Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003179

First-tier Tribunal No: HU/57353/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

JANNATUL FERDOUS
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain (Gigalehal Solicitors)
For the Respondent: Mr Terell (Senior Home Office Presenting Officer)

Heard at Field House on 13 February 2025

DECISION AND REASONS

1. By a decision dated 10 May 2024 First-tier Tribunal (FtT) Judge Codd (‘the judge’) dismissed an appeal brought by the appellant, a citizen of Bangladesh, against a decision of the Secretary of State dated 1 June 2023 that refused her application for leave to remain on human rights grounds. The appellant now appeals to this Tribunal against the decision of the judge.
2. The judge heard the appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

Factual Background

3. The issues on appeal to this Tribunal are relatively narrow in scope. What follows will only be a summary of the essential facts.

4. The appellant entered the UK as the dependant of a Tier 4 student on 10 January 2018, with leave to remain until the 26 May 2019. She submitted a further application as a dependant spouse on 24 May 2019, but this application was void on 25 September 2019. On 23 September 2019 she applied for indefinite leave to remain as a dependant spouse, but this was refused on 17 September 2020. The appellant appealed that decision which was refused by FtT Judge Barker on 6 January 2022. The appellant was appeal rights exhausted on 1 April 2022.

5. On 21 April 2022 the appellant submitted a further application for leave to remain as a spouse and it is that application for leave which is subject to this appeal.

6. The respondent refused the appellant leave under the immigration rules on the basis that at the date of the application the appellant had no valid leave, her English language requirements were out of date and the rules were not complied with. The respondent also refused the application under EX1 and EX2 of Appendix FM of the immigration rules stating that there was insufficient evidence of insurmountable obstacles on return to Bangladesh as a family unit. The respondent considered there were no exceptional circumstances which could be applied to the appellant’s case.

7. The appellant appealed on the basis that she meets the requirements of EX1 of Appendix FM. She argued that on 20 April 2022 her husband obtained indefinite leave to remain via the 10 year lawful residence route. Since her application both of her children had also acquired British citizenship.

8. The appeal before Judge Codd was listed for a determination on the papers. There was a bundle of 163 pages before the judge. As the matter was determined on the papers, the Judge did not hear any evidence nor oral submissions in this matter. The issues before the judge were (a) whether the appellant had demonstrated that the immigration rules were met, and (b) whether the appellant’s removal would be disproportionate under Article 8 ECHR.

