Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-005568
First-tier Tribunal No: LH/05236/2023
HU/54623/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th March 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

Ismalaj Nando
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Z Reza, counsel instructed by Mayfairs Law Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 3 March 2026

DECISION AND REASONS
Introduction
1. The appellant has been granted permission to appeal the decision of the First-tier Tribunal dismissing his appeal following a hearing which took place on 6 August 2024.
2. The appellant’s appeal against the First-tier Tribunal decision was previously considered by the Upper Tribunal and dismissed following an error of law hearing which took place on 12 February 2025.
3. The Court of Appeal allowed the appellant’s appeal against the Upper Tribunal decision and remitted the matter to be reheard by reference to the grant of permission dated 19 December 2024.
Anonymity
4. The First-tier Tribunal did not issue an anonymity order. Having taken into account the principle of open justice, I see no reason to make an order, so none is made.
Factual Background
5. The appellant is a national of Albania now aged 43. He states that he entered the United Kingdom illegally during 2018. He has made two unsuccessful applications under the EU Settlement Scheme (EUSS) in 2021 and 2022.
6. On 7 March 2023 he applied for permission to stay in the United Kingdom as the partner of Ioana Diana Costea, a Romanian national with settled status under the EUSS. That application was refused by way of a decision dated 28 March 2023. This is the decision under appeal.
7. The appellant’s application was refused because the Secretary of State did not accept that there was ‘any’ evidence of insurmountable obstacles to family life between him and his partner continuing outside of the United Kingdom. It was noted that no evidence had been provided to support the claim made in the application that Ms Costea ‘may suffer’ from mental health issues. In addition, the respondent did not accept that there were exceptional circumstances warranting a grant of permission to stay.
8. The appellant’s appeal was originally considered at a hearing before the First-tier Tribunal on 7 December 2023 and dismissed. That decision was set aside by the Upper Tribunal following an error of law hearing which took place on 2 April 2024. The appeal was remitted to the First-tier Tribunal for a fresh hearing, with no preserved findings.
The decision of the First-tier Tribunal promulgated on 6 September 2024
9. At the hearing on 6 August 2024 before the First-tier Tribunal, the judge treated Ms Costea as a vulnerable witness owing to evidence provided in a report dated 22 March 2024 from a psychotherapist, namely Mr Ryan Marcovich. There was no request by the appellant’s counsel for any specific adjustments to be made in relation to enabling Ms Costea to participate in the hearing or in relation to the manner in which she was to be questioned.
10. At [9] of the decision, the judge records that the parties agreed that the two issues to be determined were, firstly, whether there were insurmountable obstacles to family life continuing in Albania and thus whether the requirements of EX.1(b) were met and secondly, and alternatively, whether the removal of the appellant would result in unjustifiably harsh consequences for the appellant and/or his partner such that removal of the appellant would breach article 8 ECHR. Both issues were decided in favour of the respondent.
The appeal to the Upper Tribunal
11. The grounds of appeal can be summarised as follows:
i. The judge attached too little weight to the psychological report on the wife.
ii. There was a failure to consider relevant considerations under EX.1.
iii. A failure to apply the test in Lal [2019] EWCA Civ 1925.
iv. The judge erred in failing to take account of the wife’s rights under the Withdrawal Agreement and making a flawed proportionality assessment
12. Permission to appeal was granted on the basis sought, with the judge granting permission remarking that the first ground was arguable, the remaining grounds weaker and could be interpreted as disagreement. Nonetheless, permission was not restricted.
13. The respondent filed no Rule 24 response in these proceedings, albeit a response opposing the appeal was filed in the previous appeal to the Upper Tribunal which resulted in the appeal being remitted to the First-tier Tribunal (UI-2024-000565).
The error of law hearing
14. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
15. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary. It was a matter of concern, that the 1200-page composite bundle of evidence prepared on behalf of the appellant lacked the most important document for these proceedings, namely the report of Mr Marcovich on Ms Costea’s mental health. This document was provided by email during the hearing.
16. It suffices to say that the focus of Mr Reza’s submissions was on ground one. He accepted that grounds two and three which made the same point and would be taken together, were parasitic on the first ground. Mr Reza agreed that ground four (regarding the withdrawal agreement) would not be pursued as this argument was not made before the First-tier Tribunal.
17. At the end of the hearing, I reserved my decision which I provide below.
Discussion
18. I direct myself of the importance of judicial restraint, particularly keeping in mind what Lord Hamblen said in HA (Iraq) v SSHD [2022] UKSC 22, at [§72] that:
It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
Ground one
19. It was argued before the First-tier Tribunal that the mental health of Ms Costea may be adversely affected by moving to Albania to continue her family life with the appellant. There seems to have been no consideration of family life continuing in Romania. I note that the there is no challenge the judge’s comment at [36(iii)] that it was not argued that Ms Costea would be unable to access medical treatment in Albania.
