Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005568
UI-2024-000565

On appeal from LH/05236/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL GLEESON
DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

ISMALAJ NANDO
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
respondent

Representation:
For the appellant: Mr Erum Waheed, instructed by Duncan Lewis Solicitors
For the respondent: Mr Nick Wain, a Senior Home Office Presenting Officer

Heard at Field House on 12 February 2025

DECISION AND REASONS

Introduction

1. The Appellant, appeals against the decision of the respondent on 28 March 2023, refusing his application for leave to remain as a Family Member (Partner) and/or on human rights grounds pursuant to paragraphs R-LTRP.1.1.(a), (b) and (d) and paragraphs EX.1 and EX.2 of Appendix FM of the Immigration Rules HC 395 (as amended) or outside the Rules pursuant to Article 8 ECHR.

2. The appellant is a citizen of Albania. His wife is a Romanian citizen who has settled status under the EU Settlement Scheme (EUSS), granted on 27 July 2020.

Background
3. The appellant arrived in the UK on 1 July 2018. He was 36 years old then. He has never had leave to enter or remain.

4. He has made two unsuccessful EUSS applications, the first on 25 February 2021, before the parties married, but after the specified date of 11 p.m. on 31 December 2020. The respondent refused that application on 10 June 2021.

5. The parties married on 5 August 2021. The appellant made a second EUSS application, which was refused on 26 January 2022.

6. The appellant then made an application for leave to remain on human rights grounds, based on his private and family life with his wife. That application was made on 7 March 2023, and refused on 28 March 2023. That refusal is the decision under challenge.

Refusal letter

7. The respondent accepted that the relationship between the parties was genuine and subsisting but had not seen any evidence of insurmountable obstacles preventing the couple continuing their relationship in Albania: see paragraphs EX.1 and EX.2. There were no children to take into account and the evidence of his wife’s mental health issues was no more than an assertion, unsupported by medical evidence.

8. The respondent also did not consider that there were any exceptional circumstances engaging paragraph GEN.3.2 or GEN.3.3. of Appendix FM. No insurmountable obstacles to continuing the relationship in Albania or Romania had been demonstrated.

9. The appellant could not bring himself within the eligibility provisions of Appendix FM (private life), as he had lived in the UK, unlawfully, for less than 20 years. He had not demonstrated very significant obstacles to reintegration.

10. When considering Article 8 ECHR outside the Rules, the respondent took account of the appellant’s illegal entry and residence. It was reasonable, and not disproportionate, to expect him to return to Albania and continue his private life there.

11. The First-tier Tribunal dismissed the appellant’s appeal. The First-tier Tribunal also refused permission to appeal to the Upper Tribunal. The appellant renewed his application for permission to the Upper Tribunal.

12. The application was rejected under the 10-year Partner and Private Life routes in Appendix FM, and also under Article 8 outwith the Rules.

13. The appellant appealed to the First-tier Tribunal.

First-tier Tribunal decision

14. At the beginning of the First-tier Tribunal hearing, the respondent conceded that the parties were in a genuine and subsisting relationship and that there were no suitability issues. The appellant by his Counsel stated that he was not arguing that he could meet the requirements of paragraph 276ADE(vi) of the Rules.

15. Two issues were agreed by the parties to be determinative of the appeal:

(1) Whether there were insurmountable obstacles to the parties’ family life continuing in Albania, and in that context, whether the requirements of paragraph EX.1(b) of Appendix FM were met; and if not

(2) Whether removal of the appellant would result in unjustifiably harsh [sic] consequences for the appellant and/or his wife such that removal would breach Article 8 ECHR outside the Rules.

16. The First-tier Judge found that insurmountable obstacles had not been shown. The appellant’s wife, who is Romanian, had lived in Italy and learned the language sufficiently for this to be the main language that she and the appellant used in communication with each other. She was 37 years old and also had experience of starting a new life and learning a new language in the UK, where she arrived in 2012.

17. At [24]-[25], the Judge dealt with a report by Mr Ryan Marcovich, who described himself as a RE-CBT psychotherapist/trainee counselling Psychologist dealing with the wife’s health problems, including her alleged mental health issues. The report was based on a telephone interview on 20 March 2024, lasting about an hour, and was prepared on 22 March 2024. Mr Marcovich had no access to the sponsor’s GP records. His conclusions are at [6] of the report:

“6 Assessment considerations:

It is in my opinion, following the assessment of her history, administration of appropriate questionnaires mentioned above, that Mrs. Costea has acquired or at the very least it has exacerbated both the adverse mental and physical conditions following the increased stress she has reported from the demand for her husband to apply for his visa in Albania. This stress was apparently made worse by the possibility that she might even be forced to go with him; that both scenarios apparently have elicited significant levels of fear for her if either case were to take place. She has explained that she does not cope well without the ongoing support her husband provides on a daily basis, should he be forced to get his visa in Albania this would likely be very traumatic for her to cope with.”

