Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002025

First-tier Tribunal No: HU/55940/2023
LP/00575/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

CG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Vidal of Counsel
For the Respondent: Ms S Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 6 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is the remaking of a decision in the appellant’s appeal against the respondent's decision dated 17 April 2023 to refuse his protection and human rights claims. The appellant is a citizen of Bhutan born on 9 November 1979.
The Issues
2. The appellant’s appeal to the First-tier Tribunal had been dismissed in a decision promulgated on 1 March 2024. However, the Upper Tribunal found, in a decision and reasons sealed on 11 April 2025, that the decision for the First-tier Tribunal involved the making of an error of law and set the decision aside to be remade in the Upper Tribunal. However, the First-tier Tribunal’s findings in respect of the appellant’s protection and Article 3 ECHR claims were preserved. That error of law decision is Annexed.
3. Consequently, the only matter before me is the appellant’s appeal on Article 8 ECHR grounds. It was conceded by Ms Vidal that the appellant did not face very significant obstacles to reintegration into Bhutan. Consequently, it was agreed that the only issue for me to decide was whether the decision otherwise has unjustifiably harsh consequences for the appellant.
The Hearing
4. The appellant and one of his supporting witnesses, Mr Bhandari, gave evidence on the basis of their witness statements (respectively dated 3 October 2023 and undated) and were cross-examined. I made clear that I would disregard those elements of the appellant’s statement relating to preserved findings rather than requiring him to be taken line by line through his statement to disavow them. It was agreed that the statement of his other supporting witness, Mr Sahani, could be taken as read. In addition to the bundle prepared for the error of law hearing, which included all of the evidence before the First-tier Tribunal, the appellant provided a supplementary bundle of background information regarding Bhutan. Whilst excepting that it did not establish very significant obstacles, Ms Vidal relied on the background evidence as going towards the proportionality of removal.
5. The representatives each made oral submissions, in the appellant’s case relying on his appeal skeleton argument and in the respondent’s relying on the refusal letter. Whilst I have referred to these below only to the extent necessary to understand my decision, I took that evidence and those submissions fully into account.
Findings
6. As recorded in the error of law decision at [15], the following are preserved findings of the First-tier Tribunal:

