Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003214

First-tier Tribunal No: HU/50002/2023
LH/02338/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 June 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

ABDUL GONI
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Ferguson, of Counsel, instructed by Kalam Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 24 June 2025

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Bangladesh born on 27th December 1954. He came to the UK in May 2005 on a visit visa and overstayed. He made an application to remain on human rights grounds on 26th August 2021 which was refused in the decision under challenge on 19th December 2022. The appellant’s appeal against the decision was dismissed by the First-tier Tribunal Judge after a hearing on the 14th of July 2023.
2. Permission to appeal was granted by Upper Tribunal Judge Lodato on 20th August 2024 on ground two only. It was found that ground two made it arguable that the First-tier judge had erred in law by failing to consider that the relationship between the appellant and his nephew was a family life rather than a private life relationship when a family life relationship was argued for in the skeleton argument. It is found to be arguable that the outcome of the appeal might have been different if this relationship had been considered in this way.
3. A hearing on 29th October 2024 before Upper Tribunal Judge Blundell was adjourned so that the appellant could decide whether he wished to apply for a transcript of the hearing before the First-tier Tribunal. Kalam Solicitors supplied a copy of the EX107 application form for the transcript to the Upper Tribunal on 15th November 2024. Judge Blundell had directed that the transcript should be filed with the Upper Tribunal 72 hours after receipt by the solicitors. When the transcript had not been received by the Upper Tribunal by March 2025 Judge Blundell fixed a case management review hearing on 2nd April 2025, and it transpired that there had been a misunderstanding with respect to the transcript, and so it was agreed by Mr West (Counsel instructed by Kalam Solicitors) and Mr Walker (Senior Home Office Presenting Officer) that there should be a listening appointment for the two parties as soon as possible.
4. The listening appointment was arranged for 16th May 2025. Both parties informed me that it had been agreed by Mr Walker following this listening appointment that the First-tier Tribunal had erred in law by failing to consider the argument made that the relationship between the appellant and his nephew was a family life one, and further it was accepted for the respondent that this error was a material one. Although Ms McKenzie had no reasoning provided by Mr Walker as to why the error was considered material it was agreed by both parties that pragmatically it was best to proceed to a remaking hearing at which any arguments going to the ultimate materiality of the error could be made.
5. In these circumstances I found an error of law by consent due to the First-tier Tribunal failing to consider whether the relationship between the appellant and his nephew was a family life rather than private life relationship as advocated for by those acting for the appellant, and that this error was material as it could not be said the outcome of the appeal would inevitably be the same if the relationship were found to be family life rather than a private life one as greater weight might be attributed to it in the ultimate balancing exercise.
6. Both parties were content to proceed with remaking on the basis of submissions only. Ms Ferguson helpfully pointed out that she would be arguing that the appeal would need to be remade in two ways: firstly that the appellant now qualified to remain under the Immigration Rules at Appendix PL 5.1 (a) because he had been in the UK continuously for more than 20 years; and secondly on the basis that he had a family life relationship with his nephew and other family and that this relationship should be given weight making his removal disproportionate when the appeal is considered more broadly under Article 8 ECHR.
7. At the end of the hearing I reserved my decision.
Submissions – Remaking
8. Ms McKenzie submitted that whilst it was accepted by the respondent that the appellant had entered the UK on 26th May 2005 neither the immigration history nor the reasons for refusal letter dated 19th December 2022 accepted explicitly that the appellant had remained in the UK continuously since that time. She argued that an assessment was needed of the continuity of the appellant’s residence, and in his witness statement the appellant had accepted that he had not kept old documents to prove the continuity of his residence.
9. In relation to the issue of family life Ms McKenzie accepted that the appellant has a family life relationship, the test being whether there is a relationship demonstrating real or committed or effective support going beyond normal emotional ties, with his nephew and his sister and her family, but noted that no one had said in their witness statements that they would not be able to send money abroad were the appellant to have to leave the UK and they also had not said they would not be able to visit the appellant were he to reside in Bangladesh. She argued therefore that significant weight, beyond the little weight given to the relationship by the First-tier Tribunal, was not attributable to this relationship and so the re-characterisation from private to family life did not affect the outcome of the appeal. Further she argued that weight should not be given to the appellant’s use of the health service for his ill-health, applying Akhalu (health claim: ECHR Article 8) [2013] UKUT 400, as the public interest in preserving the health service for those it should be serving outweighs any issues of the appellant obtaining lesser treatment in Bangladesh.
10. Ms Ferguson argues that it is in fact clear from the reasons for refusal letter and respondent’s immigration history summary that the respondent accepted that the appellant had entered the UK on 26th May 2005 and had resided continually since that time. The witness evidence was all consistent that he had resided for this whole period in his sister’s house in east London. There had never been a contention by the respondent that the appellant had left the UK since May 2005. Further, the First-tier Tribunal had also accepted that the appellant had been in the UK since May 2005. In these circumstances there was no longer any public interest in the appellant’s removal as he would be successful if he made a new application to remain under Appendix PL on the basis of 20 years continuous residence. The appellant’s removal would therefore be a disproportionate interference with his right to respect for private life.