18. The Tribunal’s assessment of Mr Marcovich’s report is at [24]-[25]:
“24. 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 appeal such as the application, refusal letter and statements. GP records were provided to Mr Marcovich or to the Tribunal. Ms Costea said in evidence that she 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 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 report that he is not attempting to offer any formal diagnoses of any mental health conditions but has sought to clarify symptoms.
25. 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. ”

19. In considering Article 8 outside the Rules, the First-tier Tribunal applied section 117B(4)(a) and (b) and gave little weight to the relationship which the appellant had developed with his wife while in the UK unlawfully. Removal of the appellant would not be disproportionate.

20. The First-tier Judge dismissed the appeal. The appellant appealed to the Upper Tribunal.

Permission to appeal

21. On 17 February 2024, the First-tier Tribunal granted permission, and a file was opened under appeal number UI-2024-00565. Permission was limited as follows:

“3. … I am satisfied that it is arguable that the First-tier Tribunal Judge wrongly placed any or undue weight on the fact of the Appellant’s family life being developed whilst he was unlawfully in the UK, when assessing whether there were insurmountable obstacles in him and his spouse living in Albania. Given the First-tier Tribunal Judge’s view that this is the ‘crucial consideration’ it is arguable that this error (if it is found to be such) is material. …

5. In the circumstances I therefore give permission to appeal in relation to the matter have identified in paragraph 3 above only.”
22. The appellant’s application for permission to appeal, against the same First-tier Tribunal decision, was renewed to the Upper Tribunal and given file number UI-2024-005568. On 19 December 2024, the Upper Tribunal granted permission to appeal on all of the renewal grounds, as follows:
“… 3. In summary, the four renewed grounds aver that the Judge attached little weight on a psychological report, that EX.1 and EX.2 of the Immigration Rules was not considered properly where too high a burden was applied, and that there were several errors in relation to the Judge’s assessment of the free-standing Article 8 ECHR assessment.
4. The first ground in relation to the Judge’s assessment of the expert psychological report on the appellant’s wife is arguable in that the Judge appears not have engaged properly with the contents of the report before she decided at [25] to ‘give little weight to this report as evidence’ I therefore accept that ground 1 is made out as pleaded. The remaining 3 grounds are weak, and could be interpreted as disagreement with the Judge’s findings, however, permission is granted and is not restricted to any grounds.”
23. The grounds of appeal of which we are seised may be summarised thus:
(1) That the First-tier Judge erred in placing limited weight on private and family life with the appellant’s wife which was developed while he was in the UK unlawfully;
(2) That insufficient weight was given to the psychotherapy report of Mr Marcovich;
(3) That the First-tier Judge applied too hight a standard of proof when assessing the EX.1 and EX.2 tests; and
(4) That the sponsor’s free movement rights under the Withdrawal Agreement were not taken into account.

Rule 24 Reply
24. The respondent filed a Rule 24 Reply to the First-tier Tribunal grant of permission in UI-2024-000565. There is no Rule 24 Reply to the grant of permission by the Upper Tribunal in UI-2024-005568.
25. In relation to the grant of permission set out at [20] and [22(1)] above, the respondent argued that there was no challenge in the grounds of appeal to the identification of issues before the First-tier Tribunal. The appellant had conceded the main argument regarding the sponsor’s mental health and there was no challenge to the ‘precariousness’ argument and the First-tier Judge’s conclusions thereon.
26. We have been unable to find a concession on the appellant’s mental health as suggested in the Rule 24 Reply, which does not add significantly to the evidence or argument before the Tribunal at the error of law stage.
27. That was the basis on which this appeal came before the Upper Tribunal today.