a. The appellant is a Bhutanese citizen of Nepalese ethnicity.
b. The appellant has not lived in India as claimed, and so had not taken part in any activities there that would put him at risk on return to Bhutan.
c. The appellant had family in Bhutan in 2011.
d. The appellant does not have a well-founded fear of persecution by the Bhutanese Government for a Refugee Convention reason.
e. The appellant would not be at risk of serious harm or treatment contrary to Article 3 ECHR on return to Bhutan.
7. The appellant entered the United Kingdon on or around 23 December 2010 and claimed asylum on that date. The claim was refused on 28 January 2011 and his appeal against that decision dismissed on 23 March 2011. The appellant’s appeal rights were exhausted on 26 April 2011; however, the appellant has remained in the United Kingdom ever since. On 18 November 2015, he made an application for leave to remain on the grounds of statelessness, which was refused on 20 June 2017 because the respondent considered the appellant to be a citizen of Bhutan. Further representations were submitted on 29 June 2017 and refused the following day. Yet further submissions were set out in a letter dated 20 October 2022, although apparently made to the respondent on 4 November 2022, the refusal of which is the subject of the present appeal.
8. The appellant has lived with Mr Bhandari since around 2011 and has close friendships with Mr Bhandari and Mr Sahani. They are both British citizens born in Baglung, Nepal. Mr Bhandari supports the appellant not only with accommodation but also food, clothing and, according to his witness statement, financially when needed. The appellant helps around the house and cooks for the family (he admits to being a chef before he came to the United Kingdom, albeit that he claimed in oral evidence that was when he was in India).
9. There is no evidence of the appellant speaking English to any meaningful level of competence and certainly not to a level which would satisfy the requirements of the Immigration Rules. It would appear that he has been supported financially throughout his stay by his friends However, on his own account, he has used the services of the NHS to have a gallbladder operation. There is no evidence that he has paid for this treatment.
10. Mr Bhandari claims that he would be unable to provide any financial support to the appellant if the latter returned to Bhutan, because he has his own family to support. However, Mr Bhandari is able to do so now from time to time and I do not accept that this support would not continue, at least at a similar level, if his close friend needed it. Instead, I find that Mr Bhandari simply does not wish his friend to be returned to Bhutan.
11. The appellant claims to be unreturnable to Bhutan, and relies on the contents of a data subject access request. In particular, the appellant relies on an entry dated 11 April 2019 which records:
‘received HO file there is no supporting evidence on file. Unable to submit the ETD pack without any supporting evidence. ETD pack linked to HO file as we are unable to progress’.
12. The appellant had also provided to the respondent a letter from the Embassy of Nepal dated 6 September 2022 confirming its inability to issue a travel document in the absence of Nepali nationality documents, and an e-mail from the appellant dated 26 September 2022 confirming that he had written to the Indian Ministry of Home Affairs without any reply. Neither of these documents is surprising given that the appellant is neither a Nepalese nor an Indian citizen. A note on the appellant's Home Office file, dated 17 March 2011 and provided under the data subject access request, records that the appellant had contacted the Bhutanese honorary consulate by e-mail for a passport and had been advised that he would have to contact the authorities in Bhutan for such a document. There is no evidence that the appellant has done so.
13. The documents provided by the respondent under the appellant’s data subject access request also record on 25 May 2011 that he did not attend an emergency travel document interview, and on 24 August 2012 that he attended an emergency travel document interview but stated that he left Bhutan at the age of 10 and so could not remember some of the information such as house number. On 2 November 2012, the appellant’s case record shows that, ‘RLO has rejected application as is incomplete. Thram No and Bio Data is required. WMDU [West Midlands Documentation Unit] will speak to subject when next reports to complete if speaks English.’ On 8 November 2012, the case record shows, ‘Subject understands English but prefer to have Nepali interpreter present for interview.’ However, a note from 28 November 2012 records that the WMDU had been disbanded and that the ETD pack had been returned to off-site storage. There does not appear to have been any subsequent attempt to get the appellant to provide the evidence necessary to submit an ETD application. That is the context to the 11 April 2019 entry.
