Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000132
First- tier Tribunal Nom: HU/53473/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
16th May 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
SHAHANA AHMED
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr L Rahman, Counsel, instructed by Chambers of M M Hossain
For the respondent: Ms S-A Nwachuku, Senior Presenting Officer

Heard at Field House on 6 May 2025

DECISION AND REASONS

Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of her human rights claim. It follows the decision of the Upper Tribunal (Deputy Upper Tribunal Judge Hobbs), promulgated on 2 April 2025, by which she found that the First-tier Tribunal had committed material errors of law when allowing the appellant’s appeal on Article 8 grounds.

2. The appellant is a national of Bangladesh who came to United Kingdom in June 2022 as a visitor and then failed to leave this country in accordance with the conditions of her leave. Instead, on the day her leave to enter was due to expire she made an application for leave to remain based on Article 8. She asserted that she had no one in Bangladesh because all of her immediate family members had themselves come to this country over the course of time. Her human rights claim was refused by the respondent on 18 March 2024. The appellant appealed to the First-tier Tribunal, basing her case on both private and family life. In particular, she relied on her Islamic marriage to Mr K, a Bangladeshi national with refugee status in this country.

3. The First-tier Tribunal (Judge Greer) allowed the appellant’s appeal on the family life issue, concluding that the relationship with Mr K could not be continued in Bangladesh because of his refugee status.

4. The respondent appealed to the Upper Tribunal and Judge Hobbs concluded that the First-tier Tribunal had erred in two respects. First, the judge had failed to engage with the “little weight” provision under section 117B(4) of the Nationality, Immigration and Asylum Act 2002. Second, the judge had failed to consider whether it would be proportionate for the appellant to have returned to Bangladesh and made an entry clearance application from there. Judge Hobbs set the First-tier Tribunal’s decision aside, but preserved the findings set out at [1]-[10] of that decision: see [30] of Judge Hobbs’ decision.

The re-making issues
5. There was a preliminary discussion in order to clarify the relevant issues at this stage.

6. Mr Rahman acknowledged that the preserved findings had the effect of precluding the appellant from relying on the existence of very significant obstacles to her reintegration into Bangladeshi society. Whilst very significant obstacles to reintegration is a broad evaluative assessment, Mr Rahman’s position was realistic and sensible. The specific findings of fact made by the First-tier Tribunal at [1]-[10] point in only one direction, namely the absence of very significant obstacles.

7. Through a skeleton argument prepared for the resumed hearing, the appellant sought to bring in an argument which had not seemingly being raised previously, namely EX.1 of Appendix FM.

8. Ms Nwachuku submitted that this constituted a “new matter” because the appellant’s original human rights claim had been based on private life, not family life. However, she confirmed that the respondent would give consent to it being considered.

9. For my part, it was not obvious that reliance on EX.1 was a “new matter”. It is right that the original human rights claim was based on private life only (it being made prior to the claimed relationship with Mr K having started). Having said that, the relationship between the appellant and Mr K had been considered by the respondent in her pre-hearing review within the First-tier Tribunal proceedings. The matter had also been considered by the First-tier Tribunal, without objection by the respondent. In my view, the development in the appellant’s case related to a particular provision of the Immigration Rules, not a new factual matter. I conclude that it was not a “new matter”, but in any event it makes no difference in light of the respondent’s consent.

10. For the avoidance of any doubt, I am satisfied that the respondent giving of consent must have the effect that the requirement under R-LTRP.1.1(b) of Appendix FM (that the individual must have made a valid application for leave to remain as a partner) is not now fatal to the appellant’s case under the Rules. Unfortunately, neither representative in fact addressed me on this point.

11. The representatives focused their attention on what was said to be the central controversial issue under Appendix FM, namely whether Mr K is the appellant’s “partner”.

12. There has been no express challenge to the genuineness and subsistence of the relationship between the appellant Mr K, although neither has there been an express concession in the appellant’s favour.

