Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002125

First-tier Tribunal No: HU/55515/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11th of March 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ASTRIT KURTAJ
(NO ANONYMITY ORDER MADE)
Respondent
Representation:
For the Appellant: Mr B Shabbir, advocate, instructed by McGlashen MacKay Solicitors
For the Respondent: Ms J Isherwood, senior presenting officer
Heard at Field House on 20 February 2025
DECISION AND REASONS
Background
1. The Secretary of State appeals the decision of First-tier Tribunal Judge Doyle (the Judge) promulgated on 28 March 2024 to allow the appellant’s appeal against the refusal of his human rights claim. For ease of reference, we refer to the parties as they were before the First-tier Tribunal in this decision. No anonymity order was sought, and we did not consider that there was any basis on which an order should be made.
2. The appellant is a citizen of Albania who first arrived in the United Kingdom on 10 February 2000. He came with his then partner and their two sons and used a false name so as to avoid removal to Belgium where he had previously claimed asylum using his true name. The appellant’s claim was refused, and he was removed from the United Kingdom in 2004. He returned illegally and came to the attention of the authorities when he was arrested on 3 June 2007. He was once again removed from the United Kingdom on 20 March 2008. He made an application for entry clearance, but the application was refused and so he re-entered illegally for a third time in late 2011.
3. On 12 December 2014, the appellant applied for leave to remain. His application was refused, and he appealed the decision. His appeal was allowed on human rights grounds in a determination promulgated on 26 August 2016. As a result of his successful appeal, the appellant was granted leave to remain on 25 October 2016, which was valid until 25 April 2019.
4. On 28 June 2019, the appellant made an application for further leave to remain. The application was successful, and the appellant was granted leave to remain valid until 11 May 2022. The basis on which leave to remain was granted was not clear, save that it was on the basis of the appellant’s family and private life, which Mr Shabbir helpfully noted was set out at page 5 of the respondent’s bundle that was before the First-tier Tribunal.
5. The appellant made an application for further leave to remain on 10 May 2022, which was refused on 10 March 2023.
6. The appellant appealed the decision. His appeal was heard on 20 March 2024 and was allowed by the Judge in a decision promulgated on 28 March 2024. The Judge’s findings of fact are set out at paragraph 10 of the decision.
7. The respondent sought permission to appeal on the following grounds:
(i) The Judge made a material misdirection that the appellant’s previous immigration history, which was taken into account when his appeal was allowed in 2016, is not something that can weigh against the appellant in the proportionality assessment now.
(ii) The Judge failed to give adequate reasons as to why the appellant’s previous adverse immigration is not relevant to public interest considerations.
(iii) The Judge failed to give adequate reasons for finding that the respondent’s decision is disproportionate.
8. Permission to appeal was granted by First-tier Tribunal Judge Dainty on 13 May 2024. The grant of permission was not limited.
The hearing
9. Mr Shabbir relied on a note of argument and the judgment in the case of Archid Architecture and Interior Design v Dundee City Council [2013] CSOH 137. It was asserted in the note of argument that the respondent had not filed a compliant bundle, but this is not in fact correct. A composite bundle was uploaded to CE-file on 17 May 2024 in accordance with directions.
10. At the outset we gave a preliminary indication as to the issues we considered required addressing before us. In particular, we wished to hear from the parties in relation to the Judge’s view that he was precluded from taking the appellant’s previous immigration history into account because it had been addressed by the First-tier Tribunal in the 2016 appeal determination. We agreed that it would be helpful to hear from Mr Shabbir first, before hearing from Ms Isherwood. We heard from them both, then Mr Shabbir gave a short reply. Ms Isherwood confirmed that she had nothing further to add.
11. Mr Shabbir highlighted the findings made about the appellant’s immigration history. He accepted that the appellant had a poor immigration history but submitted that the previous Judge made a clear finding that his motivation was his desire to be with his family, including his children, in the United Kingdom. Mr Shabbir noted that the respondent did not appeal any of the findings of fact made in 2016 and granted the appellant leave to remain.
12. Regarding the grant of leave in 2019, Mr Shabbir accepted that little was known about the reasons leave was granted. He noted that at the time leave to remain was granted, both of the appellant’s sons were adults. He pointed to page 5 of the respondent’s bundle that was before the Tribunal as providing the only information about the reasons for the grant of leave. It is stated:
On the 28 June 2019 you submitted an application for leave to remain on the basis of your family and private life in the UK. This application was granted with leave valid until 11 May 2022.
