Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000187

First-tier Tribunal No: HU/02099/2023
HU/57170/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 September 2025

Before

UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE SWANEY

Between

Syed Zubair Ali
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Delbourgo, counsel, instructed by Maxwell Solicitors
For the Respondent: Mr M Parvar, senior presenting officer
Heard at Field House on 8 May 2025
DECISION AND REASONS
Background
1. The appellant appeals the decision of First-tier Tribunal Judge Fox (the judge) promulgated on 22 November 2024 dismissing his appeal against the refusal of his human rights claim.
2. The appellant is a citizen of Pakistan. He claims to have arrived in the United Kingdom on 18 July 2001 with entry clearance as a visitor issued on 28 May 2001 and valid until 28 November 2001.
3. On 16 June 2021 the appellant made an application for leave to remain in the United Kingdom on the basis of his private life, including that he had lived in the United Kingdom for ‘approximately’ 20 years and that he would face very significant obstacles to his integration in Pakistan. The application was treated as a human rights claim and was refused on 20 March 2023.
4. In refusing the application, the respondent did not accept that the appellant had lived in the United Kingdom continuously for 20 years at the date of application and did not accept that he would face very significant obstacles to his integration on return to Pakistan. The respondent did not consider that the appellant’s circumstances were such that a grant of leave outside the Immigration Rules was appropriate.
5. The appellant appealed the decision, and the appeal was heard on 30 August 2024. The appellant and eight witnesses gave evidence. In his decision dismissing the appeal, the judge found that the earliest reliable evidence of the appellant’s presence in the United Kingdom was from 2006 and no earlier. The judge found that the appellant could not meet paragraph 276ADE(1)[(iii)] of the Rules because his application was made less than 20 years since his first arrival.
6. The judge found that article 8 was engaged and considered the appellant’s claim outside the Rules, making findings of fact relevant to the assessment of proportionality. He carried out a balancing exercise, concluding that the appellant’s circumstances did not outweigh the public interest.
7. The appellant sought permission to appeal on three grounds:
(1) The judge wrongly assessed whether or not the appellant satisfied the Immigration Rules at the date of application and ought to have assessed whether he satisfied them at the date of hearing.
(2) The judge applied the wrong test in respect of the appellant’s article 3/article 8 medical claim and on an application of the correct test and consideration of the background evidence, is likely to have succeeded.
(3) The judge erred in giving too little weight to the evidence of the appellant’s friends on the basis that their relationships were formed at a time when the appellant’s status in the United Kingdom was precarious. This is especially the case for the appellant’s friend who knew him in Pakistan before the appellant came to the United Kingdom.
8. Permission to appeal was granted by First-tier Tribunal Judge Mulready in respect of the first ground only. In respect of grounds (2) and (3), permission was refused on the basis that they amounted to disagreements with the judges findings and did not disclose an arguable error of law.
The hearing
9. We considered the oral submissions from Ms Delbourgo and Mr Parvar together with a composite bundle of 570 pages in reaching our decision, the reasons for which are set out below.
The appellant’s submissions
10. In the grounds of appeal and in her oral submissions, Ms Delbourgo relied on MM (Lebanon v SSHD [2017] UKSC 10 and GM (Sri Lanka) v SSHD [2019 EWCA Civ 1630 for her submission that the judge failed to assess whether the appellant would have satisfied the provisions of paragraph 276ADE(1)(iii) at the date of hearing. Ms Delbourgo submitted that it would have been correct for the decision-maker to apply the rule, but that on appeal, the judge had more flexibility to consider the position as at the date of hearing. Ms Delbourgo submitted that the judge failed to consider in his proportionality assessment the appellant’s length of residence and the fact that he had, at the date of hearing, resided in the United Kingdom for more than 20 years.
11. Although she acknowledged that permission was not granted in respect of any challenge to the judge’s findings of fact, Ms Delbourgo sought to argue that the judge’s findings in relation to the appellant’s length of residence were unclear and therefore, taking the appellant’s case at it’s highest, he would have satisfied the rules. She relied on paragraph 5 and paragraph 13 of the judge’s decision. Ms Delbourgo reiterated her submission that the judge had failed to look at the position as at the date of hearing.
12. Ms Delbourgo referred to the grounds of appeal and submitted that the judge applied the wrong test in respect of the medical claim. She stated that the medical evidence was largely submitted as evidence of the appellant’s residence in the United Kingdom and not in support of a free standing medical claim. We reminded her that permission had not been granted in respect of that ground.