14. Background evidence suggests that Nepali speaking people sometimes faced employment discrimination and other bias, that NGO's working on matters related to ethnic Nepalese were not allowed to operate, and that human rights groups established by the Nepali speaking community were not permitted to operate because they were categorised as political organisations that did not promote national unity. It also suggests that ethnic Nepali residents often could not obtain a police security clearance certificate, without which they face difficulties starting a business, enrolling in higher education, or obtaining passports or government jobs, and that the process of registering property could also be lengthy for them. However, Ms Vidal accepts that these matters, even together with the appellant’s other circumstances, do not amount to very significant obstacles to reintegration.
Analysis
15. I accept that the appellant has lived in the United Kingdom now for a period of over 14 years and thus has developed a private life in this country. I am, therefore, satisfied that the appellant’s removal would engage Article 8 ECHR.
16. Whilst the appellant’s presence in the United Kingdom has been precarious (indeed unlawful) throughout, I recognise that there are lengthy periods of time when perhaps more effort could have been made by the respondent to remove the appellant, and so I am prepared to give his private life some weight. Moreover, he clearly has strong friendships with Mr Sahari and even more so with Mr Bhandari, developed over that time. They are both British citizens born in Nepal, and it is fair to accept that the quality of their friendship would change if the appellant returned to Bhutan. I also accept that the appellant would suffer a degree of discrimination and disadvantage in Bhutan as an ethnic Nepali. The appellant’s claim to have lost his mother 13 years ago was not challenged and so I accept it to be true.
17. However, it is appropriate to give the appellant’s private life significantly less weight than if he had been lawfully in the United Kingdom, let alone had he been settled in the country. Furthermore, there is no evidence that that private life extends beyond his narrow circle of friends or (even if so) the Nepali-speaking community in his local area. There is a Nepali-ethnicity community in Bhutan within which the appellant could re-establish himself. Moreover, in accordance with the preserved findings, the discrimination he might face would not reach the level of persecution. Indeed, it is also a preserved finding that the appellant did not ever live in India. By his own admission, the appellant has worked before coming to the United Kingdom as a chef and so that could only have been in Bhutan. On his own case, the appellant has continued to use his cooking skills while living with his friend. Consequently, I am unpersuaded that the appellant would be unable to find work on return. He could in any event be provided with some financial support by Mr Bhandari commensurate with the support he presently provides.
18. It is said that the appellant cannot be returned to Bhutan because an ETD cannot be obtained. However, I am not satisfied that the appellant has properly cooperated with the respondent to date. His continued insistence in oral evidence that he has lived in India undermines his credibility. There is no evidence that he has provided the respondent with the details he has of his parents, such as their names places and dates of birth. There is no evidence that he has contacted the Bhutanese authorities himself to obtain a passport, instead contacting the Indian and Nepalese authorities whom he knew would never issue him with travel documents. Consequently, I am not satisfied on balance that the prospects of his return to Bhutan have been remote such as to place the appellant in ‘limbo’ (as considered in R (oao AM) v SSHD (legal “limbo”) [2021] UKUT 62 (IAC), applying RA (Iraq) v SSHD [2019] EWCA Civ 850).
19. Even if I had been satisfied that the appellant has been in limbo, I would have found that that state of affairs had existed since not long before April 2019 and that the appellant played a significant part in bringing it about. I would not in any event have been persuaded that the chance of future removal would be remote, for the reasons given above. Consequently, I would not have considered any ‘limbo’ to be a decisive factor in the appellant’s favour.
20. The public interest in maintaining effective immigration controls weighs against the appellant. In addition, he has used the services of the National Health Service despite never having resided legally in the United Kingdom and never having paid any tax. Consequently, the public interest in individuals being financially independent of the state also weighs against him, as does the public interest in individuals being able to speak English.
21. Balancing the above factors both for and against the appellant, I am satisfied that the public interest prevails and that the decision is proportionate. Consequently, I dismiss the appeal.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. I remake that decision and dismiss the appeal.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 August 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002025