13. Ms Nwachuku accepted that if the appellant could show that Mr K was a “partner” within the meaning of GEN.1.2 and other relevant provisions of Appendix FM, it would follow that satisfy EX.1 would be satisfied because Mr K’s refugee status would amount to “insurmountable obstacles” to the family life being continued in Bangladesh. It was also accepted that satisfaction of EX.1 would permit the appellant to succeed in her appeal (presumably, this position reflects TZ (Pakistan) [2018] EWCA Civ 1109).

14. The respondent has not relied on any suitability provisions under Appendix FM.

15. Neither representative engaged with R-LTRP.1.1 and E-LTRP.2.1 of Appendix FM. I accept that I did not raise the issue myself at the hearing, having only appreciated the significance of these provisions post-hearing. To ensure fairness, I issued directions for the parties to provide further submissions on the matter. I received written submissions from Mr Rahman on 8 May 2025, and from Ms Nwachuku 12 May 2025.

16. R-LTRP.1.1 provides as follows:

Section R-LTRP: Requirements for limited leave to remain as a partner
R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are-
(a) the applicant and their partner must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either
(c)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner; or
(d)
(i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1-2.2.; and
(iii) paragraph EX.1. applies.
[Emphasis added]

17. E-LTRP.2.1 provides as follows:

E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings
[emphasis added]

18. If necessary, Article 8 outside of the Rules must be considered. This would include the question of whether it would be proportionate for the appellant to return to Bangladesh alone and make an entry clearance application to rejoin Mr K.

The evidence
19. I have considered the evidence contained in the appellant’s resumed hearing bundle, indexed and paginated 1-79 (unhelpfully, it does not in fact contain all relevant materials, nor are there any bookmarks) together with the error of law bundle prepared by the respondent at an earlier stage.

20. The appellant, Mr K, and the appellant’s father attended the hearing and gave oral evidence with the assistance of a Bengali Sylheti interpreter. There were no difficulties with communication and I am satisfied that the witnesses understood the questions put to them.

21. The oral evidence was recorded and I took a handwritten note. I will address relevant aspects of that evidence (and the written evidence) when setting out my findings, below.

The parties’ submissions at the hearing
22. Ms Nwachuku relied on the reasons for refusal letter and the review. She accepted that Mr K is a refugee and that this would amount to insurmountable obstacles to family life been enjoyed in Bangladesh. She submitted that the appellant had to show that she had been in a relationship with Mr K akin to marriage for two years or more. She asked me to place limited weight on the evidence as a whole. There was concerning cohabitation and no good reason for why additional evidence had not been provided. She submitted that the appellant could make a new application if the marriage went ahead. She submitted that the evidence of the marriage appointment was itself unreliable because it was not on headed letter paper, nor was there an email chain. She submitted that the appellant had not been living with Mr K since the Islamic marriage in January 2023, but at most from the July 2024. She submitted that the appellant could and should return to Bangladesh and make an entry clearance application. There were no exceptional circumstances in her case and the appellant should not be permitted to circumvent the usual requirements of the Rules. The public interest should be placed at the forefront of my considerations.

23. Mr Rahman relied on the skeleton argument drafted by Mr M Hossain. He submitted that the appellant’s relationship with Mr K was genuine and subsisting. He pointed out that GEN.1.2(iv) had been amended in 2024 and there was no longer any requirement for cohabitation. He submitted that the appellant could succeed under EX.1. Alternatively, he submitted that there were exceptional circumstances which meant that the appellant should not be required to return to Bangladesh and make an entry clearance application. He relied in particular on Mr K’s refugee status and the couple’s inability to meet the financial requirements of the Rules. He observed that the prospects of the appellant been granted entry clearance were “zilch”.

