Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005362

First-tier Tribunal No: PA/019972/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 February 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

KN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M West, Counsel, instructed by Clifton Law, Solicitors (by CVP)
For the Respondent: Mr J McVeety, Senior Presenting Officer (by CVP)

Heard at Field House on 4 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of her family is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or any member of her family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with the permission of the First-tier Tribunal against a decision, dated 30 September 2024, of Judge of the First-tier Tribunal Aziz (“the judge”) dismissing the appeal brought by the appellant on the grounds that removing him to the United States would breach the United Kingdom’s obligations under the Human Rights Convention. The appellant abandoned his initial claim that removing him would breach the Refugee Convention.
2. The First-tier Tribunal made an anonymity order and I have continued the order to protect the appellant’s private life. The case concerns medical issues and bears on features of his upbringing and experiences as a child. The decision also impacts on children.
The factual background
3. The appellant pursued his appeal on the ground that his removal would breach his right to enjoy a family and private life, as protected by article 8 of the Human Rights Convention. It was conceded that he could not meet the requirements of the Immigration Rules. However, it was argued that his removal would have unjustifiably harsh consequences or the effect of the cumulative circumstances amounted to a disproportionate interference with the enjoyment of his rights, bearing in mind the impact of his removal on the best interests of the appellant’s partner’s children.
4. The appellant was represented by counsel at the hearing in the First-tier Tribunal. The appellant attended and gave evidence, as did his partner, P. He submitted a bundle containing witness statements and medical evidence.
The judge’s decision
5. The judge found the appellant was diagnosed with Asperger’s syndrome when was young and he suffered both physical and emotional abuse from his father from early in his childhood. He occasionally ran away from home and was found rough-sleeping. He was bullied at school because of his disability. A medico-legal report prepared in support of the appeal found that the appellant had developed complex PTSD. He fell into drug and alcohol abuse and was unable to hold down a job. He spent a year in a drug rehabilitation centre during his twenties. In 2007 he was sent to prison for a year for robbery. Then in 2012 he was sent to prison for a total period of seven years for sending a threatening letter to a bank. Following his release in 2018 he returned to live with his parents. In 2019 he was admitted to a psychiatric facility because he was feeling suicidal. The admitting physician diagnosed him with bipolar disorder. On his discharge, the appellant secured rented accommodation where he lived for one year before travelling to the United Kingdom as a visitor. The reason he came here was that he had met P online. He has lived with P since his arrival in December 2021. He is treated on the NHS for multiple physical, cognitive and mental health issues.
6. The judge found that P is a British citizen who has two children from a former relationship. They live with their father but P has contact with them as arranged by the Family Court. P also has physical health difficulties and receives assistance from the appellant with her personal care.
7. The judge found that the appellant and P are in a genuine and subsisting relationship. P provides the appellant with emotional support. The appellant has maintained contact with both his parents in the United States.
8. However, the judge dismissed the appeal because he was not satisfied there would be unjustifiably harsh consequences for the appellant, P or the children as a result of the decision. His reasons are set out at [45] to [50]. In brief, whilst the appellant’s father continued to pose a risk of harm to him, the appellant did not need to live with his parents and he could live independently as he had done during the year before he came to the United Kingdom. He could receive welfare and health care in the United States and P could continue to support him through modern means of communication. P could also receive help from the state with her care needs. The appellant could apply to return to the United Kingdom as a spouse or fiancé. There was no danger of the appellant’s removal impacting on P’s ability to remain here and to continue seeing her children. Their best interests were not impacted.
9. At [51] to [57] the judge gave reasons why he did not find that the decision was disproportionate when the provisions of section 117B of the Nationality, Immigration and Asylum Act 2002 were applied. The appellant had only been in the United Kingdom for three years and his family and private life had been created in circumstances in which his leave had been precarious. The maintenance of effective immigration control was in the public interest. The appellant speaks English but this was a neutral factor. He was not financially independent and therefore this public interest factor was engaged.
10. At [56] the judge stated: “The public interest requires that little weight should be attached to any family/private life established during the period where the appellant’s leave has been precarious. … The public interest factor is engaged.” He concluded the public interest outweighed the facts relied on by the appellant.
The issues on appeal to the Upper Tribunal
11. The grounds state:
(i) The judge failed to consider material matters, namely the emotional impact on P of being separated from the appellant, which had been highlighted in the medico-legal report on P;
(ii) The judge made a material misdirection and made an irrational finding by failing to take into account the impact on P and the adverse impact this would have on her contact with her children;
(iii) The judge failed to consider material matters, namely, the impact on the appellant’s mental health if he were separated from P;
(iv) The judge failed to consider material matters, namely, the impact on the appellant caused by returning to the United States due to his subjective fear of his family; and
(v) The judge made a material misdirection of law by failing to weigh all the relevant considerations in the appellant’s side of the balance so that his conclusion on proportionality was unsafe.
12. Permission to appeal was granted by the First-tier Tribunal on all grounds.
13. No Rule 24 response has been filed.
14. A set of six bundles has been uploaded and Mr West filed a skeleton argument for the error of law hearing.
The submissions
15. At the beginning of the hearing Mr McVeety confirmed that he had discussed the case with Mr West and he formally conceded that the decision of the judge contains an error of law such that it should be set aside. He said it was clear the judge had not grappled with the medical evidence of Dr Ahsan, a GP. She had provided medico-legal reports in respect of both the appellant and P and the judge’s assessment did not incorporate the evidence given in her reports.
16. In my view, the decision is detailed and for the most part well-reasoned. There is no requirement for a judge to address each and every piece of evidence. However, the reports by Dr Ahsan are not considered in detail and, in the circumstances that both parties are in agreement, I shall not go behind the concession.
17. In any event, although not raised as a ground of appeal, I noted that there was also a clear misdirection of law in paragraph [56] of the decision, set out above. It is precisely the error identified by the Court of Appeal in CL (India) v SSHD [2019] EWCA Civ 1925. At [50] the court said,
“First of all, the judge was wrong to say that section 117B(4) of the 2002 Act required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious. Section 117B(4) does not refer to “precarious” immigration status and only requires little weight to be given to a relationship formed with a qualifying partner that is established by a person at a time when the person “is in the UK unlawfully”. The sole reference in section 117(B) to “precarious” immigration status is in subsection (5). However, subsection (5) provides only that little weight should be given to a private life established at a time when a person’s immigration status is precarious. It does not state – and there is no provision of section 117(B) which states – that little weight should be given to a relationship formed with a qualifying partner established when a person’s immigration status is precarious.”
18. It is clear that the judge was concerned in that part of his decision with the application of section 117B and the public interest factors. In my judgement, this is a material error of law which would require the decision to be set aside.
Decision on error of law
19. The judge’s decision contains a material error of law and is set aside with no findings preserved.
20. Both parties agreed the appropriate outcome would be to remit the appeal to the First-tier Tribunal. I considered this, applying AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the respondent’s concession that the judge had erred in his assessment of the evidence. I consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal.
21. The appeal shall be heard again by another judge (not Judge Aziz). Mr West helpfully confirmed that the only issue for determination is whether the appellant’s removal would breach article 8 outside the rules. He accepted the requirements of Appendix FM, including paragraphs EX.1.(a) and (b), are not met.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by any judge except First-tier Tribunal Judge S Aziz.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated
4 February 2025