Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000041

First-tier Tribunal Nos: HU/50356/2024
LH/04910/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

CHARLES HUNTER ROGERS
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Martin, Counsel instructed by Connaught Law Limited
For the Respondent: Miss R Tariq, Senior Home Office Presenting Officer

Heard at Field House on 18 June 2025

DECISION AND REASONS
Introduction
1. The appellant is a citizen of the United States of America born in 1984. He appealed to the First-tier Tribunal (FtT) against the decision of the respondent which was dated 9 December 2023. The respondent had refused his application for indefinite leave to remain in the UK on the basis of the then paragraph 276B of the Immigration Rules, as well as on the basis of an art 8 private life claim outside the Immigration Rules. For convenience I refer to the parties as they were in the FtT throughout this determination.

In the First-tier Tribunal
2. In a decision dated 19 November 2024 the FtT allowed his appeal. The Judge found that the appellant does not meet the 10-year continuous lawful residence requirement, but that the appellant’s removal would be an unlawful interference with the appellant’s Art 8 ECHR rights.
3. The respondent appealed on two grounds. The first ground was to the effect that the Judge failed properly to undertake the proportionality balancing exercise and did not take into account the factors as required by Section 117B of the Nationality, Immigration and Asylum Act 2002, that the judge failed to take into consideration that the appellant did not meet the Immigration Rules as being relevant to the assessment of proportionality and, further, that the judge did not use the balance sheet approach in analysing the case.
4. The second ground was that the judge failed to give reasons for finding that there were unduly harsh consequences which would result from the appellant’s removal.
5. I echo the observation of the Judge giving permission to appeal that the two grounds are effectively arguing the same thing. They sought to appeal on the basis of shortcomings in the Judge’s reasoning of the art 8 balancing exercise.
In the Upper Tribunal
6. I heard the Error of Law arguments on 7 March 2025 and allowed the appeal in a decision promulgated 24 March 25. I allowed the appeal and set aside the FtT decision on proportionality. I retained the finding that the appellant did not meet the 10-year continuous lawful residence requirement of the Immigration Rules and determined that the case fell to be decided on the question of Art 8 proportionality alone.
7. The appellant submitted evidence additional to that available at the Error of Law Hearing. The day before the re-making hearing the appellant filed and served an additional letter in evidence from the co-CEOs of Dice Entertainment. I canvassed the advocates at the start of the hearing and the respondent had no objection to this letter being added to the evidence in the case. I concluded it was fair and in accordance with the overriding objective to allow this additional evidence to be relied on.
8. I heard live evidence from the appellant, who was cross-examined, and submissions from both parties. I assess the appellant’s evidence more fully below, but it is convenient to state here that I observed him to be a witness who engaged with questions, and sought to answer them fully. The appellant’s evidence is coherent and logical with no meaningful inconsistencies. I find him to be a credible witness.
9. The respondent’s submissions can be summarised as being that the appellant doesn’t meet the Immigration Rules, which deserve respect as a statement of where the balance between art 8 rights and the public interest should lie. The appellant has a meaningful amount of experience and qualifications which he could put to good use were he removed to the USA and that, while the appellant would face difficulties were he removed, these are not such as to tip the scales in his favour.
10. The appellant submits that the evidence shows that he has a firmly established life in the UK and that a notable feature of this case is that the appellant’s profession in the arts is not one that can travel like, for example, that of an accountant because it relies so heavily on the contacts made in the profession in the UK.
11. Proportionality assessment. I turn to the proportionality of the respondent’s decision.
12. I keep in mind that the maintenance of effective immigration control is in the public interest. It weighs neutrally in my analysis that the appellant can speak fluent English and is financially independent.
13. The appellant’s immigration status in the UK has, I find, been at all times lawful and precarious. I therefore remind myself that little weight should be given to the private life he has established, in line with s117B(5) of the Nationality, Immigration and Asylum Act 2002 and I remind myself of the guidance given in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 at [49].
14. No other elements of s117A-D of the Nationality, Immigration and Asylum Act 2002 are engaged. I weigh against the appellant that he cannot satisfy the requirements of the Immigration Rules.
15. The nature of the appellant’s private life in the UK centres on his professional endeavours within the UK TV and Film industry. He graduated from the National Film and Television School in 2021, and his evidence is that his creative efforts probably began in the UK in 2013. I consider it more likely than not that graduating from a UK institution will have some effect in terms of grounding a person’s professional approach (and therefore personal life) in UK culture and society. At the same time it shows that he has acquired skills which are likely to be transferrable, to a certain extent, to the equivalent industry in the USA.