13. Mr Shabbir submitted that regardless of the lack of detail about the reasons for leave having been granted in 2019, the respondent must be presumed to have had regard to the public interest when making her decision relying on Archid Architecture.
14. We indicated that we would like Mr Shabbir to address us on Part 5A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), including the fact that section 117A is expressed in mandatory terms and whether the Judge grappled correctly with the statutory provision in his approach to the public interest.
15. Mr Shabbir submitted that the Judge correctly identified the need to have regard to the public interest and that he did in fact do so and decided to give no weight to it. Mr Shabbir relied in particular on paragraphs 14 to 16 where the Judge uses the word ‘weigh’ and ‘weighed’. He submitted that this demonstrates that the Judge did not err in his approach to the statutory regime and in fact applied it correctly.
16. Mr Shabbir submitted that the findings by the Judge that the appellant no longer enjoyed family life with his younger son was not a sufficient reason to go behind the findings of the previous Judge. He invited us to find that there was no material error of law in the Judge’s decision.
17. For the respondent Ms Isherwood relied on the grounds of appeal and submitted that we should find that the Judge’s decision contains a material error of law.
18. Ms Isherwood submitted that the change of circumstances since the 2016 determination is a relevant factor because the appellant did not seek to challenge any of the findings of fact made by the Judge, for example the finding that he no longer enjoys family life with his sons. Ms Isherwood noted that in light of that, the basis on which the appeal was allowed must have been materially different to that in 2016.
19. Ms Isherwood submitted that the case of Archid Architecture is of no assistance, as it related to a regulatory decision and involved a change to a decision once it had been made. Ms Isherwood submitted that in the present case the appellant’s status was precarious because he had not been granted indefinite leave to remain. The effect of that was that he had to apply for further leave to remain, meaning that his circumstances were always going to be reviewed at the point of application.
20. In response to Mr Shabbir’s argument that the Judge did in fact have regard to the public interest in maintain effective immigration control and determined that no weight should be attached tot it, Ms Isherwood pointed us to paragraph 28 of the Judge’s decision. She submitted that the Judge in fact considered that the respondent’s 2019 decision to grant leave barred her from relying on the appellant’s previous poor immigration history at all, the result of which was that the Judge failed to consider it rather than simply deciding to attach no weight to it as contended for by Mr Shabbir.
21. Ms Isherwood invited us to find that the Judge’s decision contains a material error of law.
The law
22. Part 5A of the 2002 Act is relevant in this appeal. Sections 117A to 117D make provision for consideration of the public interest in cases involving article 8 of the European Convention on Human Rights (ECHR).
23. Section 117A provides that where the Tribunal is required to determine whether a decision made under the Immigration Acts would breach a person’s right to respect for their private and family life under article 8 of the ECHR, in considering the public interest question, it must have regard in all cases to the considerations listed in section 117B.
24. Section 117B provides that the maintenance of effective immigration controls is in the public interest.
25. Section 117C makes provision for those who are subject to deportation and is not relevant in the present case. Section 117D provides definitions of relevant terms.
Discussion
26. In determining whether the grounds of appeal disclose a material error of law, it is necessary to consider the following issues:
(i) Was the Judge required to consider the public interest in maintaining effective immigration control in the balancing exercise?
(ii) Did the Judge consider the public interest in maintaining effective immigration control in the balancing exercise?
(iii) Did the Judge give any/adequate reasons for either failing to consider the public interest and/or his conclusion that the respondent’s decision was disproportionate?
Was the Judge required to have regard to the public interest in maintaining effective immigration control in the balancing exercise?
27. Section 117A of the 2002 Act is drafted in mandatory terms. It provides that the tribunal must in all cases have regard to the matters in section 117B. Subsection 117B(1) provides that the maintenance of effective immigration control is in the public interest.
28. That the Tribunal is bound to apply the provisions of primary legislation, as set out in section 117B of the 2002 Act was confirmed by the Upper Tribunal in Binaku (s.11 TCEA; s. 117C NIAA; para 399D) [2021] UKUT 34 (IAC). There is no provision in Part 5A of the 2002 Act which provides for circumstances in which the public interest in maintaining effective immigration control is to be disregarded.
29. We find that as a matter of statute, the Judge was required to have regard to the public interest in maintaining effective immigration control. For ease of reference, in the rest of this decision we simply refer to this as the public interest. This is because although section 117B sets out several factors which are in the public interest, this is the only one is in dispute in this appeal.
Did the Judge have regard to the public interest in the balancing exercise?
