Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000088

First-tier Tribunal No: PA/62566/2023
LP/05656/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

K.G.
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Wass (Counsel, instructed via Public Access Scheme)
For the Respondent: Miss Everett (Senior Home Office Presenting Officer)

Heard at Field House on 11 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal brought, with permission, by the appellant against a decision of First-tier Tribunal Judge Hallen (“the Judge”) dated 13 November 2024, in which the appellant’s protection and human rights appeal was dismissed.

2. In summary, the appellant is a citizen of Nepal and left Nepal on 23 January 2011 and entered the United Kingdom with leave to enter as a student. The appellant claimed asylum on 18 December 2020 on the basis of political activities with the Madhesi Political Movement in 2009. His student visa expired on 4 May 2013 and since that time he remained in the United Kingdom without any leave to remain. The appellant is in a relationship with a British citizen, and they have been living together since October 2022 and religiously married since October 2023.

3. The Judge did not find the appellant to be a credible witness with respect to his protection claim, which was dismissed and I need say no more about that since those findings are not challenged in this appeal.

4. With respect to the article 8 case, the Judge accepted without doubt that family life was engaged between the appellant and his partner. The Judge found the relationship to be genuine and subsisting and one that satisfied the requirements of the immigration rules [25]. The Judge did not accept that there were insurmountable obstacles for the couple to continue their family life in Nepal [26]-[28]. Those findings are not challenged in this appeal.

5. Having found that the Immigration Rules were not met, the Judge went on to conduct an article 8 balancing exercise. Having noted the earlier findings that article 8 (1) is engaged and that the Immigration Rules are not met, the Judge noted by reference to section 117B of the Nationality, Immigration and Asylum Act 2002 that maintenance of effective immigration control is in the public interest, as is the ability of those seeking to remain in the United Kingdom to speak English and to be financially independent. Although the Judge found that the appellant “does not speak good English” he treated this as a neutral factor [29]. The Judge gave little weight to the family life that the appellant has developed whilst in the United Kingdom unlawfully in accordance with s.117B (4). The Judge accepted that moving to Nepal to be with the appellant would present some hardship to his partner because she has a home, a job and her parents and friends here and that she would have to maintain those relationships from a distance [29].

6. Ultimately, when striking a fair balance between the competing public and individual interests, the Judge did not find the factors raised by the appellant outweighed the public interest and that his removal to Nepal would not give rise to unjustifiably harsh consequences [30].

7. The Judge also took account of the fact that the appellant can reasonably be expected to return to Nepal and make an entry clearance application as a spouse. The Judge concluded that there is “a reasonable prospect” that the appellant would be able to re-enter as a spouse because he had found there was a genuine and subsisting relationship, his partner appears to meet the financial requirements as a Healthcare Assistant earning £32,000 per annum and that the appellant no doubt speaks some English having lived here for 14 years. Temporary separation for that purpose, the Judge concluded, would not be disproportionate when weighed against the maintenance of effective immigration control. It is this aspect of the Judge’s decision that is challenged in this appeal.

Summary of grounds and submissions

8. Miss Wass on behalf of the appellant contends that the Judge failed to give proper consideration to the third question posed in Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan 2020 UKUT 129 (IAC), I set out the four questions referred to for context:

“92.     The first question to be addressed is whether her temporary removal from the UK is a sufficient interference with her (and her family's) family life to even engage article 8(1). If article 8(1) is not engaged then the proportionality of removal under article 8(2) - and therefore the Chikwamba principle - does not arise.
…
94.     The second question is whether an application for entry clearance from abroad will be granted. If the appellant will not be granted entry clearance the Chikwamba principle is not relevant. A tribunal must determine this for itself based on the evidence before it, the burden being on the appellant: see Chen at 39. In this case, we have found, for the reasons explained above, that, on the balance of probabilities, the appellant will be granted entry clearance if she makes an application from Pakistan to join her partner.
95.     The third question is whether there is a public interest in the appellant being required to leave the UK in order to undertake the step of applying for entry clearance; and if so, how much weight should be attached to that public interest.
96.     In some cases, the fact that a person will be able to re-enter the UK means that there will be no public interest at all in his or her removal. By way of example, in Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 the appellant had entered the country lawfully and genuinely on a spouse visa and had remained married to her husband and resident in the UK ever since but had not, thirteen years earlier, made an application for leave. Underhill LJ observed at para. 28:
"It is hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously".
97.     If there is no public interest in a person's removal then it will be disproportionate for him or her to be removed and no further analysis under Article 8 is required. On the other hand, if there is at least some degree of public interest in a person being temporarily removed then it will be necessary to evaluate how much weight is to be given to that public interest so that this can be factored into the proportionality assessment under article 8(2).
98.     We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant's removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public's confidence in, the UK's immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls.
99.     The fourth question is whether the interference with the appellant's (and her family's) right to respect for their private and family life arising from her being required to leave the UK for a temporary period is justified under article 8(2). This requires a proportionality evaluation (i.e. a balance of public interest factors) where consideration is given to all material considerations including (in particular) those enumerated in section 117B of the 2002 Act.”
9. Miss Wass makes a simple point in the grounds that the Judge failed to consider what weight should be given to the public interest in the case of temporary separation before moving on to conduct the proportionality assessment.