Decision of Judge Codd

9. The judge dismissed the appellant’s appeal, making the following findings:

a. S.117B NIAA 2002 is considered. The question under EX1 is whether there are insurmountable obstacles that would be faced. The question outside the rules is whether there are unjustifiably harsh consequences for the appellant or a family member, such that refusal is not proportionate (§§10-11 FtT Decision).
b. The previous Determination of Judge Barker, dated 16 December 2021, was the starting point and there could only be departure from the findings made based on evidence which was not before the Tribunal previously (§12 FtT Decision).
c. The burden of proof was on the appellant and the standard was the balance of probabilities (§13 FtT Decision).
d. The appellant submitted an English language certificate dated 10 June 2023 and met the English language requirement (§15 FtT Decision).
e. There was no evidence of the spouse’s ongoing employment. The role was temporary and to be coming to an end on 30 November 2023. There was no evidence of employment ongoing since October 2023. The spouse did not meet the financial requirements at the date of the application and had not shown they were met at the date of hearing (§16 FtT Decision).
f. The appellant did have breaks in her leave based upon the respondent’s chronology and did not have leave at the point of making the current application. In any event, this was a factor to which minimal weight was attached to (§17 FtT Decision).
g. The appellant’s husband held ILR. Even if he had British nationality he was likely to be a dual national and these factors did not prevent his return (§18 FtT Decision).
h. The appellant’s children were British but there was no evidence that they were not dual British-Bangladeshi nationals. There was no practical reason why they could not relocate. The evidence did not show particular needs which would impact ability to relocate (§19 FtT Decision).
i. The appellant was being investigated for and receiving treatment for a knee condition. There was no evidence on the limitations this caused or why treatment could not be obtained in Bangladesh. Judge Barker made similar findings on this issue. As such, little reliance was placed on this factor (§20 FtT Decision).
j. There was no specific evidence on the difficulties the appellant would face. Judge Barker found that the appellant and her husband could return (§21 FtT Decision).
k. The appellant did not meet the rules having regard to the spouse’s income, the evidence, her children’s needs, her health. There would be no very significant obstacles to her integration on return (§22 FtT Decision).
l. There was no evidence to depart from the previous findings. The appellant had not discharged her burden of proof to show that matters would extend beyond mere difficulties. There appeared to be nothing to demonstrate (on balance) very significant obstacles for the appellant’s spouse and children accompanying the appellant upon return to Bangladesh (§23 FtT Decision).
m. Under EX1(a)(ii) the question was whether it would be reasonable expect the children to leave the UK. The children were aged 3 and 4, attended a pre-school, they had not commenced formal education, they were now British, they lived in a house where they were presumably bi-lingual, they could readily adapt to another language, and the children will have retained dual nationality. SD (British Citizen Children – entry clearance) Sri Lanka [2020] UKUT 00043 (IAC) is considered and nationality is not determinative (§§24-25 FtT Decision).
n. s55 of the Borders, Citizenship and Immigration Act 2009 is considered and the children’s welfare is a primary consideration, their life experiences would be different in the UK, there is nothing to suggest that their best interests cannot be achieved in any location, they need not be in the UK for their welfare, opportunities may vary in each country, both parents could live in Bangladesh, Judge Barker found that they would have family support on return, they will also have practical skills and be able to assert their rights, it had not been shown it would be unreasonable for the children to leave the UK (§§26-28 FtT Decision).
o. Whilst Article 8 was engaged, the factors raised by the appellant (namely good character, residence of 6 years, spouse’s ILR, children’s British nationality and the appellant’s health issues) did not outweigh the public interest. The appellant had not shown unjustifiably harsh consequences. There was no barrier to the family relocating and no evidence to show difficulties obtaining medical treatment (§§29-34 FtT Decision).

Issues on appeal to the Upper Tribunal

10. There were five grounds of appeal advanced. We summarise these here:

i. Ground 1: Judge Codd made an incorrect assessment of reasonableness test of A’s qualifying children who are British citizen. Alternatively, the judge’s analysis of whether it would be reasonable for the qualifying children to relocate was erroneous and flawed.
ii. Ground 2: The Judge failed to fulfil their statutory duty under section 55 of the Borders Citizenship and Immigration Act 2009 (‘the 2009 Act’) by failing to consider the best interest of A’s children.
iii. Ground 3: The Judge failed to consider private life under the immigration rules and Article 8 outside the Rules or take into account relevant case laws when assessing proportionality outside the Rules.
iv. Ground 4: The Judge failed to assess the A’s immigration status correctly and failed to consider the documentary evidence in the bundle.
v. Ground 5: The Judge failed to assess the financial requirement correctly.

11. Permission to appeal was granted by Upper Tribunal Judge Ruddick in a decision dated 15 November 2024. Permission was not granted on Ground 4. The decision says that ‘Ground 4 is not arguable and I direct that permission is not granted on Ground 4. It is not arguable that the applicant remains in lawful status as a result of having made an application for further leave within 14 days of becoming an overstayer.’

12. Mr Terrell relied upon EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 00117 (IAC) and submitted that the scope of the error of law hearing was limited by the decision. Mr Hussain confirmed before us that he did not pursue Ground 4. We as such do not consider this ground.

13. Both Mr Hussain and Mr Terrell made submissions on the other grounds advanced. Mr Terrell opposed the appeal.
The law
14. The jurisdiction of the Upper Tribunal on an appeal from the First-tier Tribunal lies only in relation to an error of law, not a disagreement of fact; see R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 9. The criteria there summarised by the Court of Appeal include the following:

i. Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii. Failing to give reasons or any adequate reasons for findings on material matters;
iii. Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv. Giving weight to immaterial matters;
v. Making a material misdirection of law on any material matter;
vi. Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii. Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
15. It is important, as has been repeatedly emphasised in many authorities, not to construe disagreements of fact as errors of law. See the decision of the Presidential Panel in Joseph (permission to appeal requirements) [2022] UKUT 218 IAC at paragraphs 13-14:

13. … As Warby LJ put it in AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948; [2021] Imm AR 1499 at [32]:
“Commonly, the suggestion on appeal is that the FTT has misdirected itself in law. But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.”

