Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-005543
First-tier Tribunal No: HU/01903/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of June 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

JAMES WILLIAM PARMAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Reiss, Asylum Justice
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 15 June 2026

DECISION AND REASONS

1. The appellant is a citizen of USA born on 23 October 1997. He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision to refuse his application for leave to remain in the UK.

2. The appellant arrived in the UK on 12 October 2022 as a visitor, with leave to enter valid until 12 April 2023. On 10 April 2023 he submitted a fee waiver application and, once accepted, he made a human rights claim on 7 June 2023 in an application for leave to remain under Appendix FM of the immigration rules on the basis of his family life with his British partner, Michael Stuart Shaw. The appellant and sponsor were married on 19 July 2023.

3. The appellant’s application was refused on 1 September 2023 on the grounds that he did not meet the eligibility immigration status requirements of the rules as he was currently in the UK with leave as a visitor. He was otherwise considered to meet the eligibility requirements of the rules. The respondent did not accept that paragraph EX.1 of Appendix FM applied since, whilst it was accepted that the appellant had a genuine and subsisting relationship with his partner, it was not accepted that there were insurmountable obstacles to family life continuing outside the UK, in the USA. The respondent noted that the appellant’s partner had four children, aged between 7 and 15 years, but did not accept that the appellant had a genuine and subsisting relationship with the youngest two and considered it reasonable for the eldest two to remain in the UK with their biological mother and father. The respondent considered that there were no very significant obstacles to the appellant’s integration in the USA and that there were no exceptional circumstances for the purposes of GEN.3.2 of Appendix FM which would render the refusal of leave a breach of Article 8 of the ECHR. The respondent noted that the appellant claimed to have a disability and to be reliant upon his partner for support with his daily living needs but considered that he would have adequate support from his family in the USA given that he had been suffering from the conditions since 2016. The respondent noted further that the appellant claimed to be housebound and to only be able to leave the house with his partner, but considered that as he had flown from the USA without his partner only recently he would be able to return to the USA and obtain the necessary entry clearance to join his partner. Alternatively his partner could relocate with him.

4. The appellant appealed against that decision. His appeal was heard in the First-tier Tribunal on 13 September 2024. The judge confirmed that the appellant was being treated as a vulnerable witness in light of a psychiatric report from Dr Galappathie, which he had submitted as part of his documentary evidence. The appellant and his partner both gave oral evidence before the Tribunal. It was submitted on behalf of the appellant that he suffered from agoraphobia and that it had been a distressing ordeal for him to travel the UK; that he did not have an insurance policy in the USA and that there was no national health service like the UK; and that he would not be able to access the necessary health care in the USA due to lack of funds. It was submitted that his mental health would deteriorate on return to the USA and that his partner also suffered from mental health issues.

5. The judge did not accept that the appellant had a genuine and subsisting parental relationship with any of the sponsor’s four children. He noted that the youngest two children did not live with the sponsor and he did not see them or have any communication with them. The judge accepted that the appellant had been involved in the lives of the elder two children since October 2022 but was not satisfied that he held a parental relationship with any of the children. The judge accepted that the appellant had a genuine and subsisting relationship with the sponsor and that they were married and living together. However he was not satisfied that there would be very significant difficulties faced by the appellant and the sponsor in continuing their family life together outside the United Kingdom. He was not satisfied that the sponsor was unable to accompany the appellant to the USA whether for the short term whilst a proper application was made for entry clearance as a partner or on a more permanent basis if they decided to remain there. Alternatively, he was not satisfied that the appellant and sponsor had demonstrated that they would be unable to continue their relationship by modern means of communication. He did not accept that the appellant had demonstrated that he had been deemed medically unfit to fly and was not satisfied that the appellant had demonstrated that he would not be able to obtain support both in terms of financial support and accommodation by his family and the sponsor, since they had been supporting him financially previously. The judge was therefore not satisfied that the appellant met the requirements for leave to remain under Appendix FM. The judge found, further, that there were no very significant obstacles to the appellant’s integration in the USA, and that the requirements of Appendix Private Life were not met. As for Article 8 outside the rules, the judge was not satisfied that the choices available to the appellant would result in unjustifiably harsh consequences for himself or the sponsor. He concluded that the refusal of the appellant’s application was not in breach of Article 8 and he dismissed the appeal, in a decision promulgated on 4 October 2024.

6. The appellant appealed against the judge’s decision on two grounds. Firstly, that the judge had materially erred in law in his assessment of the medico-legal report from Dr Galappathie, and that there was an over emphasis on typographical inaccuracies rather than the actual substance of the report and the findings within and a failure to have regard to Dr Galappathie’s opinion that he was unfit to fly. Secondly, that there was unfairness resulting from a mistake as to fact concerning the sponsor’s evidence, as the judge had wrongly said that no medical evidence was provided for the sponsor when there was such evidence which was material to the question of the sponsor’s ability to travel to the USA.

