Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004578
First-tier Tribunal No: HU/54319/2023
LH/04145/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 March 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

Oluseye Olamide Akinrinmade
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N. Bustani, instructed by Templeton Legal Services
For the Respondent: Ms S. McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 March 2025

DECISION AND REASONS
1. The appellant is a citizen of Nigeria who entered the UK lawfully as a visitor on 17 January 2020. In March 2020, he met his partner, who is a British citizen, and in January 2023, he applied for permission to remain in the UK on the basis of their relationship under Appendix FM of the Immigration Rules.
2. The purpose of this appeal is to determine whether the appellant should be allowed to remain in the UK with his British partner because his removal would be unlawful under section 6 of the Human Rights Act 1998.
3. One of my tasks in this appeal is to determine whether the appellant does, in fact, meet the requirements of the Rules – not because I can allow the appeal on the grounds that the Rules are met, but because the Rules express the respondent’s own view about what article 8 requires. If the Rules are met, that normally determines the appeal in the appellant’s favour.
4. The respondent accepted that the appellant met all but one of those requirements. It was accepted that he and his partner are in a genuine and subsisting relationship and that he met the suitability, financial and English language requirements of the Rules. However, the appellant has remained in the UK without permission since 31 July 2020. Because he is an overstayer, the Rules state that he can only be granted leave to remain if there are “insurmountable obstacles” to the couple continuing their family life together outside the UK or if there are “exceptional circumstances”. The respondent found that there were no such obstacles and no exceptional circumstances.
5. The appellant and his partner have pointed to a number of specific facts that they say, taken together, constitute insurmountable obstacles to their continuing their family life together in Nigeria. None of these facts are disputed. Most importantly, they include that the appellant’s partner provides essential personal care to her 89-year-old mother, who is also a British citizen, is registered blind and has a diagnosis of Alzheimer’s. The appellant helps her provide that care. In addition, the partner herself suffers from a series of medical conditions, for which she receives ongoing care. This includes regular scans of her eyes and injections into the retina of one eye, in order to prevent blindness.
6. It is only if the Rules are not met that I must consider whether requiring the appellant to leave the UK would be inconsistent with section 6 of the Human Rights Act 1998. That prohibits a public authority from acting inconsistently with the UK’s obligations under the European Convention on Human Rights (ECHR). The right that the appellant relies on here is the right to family and private life that is protected by article 8. Because there is only one family life, it is not only the appellant’s own rights under article 8 that are relevant, but the rights of his British citizen partner and – if it can be said that there is family life between them – between her and her British citizen mother.
Background
7. The appellant applied for permission to stay on the basis of his relationship on 31 January 2023. The respondent refused his application on 15 March 2023, and the appellant appealed. His appeal was dismissed by the First-tier Tribunal (“FTT”) in a decision dated 12 September 2024, but the appellant appealed successfully to the Upper Tribunal, and in a decision dated 18 December 2024, that decision was set aside. The decision of 18 December 2024 is included in the annex to this decision.
8. This decision is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, of the FTT decision that has been set aside.
Established facts
9. The factual findings made by the FTT were not challenged by either side, and they have been preserved. As set out in the Upper Tribunal (“UT”) decision of 18 December 2024, they include:
(i) The appellant and his partner were credible witnesses. Their evidence was “clear[,] detailed and consistent” and “supported by and consistent with the documents they had provided.” [20] of the FTT decision.
(ii) The partner’s mother was effectively blind, had mobility problems and had memory problems that were indicative of Alzheimer’s. She had previously refused outside care and was cared for by the partner [23]. The appellant also helped in her care [21]. The appellant’s partner would remain in the UK should the appellant be required to leave, because of her distress at having to leave her mother behind [24].
(iii) The partner had diabetes, asthma and PCOS and had “a number of appointments for surgery in the next few months to save her sight” [24].
(iv) The appellant had lost his business in Nigeria due to the effects of the COVID-19 pandemic. His father had passed away, but his mother and brother lived in Nigeria. His brother had mental health issues and used illegal drugs [21].