24. At the end of the hearing I reserved my decision.

Post-hearing evidence and written submissions
25. It became apparent that the appellant and Mr K had an appointment to be married at a Registry Office the day after the resumed hearing. With the parties both approaching the case on the basis that Mr K’s status as a “partner” within the meaning of Appendix FM was a (if not the) central issue in the appeal, I regarded it as odd that the appellant had not applied for an adjournment until after the marriage had in fact taken place. That event would, all other things being equal, have resolved the “partner” issue: Mr K would then have been the appellant’s “spouse” and there would have been no need to rely on a relationship “similar to marriage” under GEN.1.2(iv). In the absence of the E-LTRP.2.1 issue, the marriage might well have avoided a good deal of hearing time.

26. In the event, and with a degree of hesitation, I permitted the appellant to provide post-hearing evidence of the marriage. I did this because I remain seized of the appeal until my decision is promulgated. Promulgation would not have occurred prior to the marriage taking place and it would have been artificial and contrary to the interests of justice if I were to simply ignore the fact of the marriage having taken place whilst preparing my written decision; a decision which is ostensibly concerned with whether Mr K is a “partner” or not.

27. I issued an oral direction for any evidence of the marriage having taken place to be filed and served no later than 4pm on 8 May 2025, with a response from the respondent no later than 4pm on 12 May 2025. Mr Rahman provided a copy of the marriage certificate together with his written submissions relating to the issue under E-LTRP.2.1. In her written submissions of 12 May 2025, Ms Nwachuku noted that the original marriage certificate had not been provided and submitted that the appellant was a visitor and so was caught by E-LTRP.2.1. She accepted that if all relevant provisions under Appendix FM were satisfied and the appellant was now married to Mr K, there would be insurmountable obstacles to the continuation of family life overseas.

Findings and conclusions
28. It is for the appellant to prove the facts she relies on and this must be done on the balance of probabilities.

29. In making the relevant findings of fact and undertaking evaluative assessments, I have considered the evidence as a whole.

Private life under Appendix Private Life
30. I am satisfied that the appellant cannot succeed under Appendix Private Life.

31. She arrived in this country at the age of 26 and has resided here for only three years on the most precarious basis possible (other than being an overstayer). I take account of the preserved findings made by the First-tier Tribunal at [1]-[10] of its decision. There is no evidence now before me which in any way undermines those findings.

32. The appellant maintains her unmeritorious assertion that she would be unable to safely reside in Bangladesh alone. However, in light of the preserved findings and the evidence as a whole, and having undertaken a broad evaluative assessment, I conclude that there are no very significant obstacles to her re-integrating into Bangladeshi society. The appellant is healthy. She resided in Bangladesh until the age of 26 without difficulties. Indeed, she lived alone from 2015 when her mother passed away. She worked in Bangladesh. She has only spent a short period of time away from that country. There is no evidence before me to suggest that the property he owned in the country has been disposed of. There is no evidence before me to suggest that she could not be provided with at least some financial support by family members residing in this country (although I make it clear that that is not a significant consideration in my assessment). I reiterate what the First-tier Tribunal concluded in respect of the position of women in Bangladesh: gender is not sufficient to demonstrate very significant obstacles.

Private life outside of the Rules
33. I am prepared to accept that the appellant has established a degree of private life in the United Kingdom, but on any view it is, to say the least, thin.

34. Taking the private life in isolation, her removal from this country would not even constitute a sufficiently serious interference.

35. Even if removal did sufficiently interfere with the private life, I am satisfied that it would be wholly proportionate. In addition to all of the matters set out in respect of the very significant obstacles assessment, I take account of the following: the “little weight” factor under section 117B(5) of the 2002 Act applies without any basis for mitigation; the appellant clearly does not speak English to a reasonable standard; she is not financially independent in any way.

36. The public interest is strong. Whilst I do not reach a finding on the point, one might have real concerns as to the appellant’s intentions when applying for and obtaining the visit visa which permitted her to enter this country in 2022. Her decidedly unmeritorious grounds for seeking leave to remain at the end of her leave as a visitor relied on a lack of family members in Bangladesh. There has clearly been a pattern of family migration to this country, which the appellant was self-evidently aware of throughout.