7. Permission was refused in the First-tier Tribunal, but was granted upon a renewal to the Upper Tribunal on the following basis:.

“2. It is arguable that the judge erred in stating at [114] that there was no medical evidence relating to the sponsor’s mental health conditions. In addition, the evidence referred to in the grounds went to the ability of the sponsor to travel and to the issue of insurmountable obstacles to family life being enjoyed elsewhere.

3. Permission is not refused on any ground. “

8. The matter came before me for a hearing. Both parties made submissions.

9. Mr Reiss submitted, with regard to ground two, that the judge’s comment, that there was no medical evidence for the sponsor, was a material error, as there were pages of medical evidence and in particular a document from the DWP about his entitlement to Personal Independence Payment (PIP) where he scored 10 points for ‘planning and following a journey’ stating that he could not undertake any journey because it would cause him overwhelming psychological distress. Mr Reiss submitted that that showed that there were insurmountable obstacles to the relationship continuing abroad. As for ground one, Mr Reiss submitted that the factual inaccuracies in Dr Galappathie’s report were just typos and were not relevant to the conclusions he reached. The judge did not have any evidence before him of the status of the investigation by the GMC. The judge gave reduced weight to the report from Dr Gallapathie but had no reason to do so as his expertise as an expert had not been challenged by the respondent. Mr Reiss relied upon the case of TUI UK Ltd v Griffiths [2023] UKSC 48 in submitting that the judge had materially erred in that respect.

10. Mr Tan submitted, with regard to ground two, that the challenge had to be considered in the relevant context, in that the appellant’s skeleton argument had conceded that he could not meet the requirements of the immigration rules and that the arguments were limited to Article 8 outside the immigration rules, so that the appellant could not succeed on the ‘insurmountable obstacles’ test within the rules. There was no challenge to the alternative finding made by the judge at [80] and [109], that the relationship could continue by modern means of communication, and at [108] that the appellant could return to the USA to make an entry clearance application. Therefore, whilst it was incorrect that there was no medical evidence relating to the sponsor, that was not material to the outcome of the appeal. With regard to ground one, Mr Tan submitted that the appellant’s submissions referring to TUI UK Ltd v Griffiths were broadening the challenge. The respondent’s review was clearly a challenge to Dr Gallapathie’s report. The appellant could have gone back to Dr Galappathie to put the respondent’s concerns to him but did not do so. The judge was therefore entitled to take these points into account in assessing the weight to be given to the report. The errors in the report were not just typos but were clear fundamental errors that went to the degree of care and scrutiny in the report, and the reference to detention in particular was relevant to the issue of medical treatment. The judge was entitled to conclude that there was no evidence to show that the appellant was unfit to fly and was entitled to give the weight that he did to the report of Dr Gallapthie.

11. In response, Mr Reiss submitted with regard to ground one that the judge clearly did assess the appellant’s claim against the requirements of the immigration rules. Even if it was an error to have done so, there was a definitive assessment of insurmountable obstacles which would be positively conclusive of the Article 8 claim. The judge, at [8], was only considering a short term separation in order for the appellant to make an entry clearance application and was not suggesting permanent separation. The relevant test was ‘insurmountable obstacles’, not whether the appellant and sponsor could continue their relationship through telephone calls As for ground two, the respondent’s review was not an answer to the requirements set out in TUI UK Ltd v Griffiths. The judge failed to consider Dr Galappathie’s opinion that the appellant was not fit to fly.

Analysis

12. It is indeed the case that the judge erred, when making an observation at [114] that no medical evidence had been provided to corroborate the sponsor’s health position, by failing to have regard to the medical evidence in the appeal bundle for the sponsor including in particular the PIP award which specifically referred to his inability to undertake journeys. However I agree with Mr Tan that that error in not material given the judge’s finding, as an alternative to the appellant and sponsor travelling to or relocating to USA together, that the appellant could return to the USA alone to make the proper entry clearance application to join the sponsor in the UK.

13. As Mr Tan properly pointed out, the appellant could not have succeeded under the immigration rules on the basis of there being insurmountable obstacles to family life continuing in the USA, since the appellant’s visitor visa precluded him from relying on paragraph EX.1 of Appendix FM, as accepted in the skeleton argument before the First-tier Tribunal. Accordingly if it was the case that there were insurmountable obstacles to family life continuing in the USA by the appellant and sponsor relocating there, that was not in itself determinative of the Article 8 claim. As accepted in the appellant’s skeleton argument before the First-tier Tribunal, the appellant could not qualify under the 5-year or 10-year routes under the immigration rules in Appendix FM and his Article 8 claim had, therefore, to be considered outside those rules. The judge’s finding, that the appellant could return to USA alone and apply for entry clearance, was accordingly a basis upon which he was entitled to conclude that the respondent’s decision did not give rise to unduly harsh consequences and was not disproportionate. In the circumstances I do not find the second ground to be made out.

