Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004482

First-tier Tribunal No: HU/55048/2022
IA/07772/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 February 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE JOSHI

Between

TARLOCHAN SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Kashif (Bond Adams LLP Solicitors)
For the Respondent: Mr Lawson (Senior Home Office Presenting Officer)

Heard at Birmingham Civil Justice Centre on 4 February 2025

DECISION AND REASONS
1. These written reasons reflect the oral decision which was given to the appellant at the end of the hearing.
2. The appellant, with the permission of Deputy Upper Tribunal Judge Lewis, appeals against the decision of Judge Hobson of the First-tier Tribunal, (“the Judge”), who, in a decision promulgated on the 7th of September 2023, dismissed the appellant’s appeal against the respondent’s decision of the 30th of July 2022 refusing his human rights application made on the 12th of October 2021.
3. The appellant is a citizen of India born on the 9th of June 1957. The appellant entered the United Kingdom on the 22nd of September 2003 with leave as a visitor valid until the 9th of March 2004. The appellant has overstayed since the expiry of his visa.
4. The Judge rejected the appellant’s claim finding at §§14 and 16 that there was no evidence that the appellant had been continuously resident in the United Kingdom since his arrival on the 22nd of September 2003. The Judge, whilst accepting that Article 8 was engaged, went on to find at §§16 to 20 that the Appellant did not satisfy the Immigration Rules, there being no very significant obstacles to his integration if he were to return to India. The Judge having conducted a ‘balancing exercise’ went on to find at §§21 to 26 that the respondent’s decision is proportionate.
The appellant’s appeal
5. The appellant sought permission to appeal, which was initially refused by the First-tier Tribunal, but on renewal, permission was granted. The renewed application firstly submitted that the Judge erred in their approach to the issue of continuous residence in the United Kingdon, and secondly, erred in their evaluation of Article 8.
6. Deputy Upper Tribunal Judge Lewis did not limit the grounds, but he did not find merit in the grounds raised by the appellant, however, he identified an arguable ‘Robinson’ obvious error in relation to the Judge’s finding that there was no evidence that the appellant had been continuously resident in the United Kingdom. It was identified in the grant at §§6 to 9 that the respondent may have conceded that the appellant was resident for 18 years in their refusal letter:
• 6. The RFRL dated 30 July 2022 states: “You entered the UK on 22 September 2003 on a visit visa valid from 09/09/03 to 09/03/04. You overstayed your visit visa. You have therefore lived in the UK for 18 years and it is not accepted you have lived continuously in the UK for at least 20 years.”
• 7. Paragraph 14(a) of the Decision states, in part: “…no evidence was before me to show continuous residence, and the Respondent did not accept in the refusal letter that he had been continuously resident in the United Kingdom since September 2003”. The FTTJ has seemingly misread the reference to not having lived continuously for 20 years, as the Respondent not accepting continuous residence from 2003 at all.

• 8. The arguable error in respect of continuous residence may have materially affected the FTTJ’s evaluation of ‘proportionality’: e.g. see paragraph 16: “There was insufficient evidence before me to conclude that he has, in fact, lived in the United Kingdom continuously since he arrived as a visitor in 2003”.

The hearing before us
7. Mr Lawson and Mr Kashif identified at the beginning of the hearing that they had had an opportunity to discuss the grant of permission to appeal in respect of the ‘Robinson’ obvious point. Mr Lawson conceded that that there had been an error of law. He submitted that the respondent accepted that in the decision refusing the application they had accepted that the appellant had been continuously resident in the United Kingdom since his arrival on the 22nd of September 2003. He highlighted the refusal letter referring to “you entered the United Kingdom on the 22nd of September 2003. You have therefore lived in the United Kingdom for 18 years.” He submitted that it was a matter for us whether or not it was a material error. We told him that we considered it was a material error, as it had clearly affected the way the judge approached the proportionality exercise.
8. The representatives requested that the appeal be heard de novo and that the appeal be remitted to the First-tier Tribunal for an oral hearing. Mr Lawson told us that the respondent maintained that the appellant did not meet the requirements as at the date of his application and that the decision is proportionate. He said that the respondent would submit that it would be proportionate to require the appellant to make a fresh application now he had been in the United Kingdom for more than 20 years.
Conclusions
9. In the circumstances we are satisfied that the appellant’s appeal did disclose a material error of law, such that the Judge’s decision is not safe. The adverse finding made by the Judge at §§14 and 16 that there is no evidence that the appellant has been continuously resident in the United Kingdom since his arrival is clearly inconsistent with the respondent’s concession, as confirmed by Mr Lawson, that in their refusal it is accepted that the appellant had been continuously resident in the United Kingdom since his arrival on the 22nd of September 2003.
10. We find that this error would have materially infected the Judge’s assessment of the appellant’s claim when considering the rules and in the Judge’s proportionality assessment.
11. We set the decision aside with no preserved findings. We record that the respondent conceded in the decision letter that the appellant had been continuously resident in the United Kingdom from his arrival on 22 September 2003 up to the date of refusal.
12. In considering whether to remit the appeal to the First-Tier Tribunal for decision, we have had regard to the presumption in paragraph 7 of the Senior President’s Practice Statement that the remaking of the decision should be retained in the Upper Tribunal. However, we are satisfied that the exception in paragraph 7.2(a) is met, that the effect of the error has been to deprive the appellant before the First-tier Tribunal of a fair hearing

Notice of decision
The Judge has materially erred in law such that the decision is not safe and must be set aside.
There are no preserved findings.
The appeal is to be remitted to the First-Tier Tribunal for rehearing at the Birmingham Civil Justice Centre before a judge other than Judge Hobson.
There is to be an oral hearing in the interests of justice.

Directions

1) The time estimate for the hearing is 3 hours.
2) HMCTS should provide the appellant with an interpreter in the language PUNJABI.
3) The appellant is to file and serve any further evidence on which he wishes to rely 7 days before the remitted hearing date.

M D JOSHI

Judge M D Joshi
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

07 February 2025