrant, she submitted that, on a proper application of Ali, the facts of the present case were not sufficient to engage Article 8. She also submitted that the Appellant does not have an extant private life.
123. Returning to the public interest, she submitted that there was a strong public interest by reference to the “floodgates argument” mentioned in in Ali at [41].
124. As to the issue of historic injustice raised on behalf of the Appellant, she submitted there was no historic injustice because the decisions taken were based on the law as it was at the time. She submitted that it could not be said that, because a later decision was made in the Appellant’s favour, he could seek to enter the United Kingdom on the basis of that decision.
(6)(h) Re-Making: Post-Hearing Submissions
125. When asked whether it was accepted by the Respondent that the decision in Pathan (SC) applied, Ms McKenzie’s reply was that this was an issue on which she would have wished to have taken instructions, had the hearing been adjourned. For that reason, and to enable the parties to give further consideration to Abbas and Ali, we gave both parties the opportunity to provide their written submissions in this regard.
126. In answer to our question relating to Abbas and Ali, the written submissions filed on behalf of the Respondent state:
“As the panel observes that neither Abbas nor Ali is determinative of the issues in this appeal, the Secretary of State respectfully submits that the panel can resolve the issues by returning to first principles as at [23] Frenkel v LA Micro Group (UK) Ltd & Ors [2024] UKSC 42 (11 December 2024). This requires an assessment of the issues by reference to the immigration rules and statutory framework relevant to Article 8, and to apply legal reasoning to the facts of the case resolving the matters within a well-reasoned judgement.”
127. In response, Mr Skinner submitted that the Respondent had misunderstood our request that she confirm whether she agreed that neither Ali nor Abbas are determinative and had expressly not provided such confirmation, but noted that the Respondent appeared content to proceed on the basis that they were not determinative. He therefore submitted that consideration of Article 8 involves deciding whether, as a matter of fact, the Appellant enjoys a private life in the UK within the meaning given to that phrase in Article 8.
128. The Respondent’s position regarding the application of Pathan (SC) was as follows:
(1) The Respondent’s 60-day policy is not engaged in the Appellant’s case, given that he did not have any existing leave and was seeking entry clearance. The 60-day policy relates to the curtailment of PBS leave: when a PBS migrant loses their sponsorship, through no wrongdoing of their own, the Respondent will normally curtail their leave so that it expires in 60 days’ time, rather than with immediate effect. This is to give them an opportunity to make a new application to extend their stay, or to make arrangements to leave the UK. See the Respondent’s guidance on Cancellation and curtailment of permission, which states:
“Cancellation cannot be used to extend permission to enter or stay in the UK beyond the current date the permission is due to expire, see: Patel (Tier 4 – no ’60-day extension’) India [2011] UKUT 00187 (IAC).
You must never cancel permission and give a new expiry date for the permission that extends an individual’s permission beyond the original expiry date of their permission. It follows that if you intend to cancel permission to 60 days you must only do so if an individual will have more than 60 days permission remaining on the date that they will receive the decision.”
(2) The Respondent submitted that in Pathan (SC) the challenge arose because the Secretary of State revoked the Mr Pathan’s sponsor’s licence, then sat on Mr Pathan’s application for several months (during which time his leave passed its expiry date and Mr Pathan moved into leave under section 3C of the Immigration Act 1971), before it was refused. The Supreme Court found that this was procedurally unfair, as the Respondent had a duty to notify Mr Pathan promptly of the revocation of his sponsor’s licence. However, the Supreme Court did not strike down the refusal itself. The majority of the judges agreed that the Respondent had no duty to inform Mr Pathan before refusing his application, so, had she refused it promptly, there would have been no procedural unfairness.