14. As for the first ground, Mr Tan rightly pointed out that the reliance upon TUI UK Ltd v Griffiths added an additional dimension to the grounds which had not been pleaded previously. There had been no application to amend or supplement the grounds. In any event I find no merit in the ground in that respect. I do not agree with Mr Reiss that the principles in TUI UK Ltd v Griffiths applied so that the judge was precluded from applying the limited weight that he did to Dr Galappathie’s report. It was, as Mr Tan submitted, abundantly clear from the respondent’s review that the respondent was challenging the report. The respondent’s review in fact consists of a lengthy list of reasons why the report of Dr Galappathie was found to be lacking, identifying matters which the report had failed to consider or address. That list specifically includes the question of the appellant being able to travel to the USA, where the respondent raised the issue of a lack of supporting evidence as to the appellant’s ability to travel together with his mother, father or other close relatives, as opposed to travelling on his own. It was open to the appellant to put those concerns to Dr Galappathie and to provide a response for the hearing but there was no further evidence. In the circumstances it was entirely open to the judge to assess for himself the weight to be given to the report.

15. As for the matters that were actually pleaded in the grounds, the first is the assertion that the judge erred in his reliance upon the ongoing GMC investigation into Dr Galappathi. However, as Mr Tan submitted, nothing really hung on that, given the other concerns raised about Dr Galappathie’s report. Nevertheless, and in any event, it seems to me that that was a proper reason for the judge to have some concerns about the weight he could attribute to the report. Mr Reiss, in his submissions, raised the fact that there was no evidence of the status of the GMC investigation before the judge, but it seems to me that that would have been a matter for the appellant to address. Certainly, Dr Galappathie referred, at [15] of his report, to the investigation being ongoing at that time. As for the second point, namely the length and mode of the interview, as referred to by the judge at [65] pf his decision, that was again a matter which the judge was, in my view, entitled to take into account when considering the weight to be given to Dr Galappathie’s assessment. With regard to the third point raised in the grounds, Mr Reiss submitted that the factual inaccuracies in Dr Galappathie’s report referred to by the judge at [66] were simply typographical mistakes which had no bearing on the substance of the report. However I agree with Mr Tan that the errors made by Dr Galappathie were not minor mistakes which could simply be dismissed as typographical errors. The fact that Dr Galappathie referred to an interpreter being present during the interview raised questions as to his recollection of the assessment. Likewise the reference at [91] to the appellant being in detention was of concern in relation to Dr Galappathie’s recollection of the assessment, but was also of concern, as Mr Tan submitted, because it was directly relevant to his consideration of the medical treatment the appellant required.

16. In the circumstances the judge was entitled, in my view, to treat Dr Galappathie’s report with circumspection and to accord it the weight that he did. That in turn is clearly relevant to the fourth point raised in the grounds, namely the assertion that the judge erred by failing to take into consideration Dr Galappathie’s opinion that the appellant was unfit to fly. It is asserted at [16] of the grounds that the judge did not refer to [100] of Dr Galappathie’s report where he stated that opinion. However, whilst the judge did not actually cite that paragraph, it is clear from his observations at [63] of his decision that he gave full consideration to Dr Galappathie’s opinion in that regard, specifically referring to the section of the report which addressed the question of the appellant’s ability to return to the USA. The judge went on, at [67], to consider the other medical evidence he had before him, noting that there was nothing from the appellant’s GP confirming that he was unfit to fly. It is clear that the judge, in those paragraphs, undertook an assessment of the evidence as a whole in reaching his conclusion, being unable to give weight to the opinion of Dr Galappathie in the absence of supporting evidence from a GP, and concluding at [77] that the evidence did not satisfy him that the appellant was unfit to fly.

17. Having reached such a conclusion, as he was entitled to do, the judge then went on to give full and proper reasons for concluding that the appellant had failed to show that he was unable to return to the USA to make an appropriate application for entry clearance to join the sponsor in the UK. At [80] the judge considered that the appellant and sponsor could continue their relationship in the meantime by modern means of communication. It is clear from his findings in the alternative at [91] that he was not envisaging a permanent separation but rather only a temporary separation. He considered the appellant’s ability to access medical treatment whilst in the USA, he considered the appellant’s family and other ties to the USA and the level of support he would have there, and he gave full reasons for concluding that the respondent’s decision was not unduly harsh or disproportionate in the circumstances. It may be that if the appellant obtained satisfactory medical evidence certifying his inability to fly it would be open to him to put that to the respondent. However, on the evidence available to him, the judge was entitled to reach the conclusion that he did.

18. For all these reasons I do not accept that the judge made a material error of law in his decision requiring it to be set aside. The decision is accordingly upheld.

Notice of Decision

19. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 23 June 2026