Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001581

First-tier Tribunal No: HU/56036/2023
LH/05078/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 September 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CONNAL
UPPER TRIBUNAL JUDGE KAMARA

Between

MR ASAD REHAN GUL
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Fazli, Counsel
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. An error of law hearing was held on 5 March 2025. At that hearing, and having heard from both representatives, we communicated our acceptance of the position of the parties, adopted for different reasons, that the decision of the First-tier Tribunal dated 15 January 2024 (the FTT Decision) contained a material error of law with respect to the third of the appellant’s grounds of appeal (Ground 3). Ground 3, in short, concerned the Judge’s consideration of the appeal having reached a finding that the appellant’s immigration detention had not broken his period of continuous lawful residence, meaning that the appellant met Paragraph 276B(i)(a) of the Immigration Rules (the Rules). The appellant’s position was that the Judge had erred in failing to find that this was determinative of the appeal, in light of the respondent’s position in the refusal letter of 19 April 2023 (the refusal letter), while the respondent’s position was that the Judge had erred by not proceeding to consider Paragraphs 276B(ii) and (iii).
2. Having indicated our preliminary view on the submissions we had heard regarding Ground 3, and having heard submissions from the representatives on further procedure, we were persuaded that it was appropriate to grant the parties a further period of time to set out their positions in writing, but not that a further oral hearing would be necessary given the limited and legal nature of the issue raised and with a view to avoiding unnecessary expense. We therefore adjourned the matter and issued directions, with those directions subsequently confirmed in writing in our written error of law decision which was promulgated on 6 May 2025 (the EoL Decision).
3. We refer to the EoL Decision for its full contents, including our record of the appellant’s immigration history, the general background to the matter, and the parties’ submissions made at that hearing; we therefore do not repeat these matters herein. However, for ease of review of this decision, we record here that:
a. We confirmed in the EoL Decision that the findings of the First-tier Tribunal were preserved, save for the finding at [53] that the appellant could not succeed under the Rules on suitability grounds, and the consideration of that matter within the subsequent Article 8 ECHR proportionality consideration.
b. The findings preserved therefore included, among others, that the appellant committed fraud and deception in his ETS/TOEIC test in March 2012 ([52]), and that the Appellant’s immigration detention did not break his period of continuous lawful residence ([67]).
c. Paragraph 19 of the respondent’s review dated 25 September 2023 (the review), which is the focus of the parties’ submissions, provides:
19. In the absence of an innocent explanation or supporting evidence it is submitted that the ETS ﬁnding that the TOEIC certiﬁcate 0044201254001010 remains invalid, and the Appellant used this certiﬁcate to fraudulently obtain leave to remain in the United Kingdom, and continual presence is undesirable.
Written submissions
4. In compliance with the directions given orally at the hearing, both parties subsequently lodged written submissions (dated 12 and 16 March 2025 respectively). We do not recite those submissions in detail again here, but note that:
a. In the respondent’s submissions:
i. The respondent records her understanding that the Upper Tribunal did not accept the submission, made at the error of law hearing, that paragraph 19 of the review had introduced an additional ground of refusal, as to the appellant having fraudulently obtained leave to remain in the UK and his continual presence being undesirable. The respondent notes that she understood this to be permissible under Annex B.8 of the President’s Practice Statement No 1 of 2022.
ii. The respondent formally seeks, in any event, the Tribunal’s permission to rely on the contents of the review in raising an additional ground of refusal under Paragraph 276B of the Rules. The respondent submits that sub-paragraphs (ii) and (iii) of 276B are not met. The respondent sets out her position regarding why the appellant is said not to be prejudiced by the late application, and why such permission should be granted.
iii. The respondent goes on to make additional submissions regarding the public interest and Paragraph 276B(ii) and (iii).
b. The appellant’s written submissions, in short, oppose the respondent’s application to introduce a new ground of refusal or to extend the refusal letter.
Findings and reasons
Did the review introduce an additional ground of refusal?
5. We address first the question of whether the review introduced an additional ground of refusal. As noted above, we indicated our preliminary view on this matter at the error of law hearing, and we have not been persuaded to depart from that view.