Upper Tribunal hearing and submissions
28. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. We had access to all the documents before the First-tier Tribunal and the composite bundle filed by the appellant.
29. For the appellant, Mr Waheed reminded us that the respondent accepted that the relationship was genuine and subsisting. He expanded on his written grounds of appeal, in particular in relation to the weight to be given to Mr Marcovich’s expert report. The appellant’s solicitors had not included that report in the bundle, but we were provided with a copy during the hearing and were able to consider it. Mr Waheed asked us to allow the appeal.
30. For the respondent, Mr Wain pointed out that there was no formal diagnosis and the sponsor had not approached her GP, on her account. the weight to be given to expert evidence was a matter for the factfinding Tribunal, with which the Upper Tribunal could interfere only in very narrow circumstances. The First-tier Tribunal had been entitled to treat it with caution, given the limited time and information which Mr Marcovich had to make his assessment of the sponsor’s circumstances.
31. The First-tier Judge had considered all relevant factors, giving them proper weight. The respondent relied on the decision of the Court of Appeal in Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925, and Mr Wain submitted that at [17]-[26], the First-tier Judge had performed a proper Lal assessment. The sponsor’s EUSS settled status would not prevent her from accompanying the appellant to Albania, should she choose to do so. Appropriate weight had been given at [36]-[37].
32. For the appellant, Mr Waheed asserted that although the assessment telephone call had been short, just an hour, there had been texts exchanged afterwards to deal with points not covered. The sponsor had not spoken to her GP about her health. Documents relating to the appellant were not relevant to her.
33. The Tribunal should not rely on the decision in Lal. The sponsor’s vulnerability had not been properly taken into account: see Smith v Leech Brain & Co Ltd [1962] 2 QB 405, which established the ‘thin skull’ rule in negligence cases.
Discussion
34. We remind ourselves of the grounds of appeal on which permission was granted:
(1) That the First-tier Judge erred in placing limited weight on private and family life with the appellant’s wife which was developed while he was in the UK unlawfully;
(2) That insufficient weight was given to the psychotherapy report of Mr Marcovich;
(3) That the First-tier Judge applied too hight a standard of proof when assessing the EX.1 and EX.2 tests; and
(4) That the sponsor’s free movement rights under the Withdrawal Agreement were not taken into account.
35. Ground (1) is unarguable. Section 117B(4) directs the Tribunal that:
“117B …(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.”
36. The appellant was in the UK unlawfully throughout. Absent the special protection of the EUSS, which does not avail him, the First-tier Judge would have erred in law if he had given significant weight to his relationship with the sponsor, or the appellant’s private life in the UK.
37. Ground (2) relates to the weight given to the evidence of Mr Markovich. We remind ourselves that the report was not included in the hearing bundle by Mr Waheed’s instructing solicitors, which suggests that they did not consider likely to be determinative in this appeal. We have not seen the texts which were exchanged in the two days between the telephone assessment and the report being finalised. The weight to be given to an expert report is always a question of fact for the fact-finding Tribunal.
38. We are assisted in assessing the First-tier Tribunal’s approach to the medical evidence by the judicial headnote and underlying guidance in HA (expert evidence, mental health) Sri Lanka [2022] UKUT 111 (IAC) (25 March 2022). In this appeal, the alleged expert is not a fully trained psychiatrist and his report was not supported by GP records. The appellant’s own case is that there are no relevant records which could have been adduced.
39. However, it is plain from the other medications which the sponsor receives (some of which she could not name at the hearing) that there are GP records which could and should have been disclosed to Mr Marcovich. There may be no reference to the sponsor’s mental health in those records, but that does not excuse their not having been disclosed, nor does it improve the appellant’s case.
40. The First-tier Tribunal is recognised as a specialist fact-finding Tribunal and the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Judge’s reasoning: see Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26] in the judgment of Lord Justice Green, with whom Lord Justices Lewison and Andrews agreed.
41. The First-tier Judge’s decision considers the evidence of Mr Marcovich properly, intelligibly and adequately. Having reviewed the opinion of Mr Marcovich, and bearing in mind the limited information which he had before him, we are satisfied that it was open to the First-tier Judge to place little weight on that report.
42. Ground (3) does not avail the appellant. Paragraph EX.1(a) avails an appellant only where there is a genuine and subsisting parental relationship between an appellant and a settled child, which is not the case here.
43. Paragraph EX.1(b) and EX.2 deals with a partnership situation:
“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, settled in the UK, or in the UK with protection status, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), or in the UK with permission as a Stateless person, 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.” [Emphasis added]
44. On the evidence before the First-tier Judge, he did not err in concluding that the evidence did not establish that there were ‘insurmountable obstacles’ to family life continuing outside the UK. That is a finding of fact, on the evidence before the Tribunal, which was open to him and his conclusions were neither ‘plainly wrong’ nor ‘rationally insupportable’: see Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) at [2]-[5] in the judgment of Lord Justice Lewison, with whom Lord Justices Males and Snowden agreed.
45. Ground (4) is unarguable. The First-tier Judge did not err in finding that the sponsor’s free movement rights under the Withdrawal Agreement are not relevant outside the EUSS. This was not an EUSS application, but an application under Article 8 ECHR, within and outwith the Rules.

Notice of Decision

46. For the foregoing reasons, our decision is as follows:

The making of the previous decision involved the making of no error on a point of law
We do not set aside the decision but order that it shall stand.

Linda Kirk

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 7 March 2025