(v) The appellant genuinely feared for his partner’s safety in Nigeria due to the “political situation” and Boko Haram, but those fears were not well-founded [22]. The partner, for her part, had visited Nigeria and believed that it was a “broken country where nothing works.” [24]
The remaking hearing
10. The appeal came before me for remaking at Field House on 4 March 2025. I had before me a 157-bundle, which contained all of the evidence relied on by the parties before the FTT and 35 pages of additional medical evidence concerning the appellant’s partner. The appellant had not complied with directions and had not applied for permission to rely on that new evidence, but Ms McKenzie did not oppose its admission. The day before the hearing, the appellant had also emailed a letter from the partner’s GP, dated 26 February 2025, summarising her current medical conditions. Ms McKenzie initially opposed the admission of the late evidence, but I decided that it was in the overriding interest to admit it. The document is less than a page in length, and it contains no new information about the partner’s medical conditions, such that there was no perceivable prejudice to the respondent in admitting it. In addition, I considered that it would be helpful to the Tribunal to have the medical information summarised briefly in a single, up-to-date document.
11. As none of the facts in the appeal were in dispute, the appeal proceeded by way of submissions only.
12. Ms McKenzie relied on the initial refusal decision, to the extent that it was consistent with the preserved findings made by the FTT. Although she did not rehearse the contents of that letter, I note for the sake of completeness that the respondent’s position on the issues before me was that:
(i) The appellant did not meet the Immigration Status requirements of the rules because he was an overstayer and he did not meet EX.1. He did not meet EX.1 because the couple could relocate together to Nigeria, where the appellant’s family members could help support them.
(ii) There were no exceptional circumstances justifying a grant of leave to remain because the medical evidence did not show that the appellant was caring for his partner’s mother (this finding was, implicitly, no longer pursued by Ms McKenzie, as the FTT had found that he did assist in her care), and the partner could “seek support from other sources such as the NHS whilst you leave the UK and obtain the correct entry clearance”.
13. Ms McKenzie further submitted that there was no evidence that the partner could not live in Nigeria with the appellant. She accepted that the medical evidence showed that the partner was receiving ongoing care from the NHS, but she pointed out that the appellant had failed to provide any evidence that adequate care would not be available in Nigeria. She acknowledged that the FTT had found that the partner would not go to Nigeria, because she would remain in the UK to care for her mother, but she submitted that there was no evidence that the mother could not relocate to Nigeria with the couple. For this reason, there were no insurmountable obstacles to the couple continuing their family life in Nigeria.
14. Turning the article 8 balancing test outside the Rules, even if it was accepted that the partner would not relocate to Nigeria with the appellant, this interference with the couple’s family life was justified by the public interest in immigration control because the appellant was an overstayer. She initially submitted that the NHS could assist the partner in caring for her mother if the appellant left the UK, but then accepted that there was no evidence before me that the NHS provided the kind of day-to-day personal care that the appellant helped provide. She submitted, however, that it was for the appellant to show that personal care would not be available, and he had not done so.
15. She urged me to compare the appellant’s situation to that of the couples in Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 and infer that the various medical and care needs of the partner and her mother in this case could not justify a grant of leave to remain on article 8 grounds. She relied on Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 00129 (IAC) for the proposition that there could be a public interest in requiring a person to leave the UK to apply for entry clearance even if the application would be successful; this is now uncontroversial. She also submitted that it had established that if are were no insurmountable obstacles to the couple living together outside the UK, it is irrelevant how long it would take for an application for entry clearance to be granted. I have been unable to find this principle anywhere in Younas, which instead suggests that there must be an individualised and fact-specific analysis of the impact of requiring a person to leave the UK to apply for entry clearance, whether that impact engages article 8 and, if so, whether the interference is justified.
16. Ms Bustani relied on the preserved finding that the appellant’s partner would not relocate with him to Nigeria as evidence that there were insurmountable obstacles to the couple continuing their family life there. She accepted that to some extent, this was a choice that the partner would make, but she pointed out that the Rules did not define “insurmountable obstacles” only as ones that that were literally impossible to overcome. The Rules defined them as including “very significant difficulties which would […] entail very serious hardship for the applicant or their partner.” Taken together, the following factors met that test: the mother’s care needs, the partner’s need for ongoing medical care which she was currently receiving free of charge on the NHS, the partner’s anxiety and depression, and the preserved findings about the partner’s distress at being separated from her mother and about the economic difficulties the couple would face in Nigeria.