16. I have available to me letters from people supporting the appellant’s application for leave to remain. I keep in mind in deciding what weight to give to these letters that they are not witness statements and the people who give them were not available for cross examination. The letters speak of the appellant integrating “himself well into the British community”, and of him writing and directing films currently in development. Neely Reyes speaks of his “depth of knowledge, industry experience, and creative mastery” and a desire to appoint him as a managing partner in their production company.
17. The picture painted by them as a whole is one where the appellant has wholeheartedly committed to learning and developing his trade in the UK Film and TV. I consider that the number and style of the letters is consistent with the appellant’s evidence to me that he has worked hard over the years to build his professional network (in exercise of art 8 rights) with people either breaking into the UK TV and film industry or established in it.
18. All the letters speak of him having positive good character, which is not (in my judgment) something that is directly relevant to his private life in the UK, but does provide some consistency with his claimed passionate involvement with the UK TV and Film industry.
19. The appellant has provided a notable amount of evidence in the form of scripts and treatments or summaries of projects. I consider that these provide corroboration of his claim that he has been, and is, involved in a number of creative works.
20. It is, I consider, helpful to keep in mind that the appellant has been in the UK lawfully for over 10 years and (I find) exercising his art 8 rights to varying degrees and building his private life throughout that time. I highlight the length of time he has spent building a life in the UK not because it can be seen as coming close to meeting the Immigration Rules requirements: once he fails to meet the Immigration Rules any comparison to how close he comes to them is of no use to him and the failure to satisfy the rules counts against him. However, I find that the amount of time that he has been in the UK does assist in assessing the depth of his art 8 rights and I find that he has exercised and developed his art 8 life throughout that time.
21. The appellant’s evidence is that his creative work is deeply rooted in the UK, both geographically and in its ethos, collaborative style and the culture of storytelling. He says they are built on relationships that he has developed over the years and which he could neither replicate in the USA nor could he work remotely from the USA. His evidence is that the US film industry is structurally and culturally different form that of the UK, with the UK market being more inclined to amateur-driven, independent storytelling whilst the US is heavily commercialised. He raises this in evidence in his second witness statement and I sought to confirm my understanding of it when he gave live evidence. When I confirmed with him my understanding of this part of his evidence I offered both parties the opportunity to ask any questions arising (there were none). I find his evidence on the difference in the UK and US industries to be credible, and I accept the submission made for the appellant that his is therefore not a trade which is easily removable to another country.
22. The additional evidence bundle for the re-making hearing contains correspondence with who the appellant says are other industry professionals interested in working on projects with him. The late-submitted letter from Dice Entertainment states that he is working on projects likely to evolve over a number of years in the UK and that he needs to be in the UK to contribute to these. The potential of future work in the UK weighs neutrally in my assessment and does not assist the appellant, but I accept that to get to the point of having the potential of such work does reflect establishing and developing relationships with the ‘outside world’ and are therefore illustrate the appellant’s art 8 rights.
23. The appellant has family in the USA in that his mother lives there. His evidence is that she is elderly and, whilst she lives in a ‘very small’ townhouse, he would be a burden on her and he has a distant and strained relationship with her. She has another son, the appellant’s half-brother. The appellant has no close family ties in the US, his father, and abusive alcoholic, having died a number of years ago and the trauma associated with that being something that the appellant has worked to “move past” whilst living in the UK. I assess that the appellant’s private life with his family in the USA is minimal and that there is not a firm family base on which he could build a private life in the USA.
24. I find that the appellant’s private life in the UK does have strong features, and is unusual in its nature, because the ability to use and develop the networks and relationships, skills and creative ethos that he has developed in relation to the film and TV industry would essentially be lost to him were he removed to the USA. I agree with the submission that this is different to many occupations, trades and professions – my assessment is on the unique circumstances of the appellant. I find that the evidence of the appellant is sufficient to conclude on the balance of probabilities that he would not, if removed to the USA, be able to build a similar network and creative ethos to that which is borne of his training in the UK and the contacts and culture he obtained here.
25. I am satisfied that the particularly strong features of the appellant’s art 8 rights are capable of outweighing the public interest in this case, without doing violence to the wording of s117B. I am drawn to the finding that the appellant’s removal would be unduly harsh and that the public interest does not outweigh the interference with the appellant’s art 8 rights.
26. I conclude that the decision of the respondent to refuse leave to remain is a disproportionate interference with the appellant’s art 8 rights.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside, save that I retain the First-tier Tribunal findings that the appellant does not meet the requirements of ten years continuous lawful residence under the Immigration Rules.
I remake the decision, acting pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 by:
1. Allowing the appeal on Article 8 ECHR grounds.