13. Ms Delbourgo submitted that there was a ‘fair bit of evidence’ that the Home Office appeared to have accepted in the past regarding the appellant’s and residence in the United Kingdom. We asked her to take us to any of the documents in which the Home Office has accepted either the appellant’s date of arrival or his continuous residence. In response, Ms Delbourgo took us to extracts from the appellant’s Home Office file, which was provided to him in response to a subject access request. She noted that these documents were relied on in the skeleton argument that was before the judge. Ms Delbourgo took us to two passages in the Home Office file on which particular reliance is placed:
(i) A case note dated 29 December 2006 in which it is stated that ‘Home Office checks showed that the subject had been issued with visit visa on 30.05.01 expiring on 28.11.01…’.
(ii) A case note dated 23 January 2019 in which it is stated that ‘The applicant has remained here since his entry clearance expired and has made not attempts to regularise his leave’.
14. Ms Delbourgo accepted when asked that neither document refers to the appellant’s date of entry into the United Kingdom.
15. Ms Delbourgo submitted that had the judge considered the position as at the date of hearing, he would have found that the appellant had been in the United Kingdom for more than 20 years and that he had an entitlement to remain. Ms Delbourgo criticised the weight the judge gave to the fact that the appellant had been in the United Kingdom unlawfully, reiterating that his length of residence was a matter that should have counted in the appellant’s favour in the proportionality exercise.
The respondent’s submissions
16. Mr Parvar disputed that the appellant’s date of arrival in the United Kingdom or his length of residence were matters ‘not substantially in dispute’ as stated at paragraph 5 of the judge’s decision. He submitted that the claimed facts are wholly disputed, as is made clear in the refusal letter.
17. In respect of the judge’s findings, Mr Parvar submitted that it is clear that the judge found that the first clear evidence of the appellant’s presence in the United Kingdom is in 2006, and no earlier. On that basis Mr Parvar submitted that the appellant could not satisfy 20 years continuous residence as at the date of application or at the date of hearing.
18. Mr Parvar submitted that the reference at paragraph 11 of the judge’s decision to the application being taken ‘at its height’ is not a finding, it is contained in the judge’s explanation of the legal framework. Mr Parvar submitted that the 20 years continuous residence requirement must be satisfied at the date of application, and satisfaction at the date of hearing (which is not accepted) does not cure any failure to meet the requirement at the date of application.
19. In respect of the passages in the appellant’s Home Office records, Mr Parvar disputed that these are evidence of the respondent’s accepting the appellant’s claims. He submitted that they are merely a record of what was asserted by the appellant during contact with the Home Office.
20. Mr Parvar submitted that the burden is on the appellant to provide evidence of 20 years continuous residence, and that he failed to do so, even after being given an opportunity to supply further evidence prior to the decision.
21. Mr Parvar submitted that a lack of an explicit reference to the appellant’s length of residence in the proportionality assessment should not be taken as meaning that it was not considered. He submitted that relevant case law makes it clear that a judge should be assumed to have taken relevant matters into account even if not expressly mentioned.
22. Mr Parvar submitted that there is no rational basis on which the judge could have allowed the appeal, and he invited us to find that the judge did not make a material error of law.
Discussion
23. Paragraph 276ADE(1)(iii) of the Immigration Rules is relevant in this case. It provides:
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
…
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or (Emphasis added)
24. The judge was required to resolve the factual dispute of the appellant’s length of residence and it is contended by the appellant that the judge’s findings on this point are unclear.
25. We agree that the way that the first sentence of paragraph 5 of the judge’s decision is expressed is unfortunate:
The relevant circumstances not substantially disputed are that he arrived in the UK on a Visitor Visa, which expired 28/11/2001.
26. Although it is accepted that the appellant was issued with a visit visa, nowhere is it expressly accepted that he arrived in the United Kingdom using that visa. There is no acceptance that the appellant arrived in the United Kingdom on 18 July 2001 as claimed and the copy of the visa contained in the appellant’s bundle does not show that it was stamped on arrival as was the practice in 2001.