(3) When considering this Appellant’s case history in the light of Pathan (SC), it appears that the Respondent did inform the Appellant reasonably promptly. His sponsor licence was revoked on 27 June 2016, his leave to remain application was refused on 14 July 2016 and, while it looks like this may not have mentioned the revocation, the administrative review decision of 19 August 2016 certainly did. This triggered a right to a second administrative review, extending his 3C leave to remain further. It was submitted that the Appellant had an opportunity then to make a different application to remain in the UK (whether based on his private life or another reason), as he would have been protected against a refusal on overstaying grounds by paragraph 39E of the Immigration Rules, but he did not do so. However, whilst the Respondent commented on the opportunity the Appellant may have taken at the time of the administrative review refusal, this point was not considered material, as the majority in Pathan (SC) agreed that the Respondent had no legal duty to give such an opportunity.
129. Mr Skinner’s written submissions on Pathan (SC) were as follows:
(1) Contrary to the submission made by the Respondent, it had never been suggested that the policy referred to in the Respondent’s submissions itself applied to the Appellant, so this was a straw-man argument. In any event, it is unclear why the Respondent was considering the question of its application to the Appellant’s entry clearance application. The relevant application in respect of which the Pathan (SC) question is directed was the application he made for leave to remain in 2015, which was refused in 2016.
(2) The Respondent had misstated the basis of the Supreme Court’s decision in Pathan (SC).
(3) On the basis of this misunderstanding of the decision in Pathan (SC), the Respondent had proceeded to submit that, despite it being clear that the Respondent did not notify the Appellant that his sponsor licence had been revoked between the decision to revoke it on 27 June 2016 and the decision on his first administrative review application on 19 August 2016, some seven weeks later, “it appears that the SSHD did inform the Appellant reasonably promptly”. It was not suggested, however, by the Respondent that the refusal of his application made in 2015 was not procedurally unfair.
(4) As to the relevance of Pathan (SC), it was submitted that the procedural unfairness in Pathan (SC) was in failing to notify the applicant of the revocation of his sponsor’s licence “as soon as it had taken place” in circumstances where the refusal of the Tier 2 application occurred some time later (see [105] per Lord Kerr and Lady Black, with whom Lord Wilson and Lady Arden agreed at [201]). Or, as it was put at [109], “the duty to act procedurally fairly comprehends an obligation to tell somebody such as Mr Pathan immediately about circumstances which doomed his current application so that he could avail of the full period which would then have become available to allow him to do something about it.” [emphasis added]. This was because, had such notification been given, “a number of options would have opened for him”, as set out in Pathan (SC) at [100] and [102], which we have quoted.
(5) It is clear from this that the procedural unfairness was not, in the view of the majority of the Court, as a result of the delay in his notification per se, but in the failure to notify Mr Pathan of the decision to revoke his sponsor’s licence as soon as that decision was taken, because that deprived him of the opportunity to then take the steps set out. While it is correct to note that a (different) majority held that there was no specific period of notice that was required to be given, this was in part because in Mr Pathan’s case, had he been given immediate notification of the revocation of his sponsor’s licence, he would have had three months before the decision on his leave to remain application was then taken (in which decision he was notified of the revocation).
(6) It was therefore submitted that the Appellant was in materially the same position as Mr Pathan for the following reasons. Neither was informed at the time of the revocation of his Tier 2 sponsor’s licence that it had been revoked. Neither was then informed of the revocation for a significant period of time. In Mr Pathan’s case he was informed in his decision letter 3 months later. In the Appellant’s case he was not notified in his decision letter and was instead first notified only in the decision made on his administrative review.
(7) As noted above, the Supreme Court in Mr Pathan’s case held that the fact that he was deprived of the opportunity of taking the various steps outlined in [100] while he had extant leave under section 3C of the 1971 Act meant that the failure to notify him of the decision when it was taken was unfair. Here, the Appellant has likewise been deprived of that opportunity because of the Respondent’s like failure. Indeed, it is difficult to see how the Respondent’s failure to notify the Appellant of the revocation until even later in the process can possibly assist her. The Respondent’s suggestion that the Appellant had a reasonable opportunity to make a further application after his first administrative refusal (whether a variation application prior to the expiry of his section 3C leave or within 28 days of the expiry of his section 3C leave pursuant to paragraph 245HD(p) of the Immigration Rules (as they then stood)) is inconsistent with the reasoning of the majority in Pathan (SC), in particular at [105].