D Cotton

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000041

First-tier Tribunal Nos: HU/50356/2024
LH/04910/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

Charles Hunter Rogers
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State
for the Home Department
Respondent

Representation:
For the Appellant: Mr J Martin of Counsel, instructed by Connaught Law Limited
For the Respondent: Ms S Cunha, Home Office Presenting Officer

Heard at Field House on 7 March 2025

DECISION AND REASONS
1. This is an appeal by the Home Office but, for ease of reference, I refer to the parties as they were in the First-tier Tribunal.
2. The appellant is a citizen of the United States of America born in 1984. He appealed to the First-tier Tribunal against the decision of the respondent dated 9 December 2023, which refused his application for indefinite leave to remain in the UK on the basis of what was then paragraph 276B of the Immigration Rules, as well as on the basis that his removal would be an unlawful interference with his Article 8 private life rights.
3. In a determination dated 19 November 2024 the First-tier Tribunal Judge, Judge Sweet, allowed the appeal and the respondent appealed to the Upper Tribunal with the permission of the First-tier Tribunal on two grounds, as outlined in the grounds of appeal.
4. The first ground is effectively that the judge failed properly to undertake the proportionality balancing exercise and did not take into account the factors as required by Section 117B of the Nationality, Immigration and Asylum Act 2002, that the judge failed to take into consideration that the appellant did not meet the Immigration Rules as being relevant to the assessment of proportionality and, further, that the judge did not use the balance sheet approach in analysing the case.
5. The second ground on the application to appeal was that the judge failed to give reasons for finding that there were unduly harsh consequences which would result from the appellant’s removal.
6. Permission was given on 2 January 2025 and the judge giving permission noted that both grounds effectively argue the same thing, which is that there is a lack of fact-finding to explain why the public interest in immigration control was outweighed by the interference with the appellant’s private or family lives.
7. I had the benefit of submissions from both parties before me and I am grateful to representatives on both sides for their submissions. The respondent submitted that the judge failed to carry out the balancing exercise, applied the wrong test by referring to a test of unduly harsh consequences and did not take into account the appellant not meeting the Immigration Rules, nor did the judge take into consideration Section 117B factors.
8. The appellant submits that the judge has not fallen into material error and submits that the judge had laid out that they had taken into account the length of time that the appellant was in the UK and so one can see, from reading the judgment, that the judge has had that as a consideration in the Article 8 proportionality exercise. Further, the judge had heard what has been described to me as extensive evidence on the appellant’s private life in the UK and that the judge plainly made a decision based on that evidence.
Analysis and conclusions
9. I remind myself of the need to show appropriate deference and respect for the finding of the First-tier Tribunal Judge. The First-tier Tribunal is a forum where this case is heard by a judge with extensive skills and experience in a specialist jurisdiction. My function is to consider any argued errors of law not to consider any sort of preference of style or approach.
10. Having taken into account the submissions and the documents available to me I am not persuaded that there is a material error of law represented by the judge using a wrong test. In my view, it is sufficiently clear that the judge was considering proportionality. I am also not persuaded by the argument on behalf of the respondent that the judge was lazy. This submission was very unattractive.
11. I do find that the judge has fallen into errors of law. I found that the judge falls into an error of law by failing to make sufficiently clear, or appearing not to take into account, the factors detailed in Section 117B of the Nationality, Immigration and Asylum Act 2002. The Act requires a Tribunal to take those factors into consideration where they are relevant to the case.
12. I also find that the judge’s decision does not appear to take into consideration that the appellant does not meet the Immigration Rules. It is not sufficiently clear that the judge has weighed this in the balancing exercise that they were required to undertake.
13. I further find that it is not possible to see how the judge came to the conclusion that there are unduly harsh consequences if the appellant were to be removed. The judge does recount evidence that the appellant was engaged with various projects in the UK and that the refusal of his application for leave to remain would, in the words of the judge at paragraph 10, be devastating to completion of those projects.
14. Although I am told that the judge heard extensive evidence, it is not sufficiently clear on the reading of the judgment what this evidence was or how the judge analysed that evidence. It is unclear therefore how the judge came to the conclusion that this equates to proportionality of being in the appellant’s favour.
15. Having found those errors I also come to the conclusion that they are material because the reader is unable to tell whether the judge took the required factors into consideration and how they came to the conclusion that the appellant’s removal would be disproportionate.
16. I find no error in the judge not using the balance sheet approach. Although that was not argued in submissions before me today, it does form part of the grounds for appeal and so I address it. The balance sheet approach is considered best practice but is not a requirement.
17. I therefore allow the appeal and I set aside the decision on Article 8 proportionality. I retain the First-tier Tribunal findings that the appellant does not meet the requirements of ten years continuous lawful residence under the Immigration Rules and so the case falls to be remade on Article 8 proportionality alone.
18. I heard submissions from both parties on the appropriate forum for this case should I come to this conclusion. I am satisfied, in accordance with the relevant Practice Direction, that this is a case which is suitable to be retained in the Upper Tribunal.
19. I considered an application to adjourn by the appellant, which would enable the appellant to produce additional evidence on his private life, and I considered submissions from the respondent that the respondent remained neutral on the application and that there would be no prejudice to the respondent. I took into consideration the overriding objective and concluded that fairness required me to adjourn the remaking hearing. I give the following directions.

Directions
20. 14 May 2025 – The appellant is to:
(a) File online and serve on the respondent a composite electronic bundle which complies with the President’s Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC), to include the additional evidence;
(b) If there is to be a skeleton argument, this is to be included in the composite bundle.
21. 4 June 2025 – The respondent is to provide any response to the additional evidence and skeleton argument that she wishes to.
22. 18 June 2025 at 1000 hrs – the appeal is listed for remaking on the issue of Article 8 proportionality in the Upper Tribunal at Field House. This listing takes into account the availability of counsel for the appellant.

D Cotton

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2025