First-tier Tribunal No: HU/55940/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
11 April 2025
…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

CG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Vidal of Counsel instructed by Haris Ali Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 27 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is a national of Bhutan, born on 09 November 1979. On 04 November 2022 he made a claim for international protection and human rights by way of further submissions. These were refused by the Respondent on 17 April 2023.
2. The Appellant’s appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge Dyer (hereafter “the Judge”) by way of a decision dated 01 March 2024.
3. Permission to appeal to the Upper Tribunal was initially refused by the First-tier Tribunal on 22 April 2024. However following a renewed application to the Upper Tribunal, permission to appeal was granted by Upper Tribunal Judge Kamara on 11 June 2024.
The error of law hearing
4. The hearing took place by Cloud Video Platform (CVP). It was attended by representatives from both parties. At the outset of the hearing I confirmed with the parties that they could all see and hear each other and the Tribunal.
5. Ms Vidal made submissions in line with the grounds of appeal. She confirmed that there was no challenge to the Judge's findings in respect of the protection claim. The challenge related to the Judge’s consideration of the Appellant’s claim under Article 8 of the European Convention on Human Rights (ECHR) and the associated issue of his non-removability.
6. She directed me to paragraph [27] of the determination, where the Judge purported to undertake a balancing exercise under Article 8. She submitted that the Judge had failed to consider any of the factors weighing in the Appellant’s favour and had instead looked solely at the points in favour of the Respondent. Ms Vidal argued that the Judge had failed to adequately consider and analyse the Appellant’s status as a Nepalese ethnic citizen of Bhutan and the discrimination he would likely face there, his absence from Bhutan for over 15 years, the absence of close family ties in Bhutan, and his strong social support network in the UK, evidenced by numerous character references and letters of support. Ms Vidal submitted that the Judge’s reasoning at [27] was unbalanced, as it focused solely on the Respondent’s position and failed to meaningfully engage with the substantive arguments advanced on behalf of the Appellant.
7. Ms Vidal further submitted that the Appellant’s non-removability was a relevant consideration under Article 8. The Respondent had accepted that there was insufficient evidence to pursue an Emergency Travel Document (ETD) application, and this was not a case where the Appellant had deliberately frustrated removal. On the contrary, he had actively attempted to obtain both Bhutanese and Nepalese passports, but was unsuccessful in both efforts. Ms Vidal argued that this left the Appellant in a state of limbo in the UK, unable to work, access NHS services, or secure a tenancy agreement. She maintained that these circumstances were highly relevant to the proportionality assessment under Article 8, and that the Judge’s analysis lacked adequate reasoning and failed to properly weigh the evidence.
8. Mr Walker, appearing on behalf of the Respondent, indicated that he conceded the core grounds of appeal advanced by the Appellant. Specifically, he acknowledged that the Judge had erred in conducting the Article 8 ECHR balancing exercise, that the proportionality assessment was inadequately reasoned, and that the Judge had failed to properly consider the practical impediment to the Appellant’s removal to Bhutan, namely, the Respondent’s inability to secure ETD to facilitate removal.
9. I informed both representatives that I agreed with Mr Walker’s concessions and the thrust of the Appellant’s grounds of challenge. Accordingly, I indicated that I would set aside the Judge’s decision insofar as it related to the Appellant’s Article 8 ECHR claim. There was no challenge to the Judge’s findings in respect of the protection claim or the assessment under Article 3 ECHR, and I indicated that those findings would be preserved. Both representatives agreed that the appeal should be remade in the Upper Tribunal.
Findings and reasons
10. Although the representatives agree that the decision should be set-aside for material error, it is nonetheless important to explain why the Judge erred.
11. The obligation on judges is well established: they must make sufficiently clear and reasoned findings on matters that are materially in dispute between the parties. This principle is articulated in South Bucks District Council v Porter (2) [2004] UKHL 33, [2004] at §26:
12. "The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration."
13. I accept the Appellant’s submission that the balancing exercise undertaken at paragraph [27] of the determination is flawed and that the Judge failed to provide adequate reasons in his assessment of proportionality under Article 8 ECHR. This amounts to a material error of law.
14. In addition, I find that the Judge did not give sufficient consideration to the fact that the Appellant currently cannot be removed to Bhutan, due to the Respondent’s inability to obtain an ETD. The grounds of appeal referred to an internal note from the Respondent, which had been served in support of the Appellant’s further submissions and highlighted in the Appellant’s skeleton argument before the First- tier Tribunal. That note confirmed that, as of 11 April 2019, there was “no supporting evidence on file” and that the Respondent was “unable to submit the ETD pack without any supporting evidence.” It further stated, “ETD pack linked to HO file as we are unable to progress.” This note constituted clear evidence that practical obstacles to the Appellant’s removal existed, and yet the Judge failed to adequately take this into account in the Article 8 ECHR assessment. The Judge suggests at [21] that this was not evidence of a barrier to removal, it would appear because the Judge considered that there was no longer any dispute as to the Appellant’s Bhutanese nationality. However, the resolution of nationality alone did not address the continuing inability of the Respondent to secure an ETD. The Judge failed to explain why this was not a relevant barrier to removal or a factor to be weighed in the Article 8 assessment. This omission also amounts to a material error of law.
15. There is no challenge to the Judge's findings in respect of the Appellant’s protection claim or claim under Article 3 ECHR. The following findings, which have not been undermined or infected by any of the established errors of law, are preserved:

a. The appellant is a Bhutanese citizen of Nepalese ethnicity [17] and [19];
b. The appellant had not lived in India as claimed, and therefore had not taken part in any activities there that would put him at risk on return to Bhutan [17] and [19];
c. The appellant had family in Bhutan in 2011 [17] and [19];
d. The appellant does not have a well-founded fear of persecution in Bhutan for a convention reason [25]; and
e. The appellant would not be at risk of serious harm or treatment contrary to Article 3 ECHR on return to Bhutan [25].
Notice of Decision
I find that the Judge materially erred in law. The decision of the First-tier Tribunal is set aside.
The appeal is to be reheard in the Upper Tribunal.
The Judge's findings in respect of the Appellant’s protection and Article 3 claim are preserved.
Listing and Case Management Directions
1. The appeal is to be relisted on the first available date on or after 19 May 2025 with a time estimate of 2.5 hours.
2. A Nepali interpreter is required for the Appellant to give evidence.
3. Any further evidence upon which the Appellant wishes to rely is to be filed and served no later than 21 days before the relisted hearing. For any person intending to oral evidence in support of this appeal, this must include a written statement (or updated written statement), accompanied by a statement of truth and be signed and dated by him/her to stand as evidence in chief.
4. Any further evidence upon which the Respondent wishes to rely is to be filed and served no later than 14 days before the relisted hearing.
5. Skeleton arguments shall be filed and served by both parties no later than 5 days before the next hearing.

S Anzani

Deputy Judge of the Upper Tribunal Immigration and Asylum Chamber

7 April 2025