Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005672 & 005673

First-tier Tribunal No: HU/58906/2023 HU/58907/2023
LH/05534/2024
LH/05535/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

4th June 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

MH and NS
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wilford, Counsel instructed by Zahra & Co, Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 18 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants are granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellants, likely to lead members of the public to identify the Appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellants appeal from the decision of the First-tier Tribunal dated 20 September 2024 dismissing their appeal against the Respondent’s refusal dated 18 July 2023 of their application for leave to remain. Permission to appeal was granted by the Upper Tribunal on 13 January 2025.
2. The appeal came before the Upper Tribunal at an error of law hearing on 18 March 2025. At the hearing the panel heard submissions from the parties and reserved our decision. For the reasons set out below, we find that there was an error of law in the decision of the First-tier Tribunal (“FtT”) and set the decision aside and remit the case back the FtT to be heard anew before a different Judge.
3. The First-Tier Tribunal made an anonymity order in this appeal, and we have considered whether it is appropriate for that order to continue pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, we are satisfied that it is appropriate to make such an order because there is a young child involved.
Background and FtT Decision
4. The Appellants are spouses who are nationals of Bangladesh. The First Appellant is MH and the Second Appellant is NS. They arrived in the UK on 19 May 2022 and were admitted as visitors. The Appellants applied for indefinite leave to remain on 1 September 2022 on the basis of their dependency on their son in the UK. The Appellants son has been resident in the UK since 2006 and is a British national. He is married and has a son born in November 2022. The First Appellant suffers from Parkinsons. Both Appellants have resided with their son, daughter in law and grandson since arriving in the UK in May 2022. The Appellants son is their Sponsor in respect of their application for indefinite leave to remain.
5. The Appellants application for indefinite leave to remain was refused by the Respondent by letter of 18 July 2023 (“RFRL”).
6. The Respondent’s refusal was on the basis that the Appellants did not meet the requirements of Appendix Private Life of the Immigration Rules in that it was not accepted that there would be very significant obstacles to the Appellants reintegration in Bangladesh and further that removal would not be a breach of Article 8 ECHR.
7. The Appellants appealed that refusal and the case was heard before the FtT on 10 September 2024.
8. Before the FtT there were two issues to be determined:-
a. whether there would be very significant obstacles to the Appellants reintegration in Bangladesh on return such that the Appellants meet the requirements of Appendix Private Life of the Immigration Rules, with reference to PL5.1(b); or
b. whether the Appellants removal would otherwise breach Article 8 ECHR.
9. In its decision dated 20 September 2024 the FtT determined that in relation to the first issue that whilst there were obstacles to the Appellants reintegration into Bangladesh these were not very significant and accordingly the appeal was refused under that ground. In relation to the second issue the FtT determined that the Appellants Article 8 ECHR rights in relation to their family life with their son were engaged (although found on the facts that there was not family life with the grandson and daughter in law). However, in weighing the considerations in favour of the Appellants on the one hand and the considerations in favour of the Respondent on the other, the FtT determined that the Appellants removal would not amount to a disproportionate interference with their Article 8 ECHR rights in all the circumstances. The FtT accordingly dismissed the appeals pursuant to Article 8 ECHR.
10. In reaching its determination that the Appellants removal would not amount to a disproportionate interference with their Article 8 ECHR rights the FtT found that the Sponsor intended to make an application for further leave once the Appellants were in the UK rather than make an application under the Immigration Rules for adult dependent relatives from Bangladesh and that therefore the Appellants and the Sponsor had deliberately sought to undermine immigration control.
11. The Appellants sought permission to appeal. The grounds of appeal were that (i) the First-tier Tribunal erred by segmenting the family life between the Appellants and their family in the UK, contra to the principles identified in ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“First Ground of Appeal”); and (ii) the First-tier Tribunal violated the rule in Browne v Dunn (1893) 6 R 67 (HL), finding that the Appellants and their son had deliberately sought to undermine immigration control, specifically that they had intended to make an application for further leave once the Appellants were in the UK rather than make an application under the Immigration Rules as adult dependent relatives from Bangladesh (“Second Ground of Appeal”).
