Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005966

First-tier Tribunal No: HU/50004/2024
LH/05905/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 April 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

FAISAL SHAHZAD
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Broachwalla instructed by MCR Solicitors.
For the Respondent: Dr Ibisi, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 11 April 2025

DECISION AND REASONS

1. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Manchester Piccadilly on 15 October 2024, in which the Judge dismissed his appeal against the refusal of his application for leave to remain in the United Kingdom on the basis of his family and private life. The date of the application was 5 May 2022, which was refused on 20 December 2023.
2. The Appellant is a citizen of Pakistan born on 6 December 1987 who entered the UK lawfully as a student on 31 March 2011.
3. His immigration history shows that in May 2019 he applied for an EEA residence card which was refused after which he made a number of other EEA residence card applications, all of which were also refused. The Appellant appealed the refusal dated February 2021 which was dismissed on 14 February 2022 following which he made his application on human rights grounds, leading to the refusal being considered by the Judge. The Appellant asserted that the facts of his case, taken cumulatively, meant his removal from the UK would be disproportionate.
4. The Judge’s findings are set out from [10] of the decision under challenge. Within that section the Judge finds, inter alia, (i) the Appellant has a support network available to him in Pakistan [13 – 15], (ii) Mr Imran who has provided financial support to the Appellant in the UK is in a position to send money to him should he need it in Pakistan [17 - 18], (iii) the medical evidence in relation to the Appellant’s conditions was not detailed, (iv) it was not made out that the Appellants conditions, such as they are, could not be managed appropriately in Pakistan [19], and, (v) the Appellant enjoys a support network of family in Pakistan who will be able to assist him to access treatment should he need the same, with no evidence he would not be able to do so [20].
5. The Judge finds the Immigration Rules are not met for the reasons given in the Refusal Letter before going on to consider the five-stage test set out in Razgar [2004] UKHL 27. The Judge’s assessment of the proportionality of any interference with a protected right is to be found at [24 – 26] in the following terms:
24. I find on balance that these matters weigh in favour of the decision being a proportionate one. I have had regard to the case of R (Agyarko) v SSHD [2017] UKSC 11. I do not find that the Appellant would face very significant difficulties in Pakistan which could not be overcome or would entail very serious hardship for the Appellant.
25. I find on the balance of probabilities that the Appellant has established there is family life with his cousin and that he is financially dependent upon him. Both the Appellant and the Sponsor explained that they were emotionally dependent upon each other. The Appellant explained that his cousin could not read or write in English, and he assisted him with matters such as reading letters and attending doctors’ appointments. The Sponsor stated he relied on the Appellant emotionally. However, I note that Mr Imran is married and resides with his wife, and I find that the ties he has with the Appellant do not go beyond normal emotional ties. It is not the case that the Sponsor resides in the UK alone.
26. The Appellant has always resided in the UK with precarious leave or no leave at all. The weight therefore I attach to his developed family and private life in the UK is therefore lessened. In the Appellant’s circumstances I do not find that the public interest in the immigration control is outweighed. In these circumstances I find I must dismiss the appeal.
6. The Appellant sought permission to appeal on six grounds being (i) failure to adequately assess emotional dependency beyond normal ties, (ii) failure to consider the cumulative impact on private and family life, (iii) mischaracterisation of financial and support networks, (iv) giving insufficient weight to Appellant’s medical conditions, (v) giving inadequate consideration to the section 117B factors, and,(vi) misapplication of Article 8 and the proportionality test. For the reasons more fully set out in the Grounds of Appeal.
7. Permission to appeal was granted by another judge of the First-tier Tribunal on 30 December 2024, the operative part of the grant being in the following terms:
2. Permission is granted on ground 1. It is arguable that there is inadequate reasoning in the judge’s consideration of whether or not there were normal emotional ties between the Appellant and his cousin when the judge had made the arguably incompatible finding that there was family life between the Appellant and his cousin.
3. I grant permission on all grounds, because the arguable material error identified in ground 1 is arguably material to the entire proportionality assessment.
Discussion and analysis
8. A person challenging a decision of a judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31], which I take into account.
9. It is settled law that the weight to be given to the evidence is a matter for the Judge.
10. There is no merit in the assertion the Judge failed to take into account the length of the Appellant’s residence in United Kingdom, of which the Judge was clearly aware. Claiming the Judge should have given greater weight to that than he did is mere disagreement with the weight the judge felt it was appropriate to give.
11. In relation to Article 8, the Appellant’s representative’s skeleton argument before the Judge stated there was one key issue which was whether the Appellant’s removal would breach his and his cousin’s right to private and family life under Article 8 ECHR and whether the relationship between the two adults engaged the protection of Article 8 ECHR where further elements of dependency involve more than normal emotional ties.
12. The submissions made in relation to this issue were that the Appellant’s relationship with his cousin, Mr Imran, had been formed as a result of their living together for a number of years and involves elements of dependency involving more than a normal emotional ties. It was said the relationship involves mutual support, cohabitation, friendship and interdependency since 2011 when the Appellant entered the United Kingdom.
13. It is settled law that to establish family life it is necessary to show real, committed or effective support or a relationship between adult family members in which the normal emotional ties would not, without more, be enough – see Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31.
14. Whether family life exists is a question of fact as found in Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 and generally involves cohabiting dependents, such as parents and their dependent, minor children. Relationships between adults will not necessarily acquire the protection of Article 8 without evidence of further elements of dependency, involving more than the normal emotional ties.
15. The Upper Tribunal reviewed the authorities in the case of Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338 in which it found:

‘Accordingly, the following principles can be described from the authorities:

i. The test for the establishment of Article 8 family life in the Kugathas sense is one of effective, real or committed support. There is no requirement to prove exceptional dependency.
ii. The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
iii. The continued existence of family life after the attainment of majority is also a relevant question of fact. No negative inference should be drawn from the mere fact of the attainment of majority, while continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life’

16. A review of the evidence before the Judge shows that that the additional element required was not made out on the facts. The Judge accepts that the Appellant receives assistance from his cousin and therefore must have accepted that private life exists, as without Article 8 being engaged there would have been no need for the Judge to consider the proportionality of any interference.
17. The Appellant fails to establish there was sufficient material before the Judge to warrant a finding that family life exists recognised by Article 8 ECHR, rather than de facto family life, on any basis. I find no material legal error made out in relation to Ground 1.
18. In relation to Ground 2, the Judge clearly factored into the assessment of the proportionality of the interference with the Appellant’s private life the cumulative impact of any interference with the protected right. The Judge was not required to set out each and every aspect of the evidence and the claim. It is not made out the Judge adopted an overly narrow focus isolating aspects of the evidence. Any claim to that effect is without merit. No material legal error is made out in relation to Ground 2.
19. In relation to Ground 3, the finding that the Appellant could rely on a support network in Pakistan and, or remittances from the UK, is not speculative but based upon an assessment of the available evidence. Even if the Sponsor is likely to encounter difficulties in dealing with his own emotional and physical reliance on the Appellant, that does not make the decision under challenge infected by material legal error as the sponsor will remain in the UK where he could obtain assistance from the NHS or other services, if required. The claim of mischaracterisation is, in effect, disagreement with the findings made by the Judge on the availability of familial and financial support available to the Appellant, which is clearly a finding within the range of those available to the Judge on the evidence. No material legal error is made out in relation to Ground 3.
20. Ground 4 is a weight challenge when the weight to be given to the evidence was a matter for the Judge. Rather than not engaging with the evidence, as alleged in the Ground, the Judge clearly did and noted concerns about the limited evidence that was provided in relation to some issues. The assertion the Judge should have applied AM (Zimbabwe) is without merit when the evidence did not even establish that the Appellant could come remotely near the Article 3 threshold identified in that case. The Judge considered the evidence available in relation to the Appellant’s anxiety disorder and migraines and it is not a finding outside the range of those available to the Judge to find that treatment is both available and accessible in Pakistan. No material legal error is made out in relation to Ground 4.
21. Ground 5 asserts the Judge did not balance the public interest in immigration control against the Appellants long residence, contributions, destruction on removal of his life and relationships in the UK, and the fact he had not relied on the public purse and had not been a burden on the state.
22. Ability to speak English and financial independence are neutral factors rather than matters that enhance an individual’s side of the balancing exercise but is not made out all relevant factors were not taken into account by the Judge holistically, as a reading of the determination clearly demonstrates. This ground is no more than disagreement with the outcome of the proportionality assessment undertaken by the Judge which included reference to the Appellant’s immigration status and the fact that it had been precarious or unlawful for the majority of the time he has been in the UK, which warranted little weight being given to his private life. The Judge’s overall finding that the Secretary of State had established that the weight given to the public interest was the determinative factor has not been shown to be a finding outside the range of those reasonably open to the Judge on the evidence. No material legal error is made out in relation to Ground 5.
23. Ground 6 asserts a misapplication of Article 8 in the proportionality test, claiming the Judge failed to properly undertake that test, repeating the claim that the Appellant’s private life, medical condition and dependency on his cousin was not out properly balanced against the public interest. This ground is without merit. The Judge clearly did as a reading of the determination as a whole shows. Disagreement with the outcome of the proportionality assessment and desire to remain in the United Kingdom does not warrant a finding that the Judge did not properly assess the evidence available to the First-tier Tribunal. No material legal error is made out in relation to Ground 6.
24. As noted above, the weight to be given to the evidence was a matter for the Judge. The Judge has made findings in the determination which are adequately reasoned. The Judge clearly considered the evidence with the required degree of anxious scrutiny. Disagreement with those findings is not sufficient to establish material legal error, per se. Whilst the Appellant disagrees with the outcome and clearly would want to remain in the United Kingdom the grounds fail to establish that the Judge’s decision is plainly wrong. No legal error material to the decision has been made out sufficient to warrant a finding that the outcome is rationally objectionable. On that basis the appeal must fail.

Notice of Decision

25. The First-tier Tribunal has not been shown to have erred in law. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025