17. Turning to the alternative consideration of unjustifiably harsh consequences, Ms Bustani argued (undoubtedly correctly) that the length of time it would take the appellant to be granted entry clearance was a relevant factor, within the context of the facts of this case (namely, the appellant’s own health problems and her mother’s care needs). She also pointed out that the evidence suggested that the appellant would no longer meet the financial rules of Appendix FM; the latest evidence in the bundle, from April 2022, showed that the partner made £22,500 a year, and the financial threshold was now £29,000, such that an application for entry clearance might not be successful.
Discussion
18. It is now well-established that if an appellant met the requirements of the Rules under which they applied, in the absence of any countervailing factor, this resolves the appeal in their favour. See: TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 [34]; Begum (employment income; Rules/Article 8) [2021] UKUT 00115 (IAC).
19. As set out above, the only aspect of the Rules that the respondent found the appellant did not meet was the immigration status requirement. This was because he was in the UK in breach of immigration laws (which it is accepted that he is, because he has overstayed) and EX.1 was not met. EX.1 provides:
“EX.1. This paragraph applies if
[…]
“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen […] and there are insurmountable obstacles to family life with that partner continuing outside the UK.
“EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
20. The phrase “insurmountable obstacles” should be “understood in a practical and realistic sense”, but it is a “stringent test”. It requires more than a combination of strong ties to the host country – even if those include, as here, essential medical treatment - and a “degree of hardship” in the country of destination. Agyarko [43]
21. The first hardship the appellant points to is the difficulty for his partner in leaving her mother, given the mother’s care needs. I have reviewed the medical evidence in detail in order to understand how significant those needs are. The FTT was correct to say that she has memory problems consistent with Alzheimer’s, but that does not capture the extent of her condition. In March 2023, she received a clear diagnosis of Alzheimer’s, depression and anxiety. Among her symptoms was seeing family members, surrounded by light, sitting on her bed. These included her own grandmothers, such that this clearly describes repeated hallucinations. She is unable to leave the house alone, because she gets lost. She also uses a wheelchair outside the home. She “requires support for her activities of daily living”, which was being provided by her daughter. Her daughter accompanies her to all of her medical appointments, which is obviously necessary given the mother’s mental confusion and mobility issues.
22. The partner’s credibility was accepted below, and I therefore accept what she says in her statement, which is that her mother does not trust anyone else to care for her and has refused outside care. The partner’s brother lives with their mother, but he requires a degree of personal care from the partner as well, due to his own mental ill health and disabilities. He is therefore not able to care for their mother.
23. The mother explains in her own statement that she does not trust outside carers because she suffered very serious harm at the hands of medical professionals whom she had trusted: she lost her sight due to complications during cataract surgery. This is confirmed by a letter from the mother’s GP dated 13 January 2023, which reports that “the vision in her right eye is extremely limited following complications of cataract surgery”. Medical records show that she is now lacking a lens in that eye, and it is entirely plausible that she has become suspicious of medical professionals as a result. Consistent with her wariness about outside care, the medical records show that at the Alzheimer’s assessment, which she attended with her daughter, she needed “reassurance to engage”.
24. In terms of the availability of support outside the family, the detailed report diagnosing the partner with Alzheimer’s does not suggest this is realistic. On the contrary, it says that she had been referred to social services for a care assessment in June 2022 (nine months previously) and again in August, but there had been no response from social services.
25. Ms McKenzie’s suggestion that the mother accompany the couple to Nigeria is unrealistic. There is no indication that she would have any right to do so, and it is foreseeable that even if she could, such a significant upheaval would entail real hardship, given her physical frailty and mental confusion.
26. For this reason, relocating to Nigeria would mean leaving the appellant’s mother alone, dependent on outsiders for care, under circumstances where the evidence suggests both that care is difficult to obtain (if a preliminary assessment had not been carried out nine months after it had been requested) and that the mother is deeply suspicious of outside care, given her real and significant experience of adverse outcomes from medical treatment.
27. The FTT found that leaving her mother behind would cause the partner real distress. In fact, she would not leave her. That finding has not been challenged.
28. I explored with the representatives at the hearing whether a partner’s choice not to relocate could be considered an insurmountable obstacle; that clearly cannot be right, as it is a fundamental principle of the article 8 caselaw reflected in EX.1 and EX.2 that couples do not have a human right to choose their country of domicile. Ms Bustani submitted that it mattered what the reasons for the choice were. Here those reasons are compelling. They include the mother’s care needs, her reluctance to receive outside care and the apparent limits of outside care in any event, combined with the partner’s own mental ill health, which would impact the partner’s ability to cope with the significant distress that she would feel at leaving her mother behind in these circumstances. Ms McKenzie’s answer, which I have rejected as unrealistic, was that the couple should take the mother with them.
