Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002844

First-tier Tribunal No: HU/58005/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th June 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

Vuka Ngwane Shabangu
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of State for the Home Office
Respondent

Representation:
For the Appellant: Mr Broachwalla Instructed by Sunrise Solicitors
For the Respondent: Mr Hulme, Senior Presenting Officer

Heard at Field House on 10 June 2025

DECISION AND REASONS
1. The Secretary of State appeals against a decision of First-tier Tribunal Judge O’Keefe promulgated on 20 May 2024, allowing Mr Shabangu’s appeal on Article 8 ECHR grounds.
Background
2. Mr Shabangu is a national of South Africa. He entered the UK as a visitor on 10 April 2019. He was subsequently granted leave outside the immigration rules on compassionate grounds to care for his mother who subsequently passed away from cancer. On 17 June 2022, he applied for leave to remain in the UK on human rights grounds. That application was refused on 15 June 2023. This is the decision under appeal.
The decision of the First-tier Tribunal
3. The judge found that Mr Shabangu could not meet paragraph 276ADE(1)(vi) of the immigration rules because there are no very significant obstacles to his integration in South Africa. The judge then turned to the Article 8 ECHR proportionality exercise. The judge found that the public interest in maintaining immigration control was outweighed by the exceptional circumstances in the appeal. The judge allowed the appeal pursuant to Article 8 ECHR.
Grounds of appeal
4. The grounds of appeal were very brief. It is asserted that the judge erred by using Article 8 ECHR as a general dispensing power contrary to the guidance of the Court of Appeal in Patel and others v SSHD [2013] 3 WLR 1517 UKSC 72. The judge said that it would be disproportionate to remove the appellant before his course finished on 28 October 2024. The judge materially erred by finding that the appellant’s education outweighed the public interest in maintaining immigration control.
Permission to appeal
5. Permission to appeal was granted by Deputy Upper Tribunal Judge Parkes on 5 July 2024.
6. There was no rule 24 response.
Submissions
7. Both parties made brief submissions which are recorded in the record of proceedings. Mr Hulme relied on the grounds of appeal. He did not expand upon the arguments therein apart from to argue that the judge could not take the appellant’s education in the UK into account in the proportionality exercise. Mr Boachwalla took us through the decision and submitted that the judge had directed herself properly in respect of the law, taken into account statutory considerations and having taken into account a range of matters in a holistic consideration, found that the balance of proportionality lay in the favour of Mr Shabangu. He submitted that the judge’s approach was lawful and rational and that the grounds amount to a quarrel with the outcome of the appeal.
Discussion and analysis
8. We note firstly that there was no factual dispute in this appeal. Mr Shabangu’s immigration history is agreed, as is the fact that he was granted leave to remain in the UK outside of the immigration rules in order to care for his terminally ill mother who subsequently died of cancer. It is agreed that he has always remained lawfully in the UK. It is also agreed that Mr Shabangu has worked as a care worker in the UK and was undertaking a City and Guilds Level 3 NVQ Diploma in Health and Social Care at the date of the appeal hearing.
9. The appellant’s application was on the basis of his private life in the UK. His application was refused because the Secretary of State decided that he could not meet the requirements of the immigration rules in respect of private life and there would be no unjustifiably harsh consequences for the appellant to be removed from the UK.
10. The issues in the appeal as set out in the respondent’s review were:
a) Are the requirements of paragraph 276ADE(1) of the immigration rules met
b) Is the refusal decision a breach of Article 8 ECHR
11. At [7], the judge clearly set out that these were the issues.
12. In support of his appeal, the appellant produced a bundle which included a witness statement, confirmation of his employment and references from the couple who employ him, one of whom has Alzheimer’s and the other who has age related problems (and their adult children) who attested to his professionalism and the degree of care provided by him, including personal care, ensuring safety, cooking and shopping.
13. The bundle also included a skeleton argument prepared by Mr Broachwalla which referred to GM (Sri Lanka) [2019] EWCA Civ 1630 which sets out various propositions about the Article 8 ECHR proportionality assessment including that the test is whether a “fair balance has been struck between competing public and private interests”, the need for proper evidence and the fact that in principle there is no limit to which factors in a given case might be relevant to the evaluation under Article 8 ECHR. The skeleton pointed to various factors relevant to the proportionality exercise including the appellant’s studies, his job as a care worker (a shortage occupation), his positive contribution to UK society and the references from his employers and other individuals.
14. At [9] to [11] the judge has manifestly directed herself properly to the law in respect of the immigration rules in respect of private life. There is no challenge to the finding that there would be no very significant obstacles to the appellant’s integration to South Africa given that he has spent the majority of his life there, has family there, is familiar with the language and culture and in good health. The judge properly found that Mr Shabangu could not meet the rules in respect of private life.