(8) It is clear that the decision in Pathan (SC) was applicable to the Appellant. He ought, as a matter of procedural fairness, to have been notified of the decision to revoke his sponsor’s licence when that decision was taken. He would then have had the opportunity identified by the Supreme Court, of which he was deprived.
(9) It was submitted that, in light of his educational qualifications and work experience, it was likely that, had the Appellant been given such notice, he would have been able to obtain a further Tier 2 sponsor and have been able to vary his application accordingly. In the circumstances, the Respondent’s procedurally unfair process deprived him of that opportunity and therefore constitutes an historical injustice reducing significantly the weight to be placed on the public interest side of the Article 8 balancing exercise.
(6)(i) Re-Making: Decision: Is Article 8 Engaged?
130. We reject the submission made by Mr Skinner that on the facts of this case Article 8 is necessarily engaged and that we should move directly to the issue of proportionality. We do not consider that that is what Ali states. On the contrary, in [59], set out above, the court expressly declined to consider the position of an individual whose private life within the UK was of a more tenuous nature than that of a settled migrant. Thus, as previously indicated, we consider that it is necessary to undertake an assessment of the Appellant’s private life. It is not suggested that the Appellant has any family in the UK, so his case falls to be assessed solely by reference to his alleged private life.
131. We therefore turn to the factual findings which we make on the evidence before us.
132. There is no dispute that the Appellant arrived in the UK on 12 August 2008 in possession of a visa as a Tier 4 student, which was later extended. The Appellant’s educational history is not entirely clear from either the witness statement he has filed or the supporting documents. This was also the position before UTJ Kebede, as she noted at [21].
133. The evidence demonstrates that the Appellant enrolled at the London College of Excellence to begin a one-year course leading to a Diploma in Business and Administration, which started in September 2008 and was completed in September 2009 (pp108 & 110 CB). There does not seem to be any reference to what happened following the completion of that course, but there is an enrolment certificate (p120 CB) from the LCBIT confirming that he enrolled as a full-time student with that college for a PgD in Business Management starting on 20 January 2011 and ending on 20 January 2012. There is also a certificate of a Postgraduate Diploma in Business Management awarded on 20 September 2011, although the college or institution is not named (p117 CB).
134. There is also reference to a further course starting in 2011 contained in a letter dated 3 January 2013 (p119 CB), which refers to a Masters of Business Administration course at Cardiff School of Management, Cardiff Metropolitan University, for a course of study from 1 October 2011 until 7 February 2012, where it is said “withdrawn from course”.
135. A certificate dated 21 August 2014 (CB p 106) records the award by the University of Gloucestershire of a Master of Arts qualification, having followed a course in Islamic Banking Finance and Management (said to have been delivered in collaboration with the Markfield Institute of Higher Education). There is a results transcript (p117 CB) relating to eight modules of this course (three modules passed, one failed and four exemptions) which were completed between March and October 2013.
136. According to a letter written by the Appellant dated 28 September 2015 (p54 JRB), his last Tier 4 sponsor was the London College of Computing and Management, where he studied for a Diploma in Strategic Business starting in June 2013 and finishing in May 2015. However, as UTJ Kebede found in [31], it was not entirely clear how the reference made to having been awarded a Master’s degree in 2014 fitted in with the information that he had studied for a Diploma in Strategic Business at the London College between June 2013 and May 2015.
137. What appears to be clear from the application made on 28 September 2015 is that the Appellant stated that his last sponsor’s licence had been revoked and that he wished to study further at university level, but was unable to obtain a CAS letter due to college closures. He therefore submitted an application for leave to remain outside the Immigration Rules to obtain more time so that he could enrol on a new course of study.
138. Whilst the Appellant’s academic progress is not entirely clear from this review of the evidence provided, we are satisfied that he attended courses of study in the UK for at least part of the time between September 2008 and May 2015.