6. It was not in dispute that the only reason expressly relied on by the respondent in the refusal letter, as to why the appellant did not meet the requirements of the Rules on the ground of long residence, was that the appellant did not meet the requirements of Paragraph 276B(i)(a). The respondent’s position was that this was because the appellant’s period of immigration detention broke the Temporary Admission and was not counted towards continuous lawful residence.
7. No reference was made in the refusal letter to the other parts of Paragraph 276B. While the issue of the appellant’s deception was addressed, this was only in the section of the refusal letter in which the respondent considered whether discretion should be exercised to waive the stated breach of the Rules, with the respondent declining to do so on the basis that: the break in lawful residence stemmed from the conclusion that the appellant had used deception in fraudulently obtaining a TOEIC certificate by the use of a proxy taker; the appellant had had avenues to challenge that decision; and the appellant had provided no sufficiently compelling or compassionate reasons why discretion should be applied in this regard. While the deception was thus said to be a reason that led to the appellant’s detention, it was the detention itself that was said to have broken the continuous lawful residence period.
8. We do not accept the respondent’s submission that it is likely that the only reason Paragraphs 276B(ii) and (iii) were not addressed in the refusal letter is because it had likely been in the mind of the decision maker that if there was not continuous lawful residence for 10 years there was no need to go on to consider the remainder of Paragraph 276B. In addition to the respondent making no reference to these provisions in the refusal letter (or, as we shall come on to, in the review), the respondent also stated in the refusal letter that the appellant’s application did not fall for refusal on grounds of suitability in Section S-LTR of Appendix FM. It is also not the case that such a position is unexplainable; it was clearly open to the respondent to adopt such a position in light of the passage of time since the deception in question and the fact that the appellant already had leave granted after the date the respondent became aware of the deception issues.
9. In the course of the subsequent appeal before the First-tier Tribunal, the appellant lodged an appeal skeleton argument. We are satisfied from this that, while the appellant maintained that he had not cheated in the TOEIC test and made numerous submissions in this regard, the appellant understood that the respondent’s only grounds for refusal under the Rules were that his period of immigration detention – which the appellant maintained was unlawful for reasons including that he had not used deception - broke his period of continuous lawful residence, and that discretion had not been exercised in favour of the appellant with regard to this requirement (see, for example, at [20] thereof).
10. We turn next to the review which, as set out above, the respondent submits introduced an additional ground of refusal. In this regard, the respondent relies in the written submissions on B.8 of the then applicable FTT IAC Practice Statement No 1 of 2022, which provided:
B.8 Within fourteen days of the ASA being provided the respondent must undertake a meaningful review of the appellant’s case, taking into account the ASA and appellant’s bundle and provide the result of that review and particularise any additional grounds of refusal.
11. As an initial point, we note here that we understand that the appeal was brought online using “MyHMCTS” and that it was therefore Annex A, rather than Annex B, which applied. The equivalent provision provides:
A.8 Respondent’s Response. Within fourteen days of the ASA being provided the respondent must undertake a meaningful review of the appellant’s case, taking into account the ASA and appellant’s bundle, providing the result of that review and particularising the grounds of refusal relied upon.
12. While A.8 does not contain the same reference to “any additional” grounds of refusal that appears in B.8, and while we did not hear submissions on this point, we do not consider that it can have been intended for there to be any practical difference between the provisions. However, in any event, we are not satisfied that the review did in fact particularise an additional ground of refusal in relation to Paragraphs 276B(ii) or (iii).
13. The review was not – and was not stated to be – a supplementary decision. It was, rather, a response to the matters raised by the appellant’s appeal skeleton argument and evidence lodged for the appeal, as provided for in the First-tier Tribunal’s procedure. We consider that if the respondent had wished to use the review to raise an additional ground of refusal in this regard, then this would – and indeed should - have been done expressly. However, at no point in the review did the respondent state that she was raising an additional ground of refusal, or that the respondent’s position was that the appellant did not meet the requirements of Paragraph 276B(ii) or (iii). Further, paragraph 19 appears in that section of the review in which respondent responds to the appellant’s issue “(d) Whether the A used deception in his TOEIC test?”. In all these circumstances, we do not consider that the reference to “…continual presence is undesirable", is sufficiently clear so as to establish a new ground of refusal in relation to Paragraph 276B(ii) or (iii). Our finding in this regard is further supported by Mr Fazli’s confirmation, recorded in the EoL Decision, that no preliminary issue was raised before the Judge with regard to what is now said by the respondent in relation to paragraph 19 of the review.