14. Warby LJ recalled the judgment of Floyd LJ in UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [19]:
“…although 'error of law' is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter.”

16. We remind ourselves of EA v SSHD [2017] EWCA Civ 10 at §27 ‘Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". See also Quarey, R (on the application of) v SSHD [2017] EWCA Civ 47 at §36 onwards.

Our decision

Ground 1
17. We summarise ground one as advanced orally and in pleadings. The appellant argues that the Judge failed to consider and refer to AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC) which was a significant legal error. It is said that section 117B (6) of the Nationality Immigration and Asylum Act 2002 (‘NIAA 2002’) states that the public interest does not require the removal of a person if the person has a genuine and subsisting parental relationship with a qualifying child (a British citizen or a child who has lived in the UK for seven years continuously) and it would not be reasonable to expect the child to leave the UK. Judge Codd did not consider the health issue of A’s child, SK, who has disability being diagnosed having autism and is currently in receipt of Disability Living Allowance (‘DLA’). Further, the Judge's assertion that the children’s other nationality must be rescinded for their British citizenship to be relevant in their parent’s appeal was baseless and unsupported by any legal precedent. British citizenship inherently carries specific rights and privileges that should be duly considered in their own right, irrespective of any other nationalities held by the children. Judge Codd referenced the case of SD (British Citizen Children – entry clearance) Sri Lanka [2020] UKUT 00043 (IAC) but this was irrelevant to the Appellant’s situation because it involved an entry clearance appeal. It was not reasonable to expect British citizen children to leave the UK to maintain family unity, particularly when their father is also a British citizen.

18. We raised with the representatives whether the children’s nationality was a new matter before the FtT and whether consent had been given for this to be considered under s85 NIAA 2002. Mr Terrell accepted that the respondent’s review did consider the same and there was as such implicit consent and it would be mischievous for the respondent to say otherwise.

19. We were not taken to any particular parts of the authorities referred to by Mr Hussain orally or in the grounds of appeal.

20. The guidance given in AB (Jamaica) & Anor [2019] EWCA Civ 661 is as follows:

75. …It is clear, in my view, that the question which the statute requires to be addressed is a single question: is it reasonable to expect the child to leave the UK? It does not consist of two questions, as suggested by the Secretary of State. If the answer to the single question is obvious, because it is common ground that the child will not be expected to leave the UK, that does not mean that the question does not have to be asked; it merely means that the answer to the question is: No.

21. The guidance given in JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC) is set out below:

Headnote: Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so.

22. Having considered the authorities we are of the view that Judge Codd did ask the right question in this appeal, namely whether it was reasonable to expect the children to leave the UK. This is clear from §§24 and 28 of the decision where this test is specifically referred to and said to not be met on the basis of the evidence that was before the Tribunal.

23. The grounds incorrectly rely on the SK’s autism and receipt of DLA. As part of a Rule 15(2A) application the appellant has submitted two DWP letters which relate to DLA entitlements for SK. It is uncontentious that this was not evidence that was before Judge Codd and as such this is plainly not evidence or information that the judge failed to have regard to. This was a paper hearing and the Judge did not have the benefit of oral evidence.

24. It is incorrectly asserted that the Judge stated that the children’s Bangladeshi nationality needed to be rescinded for their British citizenship to be relevant. This is not what Judge Codd said. Indeed what the Judge did say was that acquisition of British citizenship was not determinative, they were dual nationals, they were bi-lingual or could learn a language at a young age, they had not commenced formal education, as nationals they would have rights in Bangladesh and different opportunities there, the children would have their parents with them and other family support there too (Judge Barker having found this in the previous decision), they had no particular needs which would make their relocation unreasonable, and they would be able to integrate (see §§24-28 of the FTT Decision). This is an assessment of reasonableness as required by Appendix FM EX1(a) and s117B(6) of the NIAA 2002.