139. We have not been provided with any evidence of work undertaken by the Appellant in the UK. We further note the conditions imposed during the various periods of leave to remain, which were as follows: on initial entry the residence permit required that work must be authorised (p53 CB); for the period from 2011 to 2012 the residence permits stated “Work 20 hours max in term time” (pp55-56 CB); and for the period from 2013 to 2015 the residence permit stated “no work except work placement” (p54 CB).
140. We further observe that on 11 November 2015 he varied the application made on 28 September 2015 so as to apply for leave to remain in respect of prospective employment as an accounts manager. The letter accompanying the application (p83 JRB) does not set out any relevant work experience, but says that the application was based on his qualification obtained from the University of Gloucestershire. There is similarly no reference to any previous employment in the letter of the prospective employer, LTC (pp 439 & 440 JRB).
141. We remind ourselves that the burden is upon the Appellant to demonstrate his factual circumstances. Beyond a mere reference to a “professional career”, there is no supportive evidence of any employment, work experience or professional career during his period of residence in the UK. The Appellant had been offered employment by LTC, as set out above, but his evidence was that he had not taken up that employment. There is no evidence before us of any other attempts made to obtain employment during the period from 2015 onwards.
142. Turning to the claim that the Appellant had a private life consisting of his social connections, we find the evidence to be lacking in detail and substance. The Appellant’s witness statement dated 5 November 2021 (pp 4046 CB) repeats the same vague information provided in the covering letter for the application made in 2021, namely that his private life included his “social connections, my academic career and my prospective professional career”. None of the social connections are described, referenced or evidenced in that witness statement. Whilst we have heard evidence from Mr Basim Ali, we have not been provided with any further evidence from the Appellant beyond his witness statement filed in 2021.
143. Turning to Mr Ali’s evidence, in his witness statement he refers to the Appellant’s “strong support circle” in the UK and says that the Appellant has built many friendships whom he is still in contact with since he has returned to Pakistan. However, when asked if he had any supporting evidence to confirm his account of a “strong support circle” and any evidence of the Appellant’s friends in the UK having provided the Appellant with both support and/or money, he accepted that he had not provided any evidence in this regard. Whilst we accept Mr Ali’s evidence that he has remained in contact by telephone with the Appellant, there is no documentary evidence of any financial support provided either by Mr Basim Ali or by any other person. Nor is there any evidence in support of the strong circle of friends, who are not named in the evidence either by Mr Basim Ali or by the Appellant and none of whom have provided any letters of support.
144. Mr Basim Ali’s evidence also provided an understanding of the Appellant’s personal circumstances in Pakistan. He confirmed that the Appellant had been married in Pakistan in 2008 prior to him leaving that country and that he had four children. Despite the level of contact which he claimed to have had with the Appellant, he was not able to provide the dates of birth or years of birth of the children and, at best, was able to say that the eldest child was between 10 and 12 years of age. There are birth certificates showing that there are three children born on 6 September 2012, 2 August 2014 and 28 July 2020. His evidence as to work undertaken in Pakistan was equally uncertain, stating that he did not know what the Appellant did, but that he had previously worked as a banker. However, he said that he was providing “consulting” to students in Pakistan.
145. Beyond the length of residence from 2008 onwards and having attended educational courses between 2008 and 2015, there is little evidence of any social links or connections made in the UK. There is no evidence of any work history or employment, nor any community work or religious or cultural links.
146. We note also that the Appellant has only ever resided in the UK on a temporary basis: for the purposes of study from 2008 to 2015; while his appeals were pursued from 2015 to 2018; and as an overstayer in 2019. Moreover, when in the UK on a temporary basis, the Appellant maintained his family life in Pakistan, having married in 2008, returning from time to time to Pakistan and fathering children in Pakistan. The Appellant has been able to continue a level of engagement with friends in the UK, which he will be able to continue irrespective of the refusal of entry clearance.
147. We consider, especially in the light of the passages from Ali which we have cited, that the reasons why an individual has left the UK must be relevant to assessing whether he retains a private life in the UK. At one end of the spectrum is a person who voluntarily leaves the UK with no right to return, who could be said to have given up his private life in the UK. At the other end of the spectrum is a person such as the Appellant in Ali, who left the UK with both the right and the intention to return, but who was unable to return for reasons beyond his control.