30. We accept that the Judge correctly identified that immigration control is in the public interest and that he also correctly identified that the appellant had a poor immigration history prior to 2014. The Judge noted that the appellant was removed in 2007, that he re-entered the United Kingdom illegally in 2011 and had not taken any steps to regularise his stay until he made an application for leave to remain on 12 December 2014. In fact, the appellant’s immigration history is significantly worse than is recorded by the Judge in his decision, as can be seen from the chronology set out above.
31. In addition to the appellant’s poor immigration history, there were other factors noted by Judge Kempton who heard the appellant’s appeal in 2016 (the previous Judge) which are relevant to the public interest. We note that while Part 5A of the 2002 Act provides for matters that must be taken into account, it is not prescriptive and there may be other factors relevant to the assessment of proportionality. In this case, the appellant had apparently been found working illegally in 2015; he had used a false name and made a false asylum claim; he repeatedly breached the conditions of his temporary release; and he failed to meet the suitability requirements of Appendix FM in his application made on 12 December 2014. The previous Judge did not accept that the respondent had made out the suitability issue and found that the appellant’s application did not fall for refusal on suitability grounds.
32. Mr Shabbir sought to persuade us that the Judge’s use of the word weigh and weighed in paragraphs 14, 15 and 16 of his decision is an indication that the Judge was aware of the requirement to have regard to the public interest, and that on the facts of the case, he determined that no weight should be attached to it. Mr Shabbir submitted that the question weight was properly a matter for the Judge.
33. We observe Mr Shabbir's considered submission, but the Judge referenced the public interest elsewhere in his decision, and we must have regard to his observations at paragraphs 25 to 28, including in particular, at paragraphs 25 and 28 of his decision, including in particular, at paragraphs 25 and 28:
25. … but I have already found that the respondent is barred from relying on the appellant’s poor immigration history by a combination of the First-tier Tribunal’s decision in 2016, and the respondent’s own decision in 2019…
28. I weigh the factors in the appellant’s failure against the respondent’s reliance on an argument they cannot competently pursue – because their 2019 decision bars them from relying on the appellant’s previously poor immigration history. (Emphasis added)
34. So, while the Judge does use the word ‘weigh’ on several occasions, including in paragraph 28, we find that he does not in fact put the appellant’s previous immigration history in the balance because he considers that it is no longer a relevant factor. This is not the same as giving it no weight. We find that the Judge failed to have regard to the public interest in his assessment of proportionality. Of itself this is a material error of law which requires the decision to be set aside; however, we have also considered the other grounds of appeal.
Did the Judge give adequate reasons?
35. The Judge gives two reasons for not considering the appellant’s public interest. The first is the previous Judge’s decision in 2016 and the second is the respondent’s decision to grant leave to remain in 2019. The Judge simply relies on the fact of each of the decisions rather than considering the substance of them.
36. Mr Shabbir submitted that the Judge correctly applied the guidance given by the Immigration Appeal Tribunal (as it was) in Devaseelan v SSHD* [2002] UKIAT 00702 by taking the previous Judge’s findings as a starting point before finding that there was a valid reason to overlook the adverse immigration history of the appellant, namely his desire to see his children.
37. The appellant’s appeal in 2016 was allowed because he satisfied paragraph EX.1 of Appendix FM on the basis of his relationship with his younger son who was a minor at the time. In concluding that the provision was satisfied, the previous Judge found that the appellant had a genuine and subsisting parental relationship with a child under the age of 18 who was either British or who had lived in the United Kingdom for at least seven years and it would not be reasonable to expect the child to leave the United Kingdom. At paragraphs 29 and 31 of her decision, the previous Judge finds that the appellant meets all of the requirements of paragraph EX.1 of the Immigration Rules.
38. Having determined that the appellant satisfied the provisions of the Immigration Rules, the previous Judge was not required to conduct a balancing exercise, because as was confirmed by the Court of Appeal in TZ (Pakistan) and PG (India) V SSHD [2018] EWCA Civ 1109, so long as article 8(1) of the ECHR is engaged, satisfaction of the Immigration Rules is positively determinative of the article 8 appeal for the very reason that removal would be disproportionate. In other words, in circumstances where the Rules are satisfied, a balancing exercise taking into account the public interest is not required. So, while the previous Judge purported to have regard to the appellant’s previous immigration history, it was not material to the decision to allow the appeal.
