Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004136
First-tier Tribunal No: EU/53603/2023
HU/62252/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

01st July 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

FLORIN PREDI
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Jebb
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 30 June 2025

DECISION AND REASONS
1. The appellant, a citizen of Romania, appealed to the Upper Tribunal with permission against the decision of First-tier Tribunal on 8 July 2024 dismissing his appeal against a decision made on 21 July 2021 to refuse his application for leave to remain under Appendix EU made on 10 May 2021 and a decision made on 3 October 2023 to refuse his application made on 8 August 2023 under Appendix FM.
2. By a decision promulgated on 14 April 2024, Upper Tribunal Judge Rintoul set aside the decision of the First-tier Tribunal and directed a resumed hearing in the Upper Tribunal. Following a Transfer Order, I conducted the resumed hearing at Belfast on 30 June 2025 and reserved my decision which I now give.
3. The appellant and sponsor, his partner, were present at court but did not give evidence, Mr Mullen, for the Secretary of State, having indicated that he did not wish to cross examine them. The hearing proceeded on the basis that both parties agree that the relationship of the appellant and sponsor began before the appellant entered the United Kingdom.
Submissions
4. Mr Jebb submitted (i) the appellant had been granted a Certificate of Application (COA) and that, although the appellant could not succeed in an application under the Appendix EU or Appendix FM, he had not sought to circumvent the Immigration Rules by entering the United Kingdom as a visitor and then remaining to apply for settlement (ii) that it was for the appellant to show that the decision under appeal would lead to his suffering unjustifiably harsh consequences and he would suffer such consequences if required to apply from abroad for entry clearance (iii) given that the parties now accept that Section 117B(4) of the 2002 Act does not apply to the appellant, significant weight should be given to the fact that the appellant and sponsor’s relationship had begun before he came to the United Kingdom.
5. Mr Mullen submitted that (i) the correct application of section 117B(4) should not result in a polar reversal of the incorrect analysis of the First-tier Tribunal; significant weight should not necessarily attach to the fact that the relationship had begun outside the United Kingdom and prior to the appellant’s arrival. (ii) requiring the appellant to apply for entry clearance would not result in unjustifiably harsh consequences for the appellant or his partner. On the contrary, it would be proportionate in all the circumstances.
Discussion
6. I have applied Section 117 of the 2002 Act as follows:
7. Section 117B(1) provides that the maintenance of effective immigration controls is in the public interest. I have considered the decision of the Upper Tribunal in Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC). I accept that the appellant has not been in the United Kingdom illegally; he entered as a visitor and the then was here lawfully having been issued with a COA whilst he made an application to remain. However, as Mr Jebb acknowledged, the appellant could not succeed under either the Appendix EU or Appendix FM provisions under which he then applied. I find that the particular circumstances under which the appellant has remained in the United Kingdom, albeit lawfully by operation of the COA, are not particularly compelling; he may have enjoyed lawful status but clearly would have been aware that his applications under the Appendix EU and Appendix FM stood no realistic chances of success. I find that, whilst perhaps not applying with the same force as in the case of an individual who has entered or remained unlawfully, there is a public interest in maintaining an effective system of immigration control by requiring the appellant to apply for entry clearance from abroad. Requiring the appellant, in these circumstances, to leave the UK, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls. I note that that was the view of the Upper Tribunal in Younas, where the appellant was also found to have been residing lawfully in the United Kingdom.
8. Following Rhuppiah v SSHD [2018] UKSC 58 at para. 57, I treat sections 117B(2) (ability to speak English) and 117B(3) (financial independence) as neutral factors.
9. Section 117B(4) is not applicable because the appellant has not been in the United Kingdom unlawfully. I agree with Mr Mullen that this is not a factor which should be accorded significant weight, as Mr Jebb submitted. It is, along with section 117B(2) and (5) essentially a neutral factor.
10. Section 117B(5) (little weight to a private life established when a person's immigration status is precarious) does not apply to the appellant's relationship with his partner because (a) the relationship engages his family, rather than private, life; and (b) his family life with his partner was established in Romania before he came to the United Kingdom; ie not at a time when his immigration status was precarious.
11. At the resumed hearing, I asked Mr Jebb if there was any evidence of the length of time the appellant would be likely to remain in Romania whilst he made an application for entry clearance. I was told that he was not. I am reminded that it is for the appellant to produce evidence to discharge the burden of proof in the appeal. There is no evidence that a temporary separation would cause either the appellant and sponsor significant difficulties or emotional distress. The appellant has previously lived in Romania and will have no obvious problems residing there whilst he makes the necessary application for entry clearance. Given the weight which I find should apply to the public interest under section 117B(1), I am do not find anything factors which outweigh that interest, let alone which may amount to unjustifiably harsh consequences. Balancing the factors weighing for and against the appellant, I reach the firm conclusion that his removal, in order to make an entry clearance application from Romania, is proportionate.
Conclusion
12. In the circumstances, I remake the decision and dismiss the appellant’s appeal against the decisions of the Secretary of State dated 21 July 2021 and 3 October 2023 on human rights grounds.
Notice of Decision
I remake the decision and dismiss the appellant’s appeal against the decisions of the Secretary of State dated 21 July 2021 and 3 October 2023 on human rights grounds.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 30 June 2025