15. The judge turns to the proportionality assessment at [16]. The judge correctly directs herself to consider section 117B of the Nationality, Immigration and Asylum Act 2002. The judge also properly directs herself to adopt a balance sheet approach, weighing the public interest in maintaining immigration control against the strength of the appellant’s private life.
16. At [17] the judge then turned to those matters weighing in favour of the public interest. The judge took into account that Mr Shabangu does not meet the requirements of the immigration rules. She took into account that Mr Shabangu’s stay in the UK has always been “precarious” and that she is obliged to attach little weight to this, although that does not mean no weight. The judge noted that the appellant speaks English and is financially independent which are neutral factors.
17. Thus far we can discern no error.
18. The judge then goes on at [18] to look at those factors weighing in favour of the appellant. The judge noted that this was “an unusual case” because Mr Shabangu is mid-way through studies to obtain a City and Guilds Level 3 NVQ Diploma in Health and Social Care which he had funded himself through working part time. The judge noted that Mr Shabangu had completed the mandatory part of the course and has 7 units left with an onsite observation in order to complete the qualification.
19. At [19] the judge takes into account other factors weighing on the appellant’s side of the balancing exercise. She takes into account that he has always had lawful residence and that he has worked and studied in the UK. She refers to a number of references which speak highly of his professionalism as a carer. She notes that he is shortly to finish a course as an adult carer and takes into account that care workers are on the government’s shortage occupation list or Immigration Salary List. She notes that he has invested in his fees and that he will lose his investment if he does not complete the course.
20. At [20] the judge finds that there are “exceptional circumstances” and that the balance of proportionality falls in favour of Mr Shabangu.
21. The Secretary of State’s argument is that the judge has misdirected herself in law following Patel. Patel was a case concerning foreign students who had not been able to meet the requirements of the rules in respect of their studies. It was established in this authority that there is no protected right to pursue adult education and Lord Justice commented at [57],
“It is important to remember that Article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State’s discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ’s call in Pankina for “common sense” in the application of rules to graduates who have been studying in the UK for some years (see para 47 above). However such considerations do not by themselves provide grounds for appeal under Article 8 which is concerned with private or family life not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under Article 8.”
22. We do not understand that the judge in this appeal found that Mr Shabangu had protected rights as a result of his studies in the UK. She found at [12] that the Mr Shabangu had been working and studying in the UK and that Article 8 ECHR was engaged in respect of his private life. There was no challenge to this finding by the respondent. The judge has not erred in this respect. AG Eritrea v SSHD [2007] EWCA Civ 801 at [28] is authority for the proposition that the threshold of engagement for Article 8 ECHR is not particularly high.
23. It was not pleaded in the written grounds that the judge’s approach to the proportionality exercise was irrational nor that it took into account immaterial considerations.
24. We were not referred to any authority by Mr Hulme which states that the appellant’s investment and completion of his studies could not be considered within the proportionality exercise.
25. The judge clearly had in mind a range of factors when considering proportionality. She gave weight not only to the fact that the appellant is studying and mid-course but also to his work as a carer and to the evidence before her of the quality and importance of the appellant’s care work to his employers. The judge was also manifestly gave weight to the fact that care work is a shortage occupation.
26. In our opinion the judge weighed up the various factors in the proportionality exercise and found that a holistic consideration of the factors weighed in favour of the appellant. We are not satisfied that the judge used Article 8 ECHR as a general dispensing power.
27. We take into account the words of Reed LJ in Henderson v Foxworth Investments Ltd [2014] UKSC 41 at [62];
“It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”
28. We take into account in this respect the high threshold to demonstrate that a finding is irrational.
29. We do not find that the proportionality assessment was irrational, nor that it failed to take into account factors in favour of the Secretary of State, nor that it took into account immaterial considerations in favour of Mr Shabangu.
30. The conclusion, however generous, was one open to the judge and was not a decision that no reasonable judge could have reached.
31. We therefore find that the grounds of appeal are not made out and amount to a disagreement with the decision.
32. We also note that it is open to the Secretary of State to decide the length of leave which should be granted to Mr Shabangu. Mr Shabangu will no doubt have to make a further application to extend his leave and at that point his circumstances will be considered afresh.

Notice of Decision
1. The Secretary of State’s appeal is dismissed.
2. The decision allowing Mr Shabangu’s appeal on human rights grounds is maintained.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 June 2025