29. I find that under these specific circumstances, the impact on the partner of leaving her mother behind would rise to the level of very significant hardship.
30. The partner, moreover, suffers from a range of serious, chronic medical conditions. The updating medical records show that she has been attending a specialist eye clinic every one-two months, where both eyes are scanned and she receives an injection into her right eye. This is in order to prevent, so far as possible, a further deterioration in the serious eye conditions she has developed as a result of diabetes. I find that if the couple were to relocate to Nigeria, they would need to arrange regular, specialist eye care for the partner, and to do so relatively quickly, as the injections are carried out every few months. They would then need to be able to pay for that care for the foreseeable future, in order to prevent the partner from losing her sight (at least in the right eye). Ms McKenzie is right to point out that the couple have not provided any evidence that this care would not be available and accessible in Nigeria. However, taking into account the finding that the appellant’s business collapsed during the pandemic and he would have limited support from his family (his father is deceased and his brother is a drug user and is mentally unwell), I find that it is more likely than not that there would be some real difficulty in arranging this level of care, particularly bearing in mind that the treatment is regular and ongoing.
31. On their own, the difficulties in meeting the partner’s medical needs in Nigeria might not meet the test of “very serious hardship”, in the absence of evidence about the non-availability of care. However, they do add another degree of hardship beyond that which would already be caused by leaving the partner’s mother behind in the UK.
32. For these reasons, I find that EX.2 is met due to the likely cumulative effect of leaving the UK on the partner’s mental and physical health. I therefore find that the appellant met all of the requirements of the Rules in place at the date of his application. This resolves the appeal in his favour.

Notice of decision
The appeal is allowed under section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002.
Order under Rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008
As I have allowed the appeal, I have considered making an order for the respondent to pay the appellant’s appeal fee, as provided for by Rule 9(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I have decided not to make such an order because my decision rests in large part on evidence that post-dates the application.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 March 2025

ANNEX
(Error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004578
First-tier Tribunal No: HU/54319/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

Oluseye Olamide Akinrinmade
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sowerby, Instructed by Templeton Legal Services
For the Respondent: Mrs J. Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 6 December 2024

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Webb dismissing his appeal against the respondent’s refusal of his human rights claim.
Background
2. The appellant is a citizen of Nigeria. He entered the UK on a visit visa on 17 January 2020 and was subsequently granted “exceptional assurance” through 31 July 2020, due to the COVID-19 pandemic. On 31 January 2023, he applied for leave to remain as the unmarried partner of a British citizen.
3. The respondent refused that application on 15 March 2023. The respondent found that the appellant met the suitability, relationship, financial and English language requirements for a grant of leave to remain as a partner under Appendix FM. However, he did not meet the immigration status requirement, because he was in the UK without leave and EX.1 was not met.
4. The appellant appealed. His appeal came before the Judge on 6 September 2024. The appellant was unrepresented, and the respondent did not appear. The Judge took into account the guidelines set out in MNM (Surendran guidelines for Adjudicators) Kenya * [2000] UKIAT 00005, which govern the hearing of appeals in the respondent’s absence. He heard evidence from the appellant and his partner and reserved his decision. In a decision dated 12 September 2024, he dismissed the appeal.
The Judge’s decision
5. The Judge made a number of factual findings that are unchallenged. They include:
(i) The appellant and his partner were credible witnesses. Their evidence was “clear[,] detailed and consistent” and “supported by and consistent with the documents they had provided.” [20]
(ii) The partner’s mother was effectively blind, had mobility problems and had memory problems that were indicative of Alzheimer’s. She had previously refused outside care and was cared for by the partner [23]. The appellant also helped in her care [21]. The appellant’s partner would remain in the UK should the appellant be required to leave, because of her distress at having to leave her mother behind [24].
(iii) The partner had diabetes, asthma and PCOS and had “a number of appointments for surgery in the next few months to save her sight” [24]. As identified during the hearing before me, the GP records before the Judge recorded that the partner had been diagnosed with diabetic maculopathy and retinopathy in November 2022.
(iv) The appellant had lost his business in Nigeria due to the effects of the COVID-19 pandemic. His father had passed away, but his mother and brother lived in Nigeria. His brother had mental health issues and used illegal drugs [21].