148. It is, accordingly, a point in the Appellant’s favour that he had wanted to stay in the UK from 2015 onwards and that he only left in 2019 after his application had been refused and his appeals had been unsuccessful. On the other hand, what the Appellant faced in 2016 was not the denial of a right to remain in the UK but, on his case, the loss of a chance to obtain that right through an amended and successful application.
149. In all the circumstances, the facts of this case are far from those of Ali and we conclude that the nature of the Appellant’s private life was such that, by the time of his application in 2021, he had no, or no sufficient private life in the UK to engage Article 8.
(6)(j) Re-Making: Decision: Proportionality
150. Our conclusion that Article 8 is not engaged is sufficient to determine this appeal. However, we go on to consider the position if, contrary to that conclusion, Article 8 is engaged. In those circumstances, we consider that the refusal of entry clearance would be an interference with the Appellant’s Article 8 rights. In answer to questions 3 and 4 in Razgar we find that the interference would be lawful and would be made in pursuit of a legitimate aim.
151. We remind ourselves of what was decided on the two issues in Pathan (SC):
(1) a majority of the judges held that Mr Pathan should have been notified promptly of the revocation of his sponsor's licence; but
(2) a different majority also expressly rejected the argument that he should have been given a further period of 60 days in which to find a new sponsor.
152. We accept that it follows from Pathan (SC) that the Appellant in this case should have been notified promptly of the revocation of his sponsor’s licence on 27 June 2016. The failure to notify him promptly was procedurally unfair. However, it remains relevant to consider the consequences of that failure in order to assess its significance in the proportionality balance. For this purpose it is appropriate to consider the chronology in more detail, while bearing in mind that the Appellant’s original claim that he was entitled to be given 60 days in which to find an alternative sponsor is not supported by the decision in Pathan (SC):
(1) The Appellant’s application for leave to remain was refused on 14 July 2016 (p 74 JRB), only 17 days after the revocation of his sponsor’s licence. We note that the decision did not state expressly that the sponsor’s licence had been revoked.
(2) 15 days later, on 29 July 2016 the Appellant applied for an administrative review of the decision of 14 July 2016 (p113 JRB). In setting out the reasons for seeking an administrative review, the application referred to the sponsor’s licence being revoked and said that it was not the Appellant’s fault if the sponsor’s licence was revoked (p115 JRB). So the Appellant knew by 29 July 2016 that his sponsor’s licence had been revoked.
(3) On 19 August 2016 the decision on this first administrative review was issued (p62 JRB). The Respondent made a further decision refusing the Appellant’s application, but the Appellant was told that he could apply for a second administrative review.
(4) On 8 September 2016 the applicant applied for an administrative review of the decision made on 19 August 2016 (p121 JRB). This application again referred to the revocation of the sponsor’s licence.
(5) On 5 October 2016, over two months after the Appellant can be seen to have known that his sponsor’s license had been revoked, the Respondent issued her decision on the second application for an administrative review (p57 JRB), maintaining the Respondent’s refusal of the Appellant’s application.
153. As to the causation issue, the submission made by Mr Skinner was that, if the Appellant had been given notice of the revocation of his sponsor’s licence, he would have been able to find a sponsor, he would have amended his application for leave to remain, his amended application for leave to remain would have succeeded and this would have led to long residence and, ultimately, British citizenship. However, we consider that that submission rests on inherent speculation. There is no evidence before us that the Appellant ever sought a new sponsor at any stage of his presence in the UK, even after he was aware that his sponsor’s licence had been revoked. For instance, unlike Mr Pathan, the appellant did not make a fresh application after the expiry of his leave to remain. It is also relevant to note in this context that, as we have already found, the appellant had not started work for his sponsor (unlike Mr Pathan, who had worked for his sponsor for over 2 years before making his application) and there was no evidence of any other work undertaken by the appellant in the UK.