25. It is argued that British citizenship comes with rights and privileges that needed to be considered. The decision of Judge Codd shows that they were aware that opportunities were different in each country, they were aware of their education rights, they considered whether there would be separation from family and instead found there was further family in Bangladesh. We are of the view the consideration was adequate having regard to ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (see for example at §32 of ZH).

26. Mr Terrell highlighted in his submissions that there was no information or evidence before the FtT on the circumstances the children would face in Bangladesh. This is correct.

27. The grounds assert the importance of family unity and the father’s nationality being relevant. This was considered. Indeed IJ Codd states the papers before her demonstrated that the father of the children had ILR1, but if he was British he too was likely to be a dual national. It was considered that family unity would be maintained as the family would be returning together.

28. In respect of the Judge’s reference to SD (British Citizen Children – entry clearance) Sri Lanka [2020] UKUT 00043 (IAC), it is correct that this is an entry clearance case and that s117B(6) of the NIAA 2002 is not relevant to entry clearance applications. However, we do not consider the Judge fell into error by referring to this decision. The grounds of appeal refer to the heading of the decision written by Judge Codd referring to ‘Entry Clearance Officer’ and state that this further indicates misapplication of legal principles. Ultimately, as we have explained above, the Judge has applied the relevant test to the limited evidence before them and found it was not made out.

29. We therefore dismiss the appeal on this ground.

Ground 2
30. It is argued in this ground that Judge Codd failed to consider the position of the children, failed to give adequate reasons with reference to s55 of the 2009 Act, as per JO and Others (section 55 duty) [2014] UKUT 517, the Judge was required to be adequately informed and to conduct a scrupulous analysis in identifying the child's best interests and then balancing them with other material considerations.

31. S.55 of the 2009 Act was plainly considered and applied by Judge Codd (see §27 of the FtT decision).

32. The evidence before the FtT in respect of the children was limited. It consisted of birth certificates for the children, letters from their pre-school simply confirming attendance, citizenship registration certificates, British passports. The grounds and submissions we heard did not expand upon any factors or evidence that the judge had failed to consider in this regard. As we explain in our decision in respect of Ground 1, the Judge’s decision in respect of the children was reasoned.
33. We therefore dismiss the appeal insofar as ground 2 is concerned.

Ground 3
34. We have had some difficulties making sense of this ground. It is headlined as ‘the Judge failed to consider private life under the immigration rules and Article 8 outside the Rules or take into account relevant case laws when assessing proportionality outside the Rules.’ The detail in the written grounds of appeal then goes on to say ‘the Judge failed to consider that the importance of Appellant’s established family life with her British citizen husband and two British citizen children’, there was a failure to consider and apply GM (Sri Lanka) [2019] EWCA Civ 1630, there was a failure to adopt the balance sheet approach in assessing proportionality, the finding at paragraph 33 is not supported by evidence and relevant facts have not been taken into account. Further, it is said that Judge Codd relied on part of the previous determination to assess proportionality but failed to take into account that at the time of previous Judge’s findings the appellant’s children and husband were not British citizens. We work through these arguments below.

35. Before us Mr Hussain did not expand on the argument that there was a failure to consider the appellant’s private life. At §22 of the FtT Decision there is a finding that there would not be very significant obstacles to the appellant’s integration to Bangladesh. Her health is considered as part of this. Having considered the documents in the bundle and the arguments before us, it does not appear that there was particular evidence or argument before the FTT on this issue. We note the previous Determination made detailed findings on this issue too and Mr Hussain did not argue before us that there was any good reason to depart from those findings.

36. In respect of failure to consider Article 8 ECHR outside the rules or have regard to relevant authorities in doing so, it is our view the Judge does consider Article 8 ECHR outside the rules in the decision. It is trite to say that judges need not set out authorities.