11. In addition Ms Ferguson argued that the re-categorisation of the appellant’s relationship with his nephew and family as a family life relationship meant that significant weight could be attributed to this relationship as s.117B of the Nationality, Immigration and Asylum Act 2002 no longer applied as this only requires little weight to be given to private life ties and a relationship with a qualifying partner formed whilst a person has been precariously or unlawfully present in the UK. It was therefore open to the Upper Tribunal to place significant weigh on the family life ties of the appellant in the UK, and this should be done because of the sustained and long-term nature of the emotional and financial dependency in this case which was central to the appellant’s well-being.
Conclusions – Remaking
12. The first matter to determine is whether the appellant is entitled to succeed in his appeal by reference to Appendix PL 5.1 (a) of the Immigration Rules on the basis that he is over 18 years and has “been continuously resident in the UK for more than 20 years” : if the appellant can show that he would succeed if an application was now made under the Immigration Rules on this basis then there would be no public interest in his removal from the UK and his private and family life ties to the UK would make his removal disproportionate. I find that the position of the First-tier Tribunal when the statements at paragraphs 21-22, 34, 36, 41(b) are considered is, as is stated at paragraph 34 of the decision, that the appellant “has been residing in the UK since 2005”. This conclusion is in line with the evidence of the appellant himself at paragraph 10 of his witness statement, and that of his sister at paragraph 2 of her statement. It is clear from the respondent’s summary and reasons for refusal letter that the appellant entered the UK on 26th May 2005 and made an application for further leave to remain in September 2007. The refusal letter does not refute the contention that the appellant had lived in the UK continuously since May 2005. Since 2011 the appellant has also been registered with a GP, the Goodman’s Field Health Centre, and has attended his doctor on a regular basis since that time. Starting from the unchallenged findings of the First-tier Tribunal and considering the evidence as a whole I find that the appellant has, on the balance of probabilities, been continuously resident in the UK since 26th May 2005, and thus for a period of 20 years and four weeks. It is not argued by the respondent that the appellant cannot meet any of the suitability aspects of the Rules in Appendix PL, so I find that if an application were now made the appellant would be entitled to succeed under the Immigration Rules.
13. I am therefore satisfied that there is no public interest in his removal as he is able to meet the requirements of the Immigration Rules to remain on private life grounds. His removal would therefore be a disproportionate interference with his right to respect for private and family life: the private life ties formed with friends and community over this period and the family life ties that the parties both agree he has as a result of his having integrated himself into his sister’s family, and particularly with his nephew, over the past 20 years resulting in emotional and financial ties which go beyond the normal emotional bonds between uncle and nephew.
14. In these circumstances it is not necessary for me to separately decide if the appellant would succeed in this appeal on the basis that his relationship with his sister and nephew, which was weighed in the appellant’s favour at paragraph 41 (a) of the decision as part of his private life by the First-tier Tribunal, must now be weighed in his favour as a family life relationship. However, if I were, for completeness, to continue and make findings on this separate basis I would agree with Ms Ferguson that if these relationships were weighed as family life instead of private life they could be given greater weight, as the statutory consideration meaning only little weight should be given to the relationships, articulated by the First-tier Tribunal at paragraph 42 of the decision, would not apply. I also find that these relationships would in fact be given greater than little weight as family life, as they are very long-standing ties with both emotional and financial aspects. On the other hand the First-tier Tribunal also found that the appellant has a continuing family life relationship with his wife and children in Bangladesh and would be able to reside with them in Bangladesh were he to return, as set out at paragraphs 23 and 24 of the decision, so the appellant would not be without a family life if returned to Bangladesh, and as Ms McKenzie has argued UK based family would be able to visit the appellant and send some financial support to him in Bangladesh. Considering all of the preserved findings of the First-tier Tribunal and evidence I find that whilst the appellant would have more in his favour with the relationship with his sister, nephew and UK family re-categorised as family life the public interest would still not be outweighed were he not able to succeed due to meet the Immigration Rules at Appendix PL.
15. I reiterate that ultimately the fact that the “family life re-categorisation factor” alone does not permit the appellant to succeed is of no significance as the appellant is entitled to succeed in his appeal because I find that he can now meet the requirements of the Immigration Rules at Appendix PL, and so there is no public interest in his removal and so it would be a disproportionate breach of Article 8 ECHR to remove him given his private and family life ties to the UK.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal.
3. I re-make the decision in the appeal by allowing it on Article 8 ECHR grounds.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24th June 2025