39. We note that even if we were to accept that the appellant’s immigration history was a material consideration in the previous Judge’s decision, we do not agree with Mr Shabbir’s submission that the appellant’s desire to see his children was a reason for disregarding his immigration history. This is in our view not the focus of the previous Judge’s consideration of this issue. The focus of the previous Judge’s consideration was that the appellant’s efforts to re-enter the United Kingdom illegally after his removal on more than one occasion went to the genuine and subsisting nature of his relationship with the children. In other words, it provided context for his actions, but the previous Judge did not find that it justified them.
40. In respect of the decision to grant leave to remain in 2019, we do not accept Mr Shabbir’s submission that in making that decision the respondent must be considered to have taken the public interest, and therefore the appellant’s previous immigration history, into account. We do not consider that his reliance on the case of Archid Architects in support of that submission is apposite. Although the precedent in point is not controversial, it does not arise in the present case. In Archid Architects the two decisions made by the local authority related to the same application. In the present case, there are two decisions relating to two distinct applications.
41. The grant of leave to remain was made on the basis of an application made on 28 June 2019 and the evidence available at that time. The refusal of leave to remain challenged in this appeal related to a different, later application made on 10 May 2022 and the evidence available at that time. The grant of leave to remain made in 2019 was for limited leave to remain and the appellant was required to submit an application for further leave to remain in the event he wished to continue to stay in the United Kingdom. As Ms Isherwood correctly submitted, the respondent was entitled to and indeed required to assess the new application on the basis of the relevant law, Immigration Rules and evidence and to reach a decision as to whether or not the appellant continued to satisfy the requirements for a grant of leave to remain.
42. To rely on the 2019 grant of leave as a basis for saying that either the appellant’s previous immigration history cannot now be taken into account or that it should not be given any weight, more must be known about the basis of the grant of leave. All that is known is that the appellant made an application on the basis of his private and family life and that it was granted. If the application was granted on the basis that the appellant satisfied the provisions of Appendix FM, for example in relation to his relationship with a partner, or because he satisfied paragraph 276ADE(1)(vi), no consideration of proportionality would have been required. This is because if the provisions of the Rules are satisfied, including any suitability requirements, it is determinative of proportionality (following TZ and PG). It is only if the appellant had failed to satisfy the Immigration Rules that the respondent would have been required to go on and consider his application outside the Rules under article 8 of the ECHR and therefore turn her mind to the question of proportionality and the weight to be given to the public interest.
43. For these reasons, we find that the Judge’s mere reliance on the previous decisions was not sufficient, and we find that he did not give adequate reasons for not having regard to the public interest.
44. We also find that because the Judge did not have regard to the public interest, he did not turn his mind to the weight that should be given to the appellant’s previous immigration history, and as a consequence, he failed to give adequate reasons for the conclusion he reached on proportionality.
Conclusion
45. For the reasons set out above, we find that the Judge’s decision involved the making of the following material errors of law:
(i) A material misdirection of law that the respondent was barred from considering the appellant’s previous adverse immigration history when considering the public interest.
(ii) A failure to have regard to a relevant consideration.
(iii) A failure to give any/adequate reasons as to why the appellant’s previous adverse immigration history was not relevant to the public interest.
(iv) A failure to give adequate reasons for the conclusion that the respondent’s decision was disproportionate.
Disposal of the appeal
46. We sought the views of the parties on whether the appeal should be retained for remaking in the Upper Tribunal or remitted to the First-tier Tribunal for a fresh hearing. Mr Shabbir submitted that it ought to be remitted on the basis that there would need to be fresh findings of fact and that it was appropriate that these should be made by the First-tier Tribunal. Ms Isherwood submitted that the appellant had not made any challenge to the findings of fact and that the matter should therefore be retained for a remaking decision in the Upper Tribunal.
47. Having had regard to paragraph 7.2 of the Practice Directions and what was said by the Court of Appeal in AEB v SSHD [2022], Civ 1512, we find that the appeal should be remitted to the First-tier Tribunal for a fresh hearing. This is because given our findings, we cannot simply remake the decision without submissions and further evidence. We considered that the extent of the fact finding required means that it is appropriate to remit the appeal.
48. We considered whether any of the Judge’s findings ought to be preserved but conclude that the material errors of law identified above have adversely infected the decision as a whole. Consequently, we decide that no findings of fact are properly to be preserved. It follows that all issues will be live before the First-tier Tribunal.
Notice of Decision
49. The decision of the First-tier Tribunal involves the making of an error of law and that decision is set aside in its entirety.
50. The appeal is remitted to the First-tier Tribunal at Glasgow for a de novo hearing before any judge other than Judge Doyle.
J K Swaney

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 March 2025