20. At the time of the hearing, Ms Costea was working as a self-employed massage therapist/physiotherapist, cleaner and painter. In addition, she was studying for a degree in Business and Management, according to what she told Mr Marcovich. The latter spoke to Ms Costea over the telephone for about an hour in English. On page 3 of the report, Mr Marcovich made reference to a language barrier as English is not Ms Costea’s first language and he attributed any confusion during that assessment being due, not to her cognitive functioning, which he described as ‘intact,’ but owing to that language barrier as well as the ‘quality of the mobile phone call which meant that she was not fully able to maintain focus throughout.’
21. The grounds and Mr Reza’s submissions oversimplify matters in arguing that the judge attached (too) little weight to the report of Mr Marcovich. It is well established law that the weight to be given to any particular factor in an appeal is a matter for the judge and will rarely give rise to an error of law.
22. As is abundantly clear from the findings at [24-25], little weight was attached to the report, not in itself, but concerning its utility ‘as evidence’ that Ms Costea would be unable to relocate to Albania or remain in the United Kingdom without the appellant. It is clear from the judge’s extensive findings that all the concerns which Ms Costea reported to Mr Marcovich, including at [25] her ‘stress and anxiety’ she would experience if the appellant had to leave the United Kingdom, were taken into consideration in the decision under challenge.
23. I set out the judge’s findings on the report in full here.
The appellant says that his wife’s mental health may be affected. I have considered the report of Ryan Marcovich. Ryan Marcovich was presented with photographic identification documents but was not provided with any documents relevant to the appeal such as the application, refusal letter and statements. GP records were not provided to Mr Marcovich or to the Tribunal. Ms Costea said in evidence that she did not know that she had to provide GP records and she had not spoken to her GP about her mental health issues which I find surprising if she has been prescribed medication for panic attacks. There is no suggestion that the medication the appellant is said to be on, namely Concur (heart palpitations) and Borenar (management of her skin condition) is not available in Albania. Ms Costea said in evidence that she was on medication for depression but no evidence of this has been provided and Ms Costea was unable to remember the name of the medication. Mr Marcovich is clear in his report that he is not attempting to offer any formal diagnoses of any mental health conditions but has sought to clarify symptoms.
I give little weight to this report as evidence that the appellant’s wife would be unable to relocate to Albania with her husband or remain in the UK without him for a temporary period whilst she completes her studies (Ms Costea told Mr Marcovich that she is studying an FdA in Business and Management at the University of Sunderland in London) or the couple decide that the appellant should make an entry clearance application to join her in the UK. I accept that a telephone assessment does not undermine the report, but the assessment was undertaken over a short period of time of about an hour in the absence of any relevant documents or medical records and in the circumstances where the appellant’s wife has never even spoken to her GP about any mental health issues. I further find that Mr Markovich’s conclusion was carefully worded, putting it no higher than it is his understanding that the appellant plays a vital role in his wife’s psychological wellbeing and is crucial to her managing her day-to-day routine. Additionally that it was reported to him that if the appellant had to leave the UK to make a visa application from Albania the stress and anxiety from his absence would be so significant that Ms Costea’s vulnerable state of mind would be impacted and she believes that she would be torn in her decision whether to wait for him to return in order to continue to work and attend her studies or have to give everything up to be with her husband which would jeopardise her earnings and college.
24. Nothing in Mr Reza’s submissions undermined the judge’s findings on the report in question. The judge made no error in taking into account that the expert had not been provided with any evidence from Ms Costea’s GP. The judge was particularly generous in finding that the quality of Mr Marcovich’s assessment was not undermined by taking place over a relatively short mobile telephone call with poor reception and where there were limitations owing to a language barrier. It is worth mentioning that Mr Marcovich also refers to having had further contact by text, presumably with Ms Costea, the report does not say, to address queries not covered in the call. While the judge did not refer to this, there is no requirement for them to refer to every single aspect of what was a lengthy document.
25. At paragraph 3.1 of Mr Marcovich’s report, under the heading ‘Current and previous mental health support,’ he refers to Ms Costea having sought support from her ‘medical practitioner,’ having been prescribed medication for panic attacks and having not ‘yet’ accessed talking therapy. In light of this content, the judge made no error in taking account of the absence of supporting medical evidence such as from a GP.
26. While Mr Reza focused on the judge’s comments as to the absence of any supporting medical evidence, this was not the judge’s principal concern. The main issue which the judge identified in Mr Marcovich’s report was that there was no diagnosis of any mental health condition in it. Mr Marcovich was right not to provide such a diagnosis in view of the fact that he describes himself as a ‘qualified Rational-Emotive Cognitive Behavioural Therapist and final year trainee Counselling Psychologist.’