37. Mr Hussain did not address in GM (Sri Lanka) [2019] EWCA Civ 1630 further. We read the grounds as arguing that the proportionality assessment outside the rules was not properly conducted and relevant facts were not considered. Mr Hussain did not tell us what factors he believed were not considered in the balancing exercise. S.117B is mentioned by the judge at §10 of the FtT decision. Contrary to the written grounds, the Judge specifically considered the appellant’s spouse’s and children’s status in the UK (§32(c) FtT Decision, for example). We remind ourselves that GM (Sri Lanka) held at §29 that ‘there is a requirement for proper evidence’ in an Article 8 ECHR claim and that ‘mere assertion by an applicant as to his or her personal circumstances and as to the evidence will not however necessarily be accepted as adequate’. It is important to note that the appellant’s and her family’s individual circumstances were considered and balanced by Judge Codd. This was an exercise carried out on the basis of the limited documents placed before the FtT.

38. In respect of the submission made in the grounds that the finding made at §33 of the decision was unsupported by evidence, we were not informed what aspect of this finding was unsubstantiated. We set out §33 of the FtT Decision here:

“I find that the factors raised by the appellant do not outweigh the public interest because the appellant has failed to evidence (on the balance of probabilities) why her removal would demonstrate an unjustifiably harsh consequence. Her evidence is limited and does not reveal any characteristics which impact her return (save for her knee condition) I consider that there is no barrier to the appellant’s husband and children relocating with her. I also find there is no reason why the appellant cannot continue to receive medical treatment in Bangladesh. If there is a difficulty obtaining treatment, the appellant has failed to evidence this.”

39. Reading this paragraph we are of the view, as we have repeatedly stated in this decision, that the evidence was limited. The reasonableness of her children returning was considered by the Judge as explained above and so was the position of her husband (that being done with reference to the previous Determination). We note that Judge Barker found in the previous decision that the appellant’s husband had spent most of his life in Bangladesh, he would be able to find work in a reasonable period of time, he had skills and experience from the UK, family there and friends here who could also support him.

40. As to the findings made on the appellant’s medical circumstances, the evidence in the FtT consisted of (a) three outpatient orthopaedic surgery letters for appointments on 30 November 2023 and 14 June 2023 and 31 March 2022, (b) an MRI department letter for an MRI on spine lumbar and sacral on 24 August 2023, (c) a routine EMG appointment letter for 22 July 2023, (d) a letter from a specialist in trauma and orthopaedics dated October 2021 which confirms that her name was added to a waiting list for arthroscopy and ACL reconstruction of her right knee, (e) a physiotherapy outpatient letter for 11 May 2022. There was no evidence of the current impact her knee condition had upon her, what her current treatment was, whether she would be able to obtain treatment on return or of what difficulties she would face in respect of this issue if returned.

41. As to the approach to the previous Determination, the Judge was clearly aware of Devaseelan and the change in facts in respect of status of the family members when reading the decision as a whole (see §12, §19 and §§23-28 of the FtT Decision for example). The Judge did not set out the guidance in Devaseelan fully but the appellant has failed to show how this was material or led Judge Codd into error.

42. We dismiss the appeal on this ground.

Ground 5
43. The appellant argues by this ground that the ‘the Judge failed to assess financial requirement correctly’. It is asserted that the appellant provided the required documents to fulfil the financial requirement, but the Judge incorrectly assessed the case based solely on mere speculation that the job was temporary, the appellant has since provided an up-to-date letter from the employer invalidating the Judge’s speculative erroneous finding in this regard.

44. Before us Mr Hussain accepted that as at the date of the application the financial requirements were not met. Mr Terrell referred us to Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC) in this regard. The appellant’s application was made on 1 April 2022. Her application was decided on 1 June 2023. The pay slips and bank statements before us relate to May/June 2023 to October 2023.

45. The evidence before the FTT included employment terms for the spouse which said his employment was temporary, starting on 21 May 2023 and ending on 30 November 2023. IJ Codd as such did not speculate in this regard. The updated employment evidence relating to the permanence of the appellant’s spouse’s employment referred to in the grounds was not before the FTT and was provided in to the Upper Tribunal in a Rule 15(2A) application.

46. It follows that the appeal is dismissed in this ground.

Conclusion

47. Having carefully considered the grounds, the submissions made before us by both parties, the relevant law and the limited evidence before the FTT we find that the grounds do not make out any material errors of law.

Notice of Decision

The decision of Judge Codd does not contain any material errors of law. This appeal is dismissed.

P.Solanki

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2025