12. Although originally refused by the FtT permission to appeal on both grounds of appeal was granted by the Upper Tribunal on 13 January 2025.
The error of law hearing
13. At the error of law hearing Mr Wilford for the Appellants dealt first with the Second Ground of Appeal. He submitted that at §40 of the decision there was a clear finding that there had been a deliberate attempt by the Sponsor and the Appellants to undermine immigration control and that contrary to the rule in Browne-v- Dunn this had not been put to either the Sponsor or the Second Appellant in cross examination. In addition, this point had only been raised for the first time by the Respondent in closing submissions before the FtT. It did not form part of the reasons for refusal in the RFRL. Mr Wilford made reference to paragraphs 1.3 and 11.4 of the November 2024 Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal in support of his submission that the issue of a deliberate attempt to undermine immigration control should have been highlighted as an issue in advance. Mr Wilford submitted that this failure infected the whole balancing exercise carried out by the FtT with unfairness and that it was a material issue as the FtT had stated at §40 that “significant weight” had been given to it.
14. On the First Ground of Appeal Mr Wilford submitted that the FtT had erred in segmenting the family life in the way that it had at §29 in respect of a finding of family life being established with the Sponsor but finding no family life established with the grandson [§27 of the decision] and the daughter in law [§28 of the decision]. Mr Wilford submitted that this approach was an error of law following the decision in ZB (Pakistan). The correct approach was to consider family life as a whole.
15. For the Respondent Mr Tufan submitted that in respect of the Second Ground of Appeal the FtT had heard all the evidence and was entitled to take into consideration the point about undermining immigration control. It was a conclusion that the FtT came to having heard the evidence. It was open to it to come to that view. In any event Mr Tufan submitted that FtT decision on that point was not material to the outcome. He submitted that if you ignore §40 of the decision then the FtT would be entitled to come to the same conclusion with regard to the balancing exercise.
16. With regard to the First Ground of Appeal Mr Tufan submitted that there was no material error of law in the approach taken by the FtT to the issue of Family Life.
Discussion and decision
17. We shall deal with the Second Ground of Appeal first as both Mr Wilford and Mr Tufan addressed that point first in their submissions.
18. Our starting point is to consider the rule in Browne v Dunne that we have been referred to by Mr Wilford. It is trite that hearings before the FtT must be fair. The principle that allegations of dishonesty or untruthfulness must be put to a witness, and the witness be given an opportunity to answer the allegation, is long-established: cf Browne v Dunne at 70-71. The principle has been recently reaffirmed by the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 and by the Court of Appeal in Abdi and others v Entry Clearance Officer [2023] EWCA Civ 1455, at 33:-
“The recent decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion: see especially at [42]-[43], [55], and [70].”
19. In light of these authorities we consider that the allegation that the Sponsor and the Appellants had colluded to undermine immigration control was a material issue that should either have been put in cross examination to a witness or should have been highlighted in advance as a potential issue – such that the Appellants had knowledge of it and an opportunity to respond to it. In our view this is an important matter of procedural fairness.
20. The issue here turns on the reasons for making the application in September 2022.
21. In submissions, Mr Tufan for the Respondent accepted that the allegation of dishonesty had not been put to the Sponsor or the Second Appellant in cross-examination.
22. We accept Mr Wilford’s submission that there was no prior notice of the allegation of there being a deliberate attempt to circumvent immigration controls. It did not feature in the RFRL. It was not referenced in the Respondent’s review of 18 March 2024. It is clear that the point was not put to the witnesses in cross examination. We accept that it was only raised for the first time in the closing submissions before the FtT.
23. That the issue is a material one is clear from the decision of the FtT where it expressly attaches significant weight to this factor. We therefore find that the First-tier Tribunal’s decision involved a material error of law.
24. We consider that it is necessary to remit the case back to the FtT to hear the case anew as the critical issue here is the balancing exercise in relation to Article 8 ECHR.
25. Having decided to uphold the Second Ground of Appeal we do not consider it necessary to address the First Ground of Appeal.
Notice of Decision
The decision of the FtT involved the making of a material error on a point of law and that decision is hereby set aside. The appeal is remitted to the FtT to be reheard anew, by a different judge, with no findings preserved.

S Neilson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 May 2025