154. Moreover, as we have already noted, the Appellant’s application for leave to remain was refused only 17 days after the revocation of his sponsor’s licence. The majority of the judges in the Supreme Court rejected the argument that the SSHD was obliged not to determine Mr. Pathan’s application until a further reasonable period of time had elapsed following notification of the revocation of his sponsor’s licence. Consequently, even if the appellant had been notified promptly of the revocation of his sponsor’s licence, the appellant would have had little time in which to find a new sponsor before his application was refused.
155. The absence of the causation element on both of these grounds means that, in our judgment, there was no historical injustice.
156. However, even if we are wrong in that analysis and there was a historical injustice, which would stand as a factor relevant to the proportionality balance, we are required to take account of all of the relevant factors in conducting that balance.
157. Applying this to the factual circumstances of this particular Appellant, we accept that the existence of a historical injustice would lessen the significant weight to be attached to the Respondent’s policy reflected in the Immigration Rules.
158. We further take into account that, in general, in cases concerned with a precarious private life, a very strong or compelling claim is required to outweigh the public interest in immigration control. In this context, we refer to our previous findings made concerning his previous private life established in the UK. We attach some weight to his private life and, whilst this was established at a time when it would properly be described as “precarious”, his residence in the UK was in the main lawful. However, for the reasons given, we do not find his private life to have strong features to it which would justify placing it at the weightier end of the spectrum (see Ruppiah v Secretary of State for the Home Department [2018] I WLR 5534; [2018] UKSC 58).
159. We have found on the evidence that the Appellant has little or no ties to the UK remaining and we find as a fact that his ties to Pakistan are strong both in terms of private and family life, as demonstrated by his residence with his wife and children. He retains his cultural, family and social ties in Pakistan, none of which have been displaced by any length of residence in the UK.
160. The nature of the private life which he seeks to rely upon is his relationship with friends who remain living in the United Kingdom. However, friendships can be maintained irrespective of whether entry clearance is granted. The evidence demonstrates that he has been able to maintain those relationships from Pakistan and has done so since he left the UK in 2019.
161. Applying the section 117B public interest considerations, whilst the Appellant can speak English, that is a neutral factor. As to the issue of financial independence, whilst Mr Skinner submitted that the Appellant will be financially independent should entry clearance be granted, we find that the evidence in this regard is lacking in detail and substance. Whilst we accept that he attended studies in the UK, we have seen no reliable evidence or any supportive documents as to who was responsible for funding his education. Mr Basim Ali was not able to provide evidence of support from friends, whom it is said provide him with sums of money. Similarly, the evidence concerning his current circumstances have not been explained satisfactorily. Mr Basim Ali’s evidence was that he is in employment, whereas the application form submitted by him refers to his status as “unemployed” and reliant on family support. The savings he refers to are minimal (£600) and in our judgment it has not been explained how he would be financially independent upon entry to the United Kingdom.
162. When assessing why he seeks entry clearance to the UK, it is said that he wishes to see if he can obtain employment. No evidence is advanced as to how realistic this is or even what employment he seeks. It is not explained what the position would be if no job is forthcoming or whether he would seek to remain for further and/or indeterminate periods to enable this to take place.
163. Further, we are satisfied that the Appellant has the opportunity to seek to return to the UK under the Immigration Rules by applying out of country for leave to enter as a skilled migrant, based on evidence supplied by him. Whilst it is said that it may be more difficult to make such an application from outside the UK, the Appellant retains that opportunity and this is a relevant factor to consider within the proportionality assessment.
164. Having considered the balancing factors identified, including the weight attached to the historical injustice which we assume for this purpose and to the Appellant’s private life during his time of residence, we consider that those factors are outweighed by the other factors which we have identified above.
165. We therefore remake the decision by dismissing his appeal.
(7) Notice of Decision
166. The decision of the FtTJ involved the making of a material error of law and is set aside.
167. The appeal is remade as follows: the appeal is dismissed.



Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

Dated: 30 April 2026