Family life under Appendix FM
37. It has previously been confirmed that EX.1 does not stand in isolation from other provisions of Appendix FM. An individual can only rely on the exception if certain other provisions are satisfied: Sabir (Appendix FM - EX.1 not free standing) [2014] UKUT 00063 (IAC). The appellant appears to have overlooked this and I have not been assisted with the failure to have engaged with the overall architecture of Appendix FM.

38. It is clear that the appellant cannot satisfy all of the substantive requirements of Appendix FM: she cannot, for example, meet the financial and English language requirements.

39. There are no suitability issues taken against the appellant.

40. The appellant arrived in this country as a visitor and applied for leave to remain in-time. She is currently on section 3C leave and is not therefore an overstayer.

41. Mr Rahman contended in his written submissions that the appellant is not a visitor because her leave expired and she has leave extended by virtue of section 3C of the Immigration Act 1971. I disagree. I conclude that the appellant is precluded from relying on EX.1 because she was in the United Kingdom as a visitor and remains a visitor because that leave has been extended by section 3C(2) of the 1971 Act. The appellant is therefore caught by E-LTRP.2.1(a) and cannot rely on EX.1.

42. I will address the issue of exceptional circumstances in the next section of my decision. The provisions of GEN.3.2 are reflective of the need to conduct a proportionality balancing exercise where appropriate and it makes no difference whether this is done within or without the Rules.

Family life outside of the Rules
43. It is clear that there is family life between the appellant and Mr K. For the reasons set out below, I am satisfied that the appellant in fact married Mr K on 7 May 2025 and that they are, and have been since January 2023, in a genuine and subsisting relationship.

44. Ms Nwachuku was right to emphasise problems with the documentary evidence: it is thin and there are only three sources which place the appellant at Mr K’s address (bank statements, and NHS letter, and a recent tenancy agreement from January 2025). The bank statements confirm that the appellant’s address was “last updated” in July 2024 and that date would appear to be consistent with the appellant’s July 2024 witness statement, which stated her address to be that of her father.

45. The appellant’s oral evidence on cohabitation was vague. There was a poor explanation for why a previous tenancy agreement had not been provided, although it appears as though only Mr K was named on it in any event.

46. Whilst I have concerns over the appellant’s own evidence in general, Mr K and the appellant’s father both clearly stated that she had left the family home following the Islamic marriage on 29 January 2023 and lived with her husband thereafter. There is no good reason for me to disbelieve their combined evidence, at least on the balance of probabilities.

47. Further, as a matter of religious and cultural norms, I find it to be more likely than not that the couple would have begun living together after the marriage and that this would have been in a property owned or rented by her husband, rather than her husband residing with his wife and her family.

48. I also take into account such documentary evidence on cohabitation is there was. The bank statements, NHS letter, and 2025 Tenancy Agreement place the appellant at Mr K’s address.

49. On balance, I am satisfied that the couple did in fact begin to cohabit immediately following the Islamic marriage on 29 January 2023. If I wrong about that, I am satisfied that the couple began cohabitating in July 2024 at the latest.

50. As mentioned previously, the respondent has not expressly disputed the genuineness and subsistence of the appellant’s relationship with Mr K. Certainly, there has been no assertion that the relationship is a sham nor has there been any challenge to the fact that the couple underwent an Islamic marriage. I find that this event did in fact occur. On the evidence as a whole, it is clear that the appellant Mr K are religiously and culturally observant individuals. I am satisfied that the Islamic marriage represented an important step for them both. The evidence (including the photographs) indicate that the appellant had the support of her family.

51. I am satisfied that the colour copy of the marriage certificate is a true copy of the original and that its contents are reliable. The certificate is accompanied by a photograph which clearly shows the appellant Mr K in the presence of the Registrar at the Registry Office signing the Register. I am satisfied that the marriage in fact took place.

52. The would clearly interfere with the family life.

53. Moving straight to proportionality, there is a strong public interest in respect of the balancing exercise in this particular case. In addition to the overarching importance of maintaining effective immigration control (section 117B(1) of the 2002 Act), the appellant is, as set out previously, unable to satisfy a number of substantive requirements under the Rules, and not simply the immigration status requirements. I attach considerable weight to this consideration: Agyarko v SSHD [2017] UKSC 11.