(v) The appellant genuinely feared for his partner’s safety in Nigeria due to the “political situation” and Boko Haram, but those fears were not well-founded [22]. The partner, for her part, had visited Nigeria and believed that it was a “broken country where nothing works.” [24]
6. Applying the law to the facts, the Judge set out at [27] the factors he considered relevant to deciding whether there would be insurmountable obstacles to the couple continuing their family life together in Nigeria. They were:
(i) There would be “some difficulties in Nigeria, the appellant would require time to establish himself in light of the failure of his business” [27].
(ii) The appellant’s partner had visited Nigeria, and “although she said it was a country that did not work and the medical treatment was not the same as the UK, she did not say that these caused her any specific problems while visiting”.
(iii) The partner would have the support of her partner and his family in “navigating any culture shock”.
(iv) Being separated from her mother would cause the partner distress.
7. The Judge concluded at [28] that these factors did not rise to the level of insurmountable obstacles.
8. There were not very significant obstacles to the appellant’s reintegration into Nigeria, such that Para. 276ADE(1)(vi) was not met [28-31]. There is no challenge to this finding.
9. Having found that the Rules were not met, the Judge turned to the assessment of proportionality outside the Rules. He constructed a balance sheet, in the following terms:
(i) Weighing against the appellant was the public interest in effective immigration control [33];
(ii) The appellant spoke English and was financially independent, which were neutral factors [34];
(iii) Weighing in favour of the appellant were:
a. His five years’ of residence in the UK;
b. That his initial overstay had been due to the pandemic;
c. His family life with his partner;
d. “That if he leaves the UK to return to Nigeria, there will be a change to the relationship because his partner would remain in the UK to look after her mother.”;
e. His absence from the UK would “cause his partner distress and she would not have the advantage of his assistance with caring for her mother.” [35]
f. The appellant would face difficulties in reestablishing himself in Nigeria [36].
10. Finally, the Judge noted that the appellant intended to apply to return to the UK if he were removed, and “if he is successful the separation would be for a short period of time.” [37]
11. The Judge concluded that the balance tipped against the appellant [38] and the decision would not have unjustifiably harsh consequences [39].
The grounds of appeal
12. In a decision dated 4 October 2024, First-tier Tribunal Judge Mulready granted the appellant permission to appeal. She noted that the appellant was unrepresented and summarised the appellant’s challenge as, essentially, that the Judge had come to the wrong conclusion on the established facts. In granting permission, Judge Mulready noted in particular that the Judge had put weight on the fact that if the appellant left the UK and applied for entry clearance, the couple would be separated for only a “short period of time”, but that there was no evidence before the Judge justifying a finding that the separation would be short, no reasons given for the finding, no definition of what a “short” period of time would be and no consideration of the consequences for the partner and her mother during that “short period”. This last factor was “a material consideration”, “given one of them may have a serious progressive illness” and “an Article 8 analysis […] must take account of all three members of this family, Article 8 being engaged between them.”
13. The respondent filed a Rule 24 response. She argued that there appeared to be no challenge to the findings that family life could continue in Nigeria and that there were not very significant obstacles to the appellant’s reintegration there. The Judge had not made a finding on how long the couple would be separated if the appellant returned to Nigeria and applied for entry clearance, but only that their separation would be short in the event that an entry clearance application were successful. Judge Mulready was wrong to suggest that the impact of separation on the appellant’s mother should have been taken into account, as the Judge had not found that there was family life between the appellant and his partner’s mother.
14. Prior to the hearing before the Upper Tribunal, the appellant instructed legal representatives, and on 2 December 2024, Mr Sowerby filed a skeleton argument. At the hearing before me, he submitted that this skeleton was not introducing new grounds but merely focussing the appellant’s grounds and putting them in legal terms. Mrs Isherwood did not object to this characterisation or to the consideration of the reframed grounds. Mr Sowerby identified two distinct challenges:
(i) In deciding whether EX.1 was met, the Judge failed to have regard to two material accepted facts: the partner’s role in caring for her mother, and her own serious medical needs, for which she was entitled to receive free care on the NHS; and
(ii) In his Article 8 assessment, not only had the Judge made findings about the short duration of the couple’s separation that were not open to him for the reasons given by Judge Mulready, but he had also failed to consider that the application might not be successful and, given his finding that the partner would not leave the UK due to her caring responsibilities, that this would result in the couple being separated “for the foreseeable future”.