14. For completeness, we note that [16] of the review also included: “With the Appellant using deception in his English language test the Appellant is unable to meet the suitability requirement of the Immigration rules S-LTR 1.6 and 4.2”. However, we take into consideration that: this section again appeared only in the final section of the review; it conflicts with that set out in the refusal letter, namely “Your application does not fall for refusal on grounds of suitability in Section S-LTR of Appendix FM under paragraph 276ADE(1)(i) of the Immigration Rules”; neither party made submissions as to whether – and if so how – this was addressed before the First-tier Tribunal; the Judge at the First-tier Tribunal made no express reference to this part of the review; this still does not expressly address Paragraphs 276B(ii) or (iii); and the respondent places no reliance on this section of the review in the written submissions. We find that, in these circumstances, this does not assist the respondent’s position.
15. For all the reasons set out above, we find that the review did not introduce an additional ground of refusal in relation to Paragraphs 276B(ii) or (iii).
The respondent’s application to now rely on the review in raising an additional ground of refusal
16. We turn next to the respondent’s application to now rely on the review in raising an additional ground of refusal, namely that the appellant does not meet Paragraph 276B(ii) and/or (iii).
17. It is important that we start by acknowledging that a finding of deception is a serious one. It is a matter that self-evidently can – and indeed in most cases should - be taken into consideration by a decision maker when deciding an application such as the decision under appeal, and it could of course form a reason, or part of a reason, for refusal of such an application. Nothing we set out herein detracts from this general position.
18. We accept that, as submitted by the respondent, the question of whether the appellant used deception in his TOEIC test was in issue between the parties. However, we do not accept the submission that this means that “…it makes little sense for either party to be precluded from relying on TOEIC findings against the requirements of paragraph 276B”. We refer to our findings above in this regard, and in particular to the context in which we have found that the issue of the appellant’s deception was in issue between the parties, which did not include the provisions of Paragraph 276B(ii) or (iii). We do not consider that the way in which the appellant pleaded his argument on error of law is not reflective of, or changes, this position.
19. The respondent also refers in the written submissions to RM (Kwok On Tong: HC 395 para 320) India [2006] UKAIT 00039 (Kwok 2006), affirming the decision in Kwok On Tong (R v IAT and Another ex parte Kwok On Tong [1981] Imm AR 214) (Kwok 1981), and in particular to:
Kwok On Tong is still good law and an Immigration Judge cannot allow an appeal on the ground that the decision was not in accordance with the Immigration Rules unless satisfied that the requirements of the Immigration Rules were (or are, as appropriate) met. An appeal is not limited to the issues raised in the Notice of Refusal….
20. However, we would highlight two particular points in this regard.
21. First, the Upper Tribunal recorded in Kwok 2006, that under section 19 of the 1971 Act, an Adjudicator was to allow an appeal if he was satisfied that the appealed decision was “not in accordance with the law or with any Immigration Rules applicable to the case”, and that the equivalent provision, with which the Upper Tribunal were concerned, was s86(3)(a) of the Nationality, Immigration and Asylum Act 2002, which provided that the Tribunal was required to allow an appeal in so far as it thought that the decision appealed against was not in accordance with the law, including immigration rules (at [9]). The Upper Tribunal went on to refer to the findings of Kwok 1981, and in doing so made clear that the reasoning for the findings referred to was the precise wording of section 19 of the 1971 Act: “…Both those cases decide that the notice of refusal is not equivalent to a pleading; if new elements of the Immigration Rules come into play they are to be dealt with on the appeal, and the parties must be allowed any appropriate adjournment in order to avoid the injustice of being taken by surprise. The reason is the wording of s19. Even if the appellant shows that he met a particular requirement of the Immigration Rules that had been in issue at the appeal, the decision to refuse him is not a decision that was “not in accordance with the law including any applicable Immigration Rules” unless, at the time of the decision, he met the requirements of the Immigration Rules applicable to his case.” (our emphasis) (at [10]). The Upper Tribunal found that there was no material difference in this respect between the formulation of section 19 of the 1971 Act and section 86 of the 2002 Act ([11]) and held that “In an appeal which depends on the Immigration Rules, an Immigration Judge is not entitled to allow it outright unless all the requirements of the Immigration Rules are satisfied”. However, the immigration regime has since changed, and no equivalent provision to sections 19 or 86 applies; an appeal before the First-tier Tribunal can no longer be allowed on the basis that the decision was not in accordance with the law or the Immigration Rules.