54. In addition, she cannot speak reasonable English and is not financially independent; therefore the mandatory considerations under section 117B(2) and (3) of the 2002 Act count against her.

55. Mr K is a refugee from Bangladesh and, as matters currently stand, cannot return to that country.

56. The question then is whether it would be disproportionate for the appellant to return to Bangladesh make an entry clearance application. For the following reasons and as part and parcel of the balancing exercise, I conclude that it would not be disproportionate to do so.

57. First, there has been no suggestion that the appellant would be at risk of harm in Bangladesh, whether in relation to her relationship with Mr K or more generally.

58. Second, I have already concluded that there would be no very significant obstacles to her re-integrating into Bangladeshi society. In the entry clearance scenario, she would not be returning on a permanent basis.

59. Third, I have not been referred to any authority or other materials which suggests that the sponsor’s refugee status of itself amounts to an exceptional circumstance which would render such a course of action disproportionate. Nothing said in Alam v SSHD [2023] EWCA Civ 30 points in that direction. Indeed, my conclusion Mr K’s refugee status is not decisive is supported by what was said by the Upper Tribunal in Younas (section 117B(6)(b); Chikwamba; Zambrano [2020] UKUT 00129 (IAC), at [71]-[72]. Younas (approved in Alam) was a case in which the respondent had conceded that there were insurmountable obstacles to family life continuing abroad (albeit, the sponsor was not a refugee in that case). Nonetheless, the Upper Tribunal concluded the entry clearance option was appropriate and that that it fell to the appellant in the generality of cases to demonstrate that the entry clearance option was disproportionate: [69]-[70] and [83]-[97].

60. Fourth, I do of course place weight on the fact that Mr K is a refugee and that family life cannot be enjoyed together in Bangladesh. However, in my judgment that does not as a matter of principle preclude the possibility of the appellant returning to make an entry clearance application. I say that particularly in light of the fact that the relationship was established and then maintained in the full knowledge that the appellant was in United Kingdom on a highly precarious basis.

61. Fifth, this is clearly not a case in which it is “certain” that entry clearance would be granted and that the need to make an application from abroad is nothing more than a technicality. The appellant’s human rights claim was not refused on that narrow basis, nor is my decision.

62. Sixth, this is not a case in which it is certain (or close to certain) that the appellant would be refused entry clearance. For example, there are no suitability issues engaged which will automatically apply to an application. Importantly, even if certain substantive requirements of Appendix FM could not be satisfied (for example, the financial requirements), the appellant would still be entitled to rely on GEN.3.1 or GEN.3.2 and raise human rights grounds under Article 8. In particular, she would be able to assert that Mr K’s refugee status was an important consideration. An Entry Clearance Officer would be bound to consider the application within and outside the Rules. A refusal would, in the ordinary course of events, attract a right of appeal.

63. Seventh, it is for the appellant to demonstrate that even a temporary separation from Mr K would have disproportionate (unjustifiably harsh) consequences. There is no evidence before me capable of demonstrating any such consequences, with reference to, for example, health. There are of course no children involved in this case.

64. Eighth, I have not been provided with any evidence as to the potential waiting times for entry clearance applications made in Bangladesh to be decided, nor for the processing of appeals in the First-tier Tribunal should an application be refused. I have not been provided with any evidence to support Mr Rehman’s assertion that the prospects of being granted entry clearance were “zilch”. It appears to me as though the appellant and her representatives have given very little, if any, consideration to the question of whether an entry clearance application could be made. In light of the error of law decision, that is, to say the least, unfortunate. I am not satisfied that a separation of the appellant from Mr K would be effectively permanent or even particularly lengthy.

65. It follows that the appellant’s appeal falls to be dismissed.

Anonymity
66. There is no basis for making an anonymity direction in this case and I do not do so.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is dismissed on Article 8 grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 13 May 2025