Discussion
15. I am grateful to both representatives for their cooperative and helpful discussion of the issues at the hearing before me.
16. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles set out in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 [26] and Volpi & Anor v Volpi [2022] EWCA Civ 464 [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
17. As summarised in Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 at [43], the words “insurmountable obstacles” must be “understood in a practical and realistic sense”. In deciding whether such obstacles exist, all relevant factors must be taken into account, including ties to the country in which a couple have built their family life together. In Agyarko, for example, in reasoning endorsed by the Supreme Court, the First-tier Tribunal considered both the partner’s employment in the UK and the couple’s wish to continue fertility treatment in the UK as relevant to the insurmountable obstacles question [32 and 73]. The respondent’s own guidance Family life (as a partner or parent) and exceptional circumstances recognises at pages [55-56] that both ties to dependent family members in the UK and the need for ongoing medical treatment may, under certain circumstances, support a finding of “insurmountable obstacles”.
18. Having carefully considered the Judge’s decision and with the benefit of thoughtful contributions by both representatives at the hearing before me, I find that the Judge made a fundamental error in his assessment of whether EX.1 was met in that he failed to treat the partner’s reasons for not leaving the UK as relevant. He proceeded as if the question were the purely hypothetical one of what conditions the couple would face in the event that they did relocate to Nigeria.
19. As a result, the Judge did not take all material factors into account in his EX.1 assessment. Specifically, he did not take into account the following factors related to the partner’s ties to the UK: the appellant’s mother’s care needs, the fact that the partner would not in fact leave the UK because of those care needs, and the partner’s own ongoing medical treatment in the UK. With regard to the last factor, the fact that the partner had not suffered from a lack of adequate health care while on a visit to Nigeria, mentioned at [27] is clearly of limited relevance to the question of the impact of relocation to Nigeria for someone suffering from several serious, chronic illnesses and who at the time of the hearing was awaiting surgery to prevent blindness.
20. I have taken into account that First-tier Tribunal Judges do not err by failing to mention all of the evidence before them. However, given the seriousness of these factors and their centrality to the appellant’s case, it was necessary for the Judge in this case either to give them some weight in the insurmountable obstacles assessment or explain why he did not.
21. I consider that the Judge also erred in taking into account that if the appellant applied for entry clearance to the UK and his application were successful, “the separation would be for a short period of time”. As noted by Judge Mulready, there was no evidence before the Judge as to the likely length of the separation. The only reference in the evidence to the length of separation was the statements by the couple (whose evidence the Judge stated that he accepted) that even a short separation would be extremely difficult for them, given the partner’s mother’s care needs. This was not an acceptance by the couple that the separation would necessarily be short.
22. The materiality of this error is not obvious. In spite of the public interest in the maintenance of immigration control being the only factor weighing against the appellant, this is a factor to which the Judge was right to give considerable weight. It was open to the Judge to find that it outweighed all the factors on the other side of the scale, even in the absence of a finding that the couple’s separation was likely to be short. Nonetheless, the very fact that the length of the couple’s separation is listed last, after the balance sheet has been drawn up, suggests that it may have been the factor that tipped the scales against the appellant. It therefore is not inevitable that the decision would have been the same in the absence of this error.
23. For these reasons, the decision of the First-tier Tribunal involved the making of material errors of law, requiring it to be set aside.
24. There has been no challenge to any of the Judge’s findings of fact, and the appeal was heard relatively recently, meaning that the need for updating evidence may be limited.
25. Because of the limited fact-finding that is likely to be required, I consider that this is a matter which could and should be retained within the Upper Tribunal to be remade. However, the appellant may wish to provide updating medical evidence or an updating witness statement to confirm whether or not there have been any significant changes in the family’s health or other circumstances since the appeal was heard.

Notice of Decision
26. The Judge’s decision involved the making of a material error of law and is set aside.
27. There has been no challenge to the Judge’s findings of fact, which are preserved.
Directions
1) The appeals are adjourned to be re-made in the Upper Tribunal at a face-to-face hearing, on a date to be fixed, with a time estimate of three hours.
2) If any party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
3) Any skeleton arguments must be served in electronic format on the other party and the Upper Tribunal at least 5 working days before the next hearing.
4) If the appellant or any other witness wishes to give oral evidence, they must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction [2] above, and must state if an interpreter is required, and if so in which language.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 December 2024