22. Second, and in any event, the Upper Tribunal in Kwok 2006 made a clear distinction between, on the one hand, cases in which a failure to meet the relevant rule operated as a bar to the applicant’s application (in which case the Judge would, under the then applicable regime, require to dismiss the appeal), and those cases where a failure to meet the relevant rule was not such a bar ([12]-[15]). The Upper Tribunal considered that the second part of paragraph 320, with which it was concerned, fell into this latter category and held:
“16. The second part of paragraph 320 gives the government official dealing with the case a power to decide whether to take the points specified against the applicant. If he does so he will give them in the reasons for refusal as his ground, or as a further ground, for the refusal itself. If the relevant facts were known to the decision-maker and there is no reference to paragraph 320 in the documents before the Immigration Judge, the latter is no doubt entitled to take the view that matters arising under paragraph 320 are not in issue. In those circumstances, although perhaps entry clearance or leave to enter should normally be refused, he can perfectly properly take the view that he is dealing with a case which is not regarded as normal. If, then, he is satisfied that the requirements of the specific Immigration Rules applicable to the case are satisfied, he will allow the appeal”.
In our view, the current case falls within this latter grouping; the deception was only a matter that the decision maker was entitled to consider whether to take against the applicant.
23. The respondent submits in the written submissions that the appellant is not in any way prejudiced by the application and “given the contents of the review at paragraph 19, [the Appellant] likely would have made arguments against sub-paragraph (ii) during his hearing before the First-tier Tribunal”. However, no confirmation was provided that any such arguments were in fact made before the First-tier Tribunal, and we again refer to our findings above regarding the appellant’s understanding of the position as indicated by the appeal skeleton argument, as well as Mr Fazli’s confirmation that no preliminary issue was raised regarding paragraph 19 of the review.
24. The respondent rightly acknowledges in the written submissions the late stage at which this application has been made. In this regard, it is not disputed that the matter of the appellant’s deception is not a new one. Indeed, it has been known to the respondent for a significant period of time, as is evident from the appellant’s immigration history. This includes that the ETS test in question was taken on 20 March 2012, with the appellant accepting that he likely used that certificate in his application of 22 October 2013 for further leave to remain, and the initial removal notices for using deception having been served by the respondent on 31 July 2014. The respondent, by then aware of these issues, subsequently granted the appellant leave to remain on 21 September 2021 (until 20 March 2024). We have found that this ground of refusal was not relied on by the respondent before the First-tier Tribunal and that the refusal letter also stated that the appellant did not fall for refusal on suitability grounds. We have found that the appellant prepared his appeal on the basis of the refusal as he understood it and as it was made out by the respondent at that time. This matter was only raised at the error of law hearing, and we find that the appellant would be significantly prejudiced by the admission of the additional ground. For these reasons, we consider it appropriate to refuse the application.
Outcome having refused the respondent’s application
25. It was not in dispute in this case that Article 8(1) was engaged. We have found above that the only requirement in the Rules that was in dispute between the parties was that at Paragraph 276B(i), and this was found to be met by the First-tier Tribunal. If an appellant satisfies the requirements of the Rules, then “this will be positively determinative of that person’s article 8 appeal, provided their case engages Article 8(1), for the very reason that it would then be disproportionate for that person to be removed” (TZ (Pakistan) v SSHD [2018] EWCA Civ 1109). The appellant’s appeal therefore succeeds on Article 8 grounds.
Notice of Decision

1. The appeal is allowed on human rights grounds.

L.C. Connal
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
26 September 2025