10. In her oral submissions Miss Wass emphasised that the Judge’s consideration of the third question in Younas was the problem. She submitted that some of the circumstances in the case law, such as giving false information in support of an application to enter as a visitor weighed heavily in favour of the public interest but in this case the appellant had entered on a valid student visa, and he had now been given permission to work. She further submitted that in addition to considering the appellant’s method of entry the Judge should have considered what weight can be attached to the relationship rather than treating the position as a mandatory one where no weight is given.

11. Miss Everett on behalf of the respondent contended that there was no error of law. The Judge had clearly found that the rules were not met and when striking a fair balance between the public interest and the appellant, he found in favour of the public interest. Demanding the more nuanced aspect of the public interest to be spelt out would not make a difference to the outcome. There is no suggestion that the Judge overlooked any evidence. The Judge is speculating that entry clearance might be granted, there is no evidence of English language competence and no examination of the requirements of Appendix FM-SE. The appellant had precarious status when the relationship was formed, the rules are not met, and the grounds are wrong to suggest that the fact the appellant entered the United Kingdom legally would make any material difference. The point is the appellant overstayed and was found not credible in his protection claim. She submitted that the determination of the First-tier Tribunal should stand.

12. In reply, Miss Wass submitted that it was inevitable that the Judge would find that the rules were not met because the appellant did not meet the immigration status requirement. I pointed out that the alternative position under Appendix FM by reference to EX.1, for those unlawfully in the United Kingdom, was also rejected.

13. The parties agreed that if I found an error of law that the appeal could be retained by the Upper Tribunal for remaking.

Conclusions

14. I accept that Younas states that it is necessary to evaluate how much weight is to be given to the public interest in the circumstances of temporary separation for the purpose of making an entry clearance application [97]. I also accept that the Judge’s decision does not explicitly engage with that exercise and simply notes that the public interest lies in the maintenance of effective immigration control and that there were no additional factors weighing in favour of the public interest [29]. However, I do not accept that the outcome of this appeal could possibly have been impacted by this more nuanced exercise.

15. Having said that it is necessary to evaluate how much weight is to be given to the public interest, the Upper Tribunal in Younas went on to note [98] that the appellant in that case had entered as a visitor, although her intention was to remain with her partner, and remained in the United Kingdom despite saying in an earlier application she would leave after 6 months. In light of that immigration history, the Tribunal concluded that the public interest in removal was strong and was not significantly diminished by the ability to re-enter with entry clearance.

16. The circumstances of this case are that the appellant entered the United Kingdom as a student, on his case, he had a relevant fear of persecution at that time but remained in the United Kingdom unlawfully from the point of the expiry of his student visa on 4 May 2013 and didn’t claim asylum until December 2020 or otherwise to seek to regularise his status. The appellant does not meet the requirements of the immigration rules to remain with his partner in the United Kingdom on either the 5-year or 10-year route contained within Appendix FM, which provide routes for those either lawfully or those unlawfully in the United Kingdom where there are insurmountable obstacles to family life being continued elsewhere. The fact that the appellant has been given permission to work is most likely as a result of the delay in processing his asylum claim and does not take this matter any further. There is plainly a strong public interest in removing the appellant, even if it is envisaged that he is likely to be able to return with a spouse visa. The integrity of, and the public's confidence in, the UK's immigration system would be undermined if the appellant were able to circumvent the requirements of the Immigration Rules having overstayed for 7 years before attempting to regularise his position. Therefore, even if the Judge had explicitly considered how much weight to attach to the public interest in maintenance of effective immigration control the only conceivable answer would be that there is significant weight to be attached. As such, the Judge’s failure to spell this out in the decision is immaterial.

17. Furthermore, at the balancing exercise stage, the Judge properly applied s.117B(4) which dictates “little weight” is to be placed on a relationship formed when the appellant was unlawfully in the United Kingdom, which he undoubtably was [29]. Little weight does not mean no weight. In the absence of any particularly compelling features, the Judge attached weight to the fact that the appellant’s partner’s life would be disrupted but concluded the weight attached to the appellant’s interests, which was limited by operation of the statutory provisions, did not outweigh the public interest which was not so limited. I cannot see how the Judge’s decision could have been any different on the facts of this case. There are no material errors of law.

Notice of Decision

18. The appeal is dismissed.

19. The decision of the First-tier Tribunal stands.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2025