27. At paragraph 3.2 of the report under the heading Presenting Mental Health Issues, Mr Marcovich said the following:
Mrs. Costea reported experiencing symptoms of depression, anxiety and panic as a comorbid presentation of mental health difficulties. This report is in no way attempting to offer any formal diagnoses of any mental health conditions as detailed in the report, I have sought to clarify symptoms in order to illustrate the complex difficulties she has disclosed to me during the interview.
28. Given the limited nature of the report, the judge was entitled to take the absence of a diagnosis into account.
29. A further factor considered by the judge was the inconsistency between the evidence of Ms Costea and what was said in the report regarding whether or not she had consulted her GP regarding mental health issues. As the judge noted, at [24] Ms Costea’s oral evidence was that she had not done so. This is in contrast to the content of 3.1 of the report, referred to above, which made mention of consultation, medication and the prospect of talking therapy.
30. There is no criticism of Mr Marcovich by the judge and the suggestion at paragraph 6 of the grounds to the contrary is not made out.
31. The judge’s mention of the report being ‘carefully worded’ is not a criticism but an acknowledgement that Mr Marcovich was careful not to stray beyond his expertise. Indeed, throughout much of the report Mr Marcovich simply repeats what Ms Costea told him about her circumstances and symptoms. Ultimately, the therapist spoke to Ms Costea over the telephone and asked her about the effect of relocating with the appellant to Albania or remaining in the United Kingdom without him upon her mental health. Mr Marcovich was unable to make an assessment of any symptoms by observation, but solely by what Ms Costea told him. It is not therefore accepted that the judge failed to comply with the guidance in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 as contended in the grounds.
32. Mr Reza made a passing reference to HA (Sri Lanka) [2022] UKUT 00111 (IAC). While no concerns were raised by the judge regarding Mr Marcovich’s compliance with his obligations as an expert, this decision provides helpful guidance, at headnotes 4 and 5 of the importance of GP records in providing a ‘broader picture’ and being ‘directly relevant’ to the assessment of an individual’s mental health. In view of the varying evidence as to whether or not Ms Costea had raised mental health issues with her GP, the judge was not wrong to have concerns regarding its absence.
33. In the absence of a diagnosis, medical records and ongoing treatment, it was open to the judge to conclude that there was insufficient evidence to show that Ms Costea’s mental health would be adversely affected by accompanying the appellant to Albania or remaining in the United Kingdom without him.
34. I accept that the fact that Mr Marcovich was not provided with documents relating to the appellant’s case was not a particularly sound basis for finding the report to be unhelpful given that it is apparent from the report that the author was aware of the appellant’s ‘visa troubles,’ as he puts it. Nonetheless, this was only one of several reason provided by the judge and cannot, without more, amount to a material error.
35. For the foregoing reasons ground one identifies no error of law, let alone a material error.
Grounds two & three
36. Mr Reza recognised that the outcome of the appeal on the first ground would be dispositive of grounds two and three which he took together. Nonetheless, out of an abundance of caution, I will briefly address the issues raised in these grounds.
37. It is argued on the appellant’s behalf that the judge failed to treat Ms Costea’s mental health as a relevant consideration in his assessment of Ex.1. In view of my conclusion that the judge made no error in finding that Mr Marcovich’s report did not provide reliable evidence as to Ms Costea’s mental state, there was no need to factor this into that assessment of insurmountable obstacles.
38. Mr Reza also submitted that the judge had failed to take into consideration the country situation in Albania as set out in the CPIN, with reference to it being a patriarchal society among other matters. There is no basis for this argument, given the judge’s direct reference to this evidence at [22] of the decision. No explanation has been put forward as to in what way Albania being a patriarchal society affects the appellant or Ms Costea. Indeed, all the issues raised on the appellant’s behalf were taken into consideration between [17] and [29] of the decision, with the judge engaging with the evidence adduced and, indeed, accepting the couple’s evidence that it may be ‘difficult’ for them to live in Albania, [28].
39. There was no error in the judge taking account of Ms Costea’s previously shown ability to adapt to life in Italy, and indeed the United Kingdom, in finding that there were no insurmountable obstacles to family life taking place in Albania and, under the wider Article 8 assessment, as to the existence of exceptional circumstances resulting in unjustifiably harsh consequences. There is simply no basis for the argument that the judge applied too high a burden with reference to Lal. The judge’s reasoning on insurmountable obstacles was manifestly adequate in that the judge cumulatively considered all the relevant circumstances, attached appropriate weight to these factors and applied, in the article 8 assessment, the correct test of unjustifiably harsh consequences. The judge’s assessment was careful, proper and accompanied by detailed reasons.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal shall stand.

T Kamara
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email