27. In any event, even if the first sentence of paragraph 5 suggests that the judge accepted that the appellant arrived in the United Kingdom in 2001, the paragraph goes on to state that the first supportive document of the appellant’s presence in the United Kingdom is in 2006. This is very clear. We note too, that paragraph 5 is an introductory paragraph and does not form part of the judge’s findings, which are set out from paragraph 13 onwards.
28. Ms Delbourgo criticised paragraph 13 of the judge’s decision for a lack of clarity. We disagree. The judge starts by noting the appellant’s assertion about his date of arrival and comments that this is supported by the fact that his date of entry was during the validity of entry clearance granted to him. The judge goes on to state:
However, he has not demonstrated any paperwork or other corroborative evidence confirming his arrival on that date. The best documentary evidence that has been produced is a Statement (sic) Access Report indicating a first contact with the Appellant in 2006 and thereafter, for periods. This is the first date that may be accepted as proof of his presence in the UK. I find that he has been able to demonstrate on the balance of probability that he has been in the UK from 2006, not earlier. (Emphasis added)
29. We find that this is a clear finding that the judge does not accept that the appellant has discharged the burden of proving that he has been continuously resident in the United Kingdom since 18 July 2001 as claimed. The judge finds that he has demonstrated his presence in the United Kingdom from 2006 and no earlier.
30. The judge considers the witness evidence, some of which he acknowledges places the appellant in the United Kingdom prior to 2006. It would have been more appropriate for the judge to have considered this evidence before making his finding in paragraph 14, so it is clear that he has taken it into account before reaching his conclusion. The judge gives that evidence little weight on the basis that the appellant did not tell the witnesses about his unlawful status in the United Kingdom. It is unclear why this would affect the weight the judge was prepared to give that evidence, because paragraph 276ADE(1)(iii) does not require lawful residence, it merely requires continuous residence.
31. We have considered the witness evidence and note that there is a single witness statement which refers to the appellant having arrived in the United Kingdom in 2001 (page 34 of the composite bundle). This witness does not comment on whether the appellant’s residence in the United Kingdom has been continuous.
32. In any event, even had the judge considered the evidence before making his finding in paragraph 13 and given it weight, it could not have made a difference to the position under the Rules. This is because it is clear, that to succeed under paragraph 276ADE(1)(iii) the appellant must have been able to show that he had been continuously resident in the United Kingdom for at least 20 years at the date of application. It was accepted in the First-tier Tribunal that the applicant could not satisfy that requirement because at the date of application, on his own evidence, he had only been in the United Kingdom for 19 years and 11 months. The judge was therefore correct to find at paragraph 15 that the appellant did not satisfy paragraph 276ADE(1)(iii).
33. Ms Delbourgo’s reliance on MM (Lebanon) is misplaced. MM (Lebanon) related to the kind of evidence that could be relied on to satisfy the eligibility requirements of the Rules, not the eligibility requirements themselves. It is not authority for the proposition that the tribunal can go behind the eligibility requirements of the Rules and it is well-established that there is no near miss principle.
34. Having found that the appellant did not satisfy the Rules, the judge was not required to consider whether the appellant might have satisfied them as at the date of hearing. What the judge was required to do having found that the Rules were not satisfied, was go on to consider the appellant’s case under article 8 outside the Rules, applying the findings of fact he had made in respect of the appellant’s residence and making findings in respect of any other relevant matters.
35. This is precisely what the judge did. From paragraphs 16 to 32 the judge considers factors relevant to the appellant’s article 8 claim. At paragraph 17 the judge expressly takes the appellant’s length of residence into account: ‘Having established a relatively long period of residence in the UK from 2006, less than 20 years…’. Ms Delbourgo submitted that the judge should have taken the appellant’s case at its highest, which appeared to be a submission that the judge should have accepted the appellant’s assertions about his date of arrival and residence in the United Kingdom. This submission, if that is what intended, is wholly misplaced. The judge was required to assess proportionality on the basis of the facts as he found them to be. Even if he had expressly considered whether the appellant might have satisfied the 20 years continuous residence requirement at the date of hearing, the judge would have found that he did not, given that the hearing took place in August 2024, and the earliest date the judge accepted the appellant was present in the United Kingdom was in 2006. Ms Delbourgo’s reliance on GM (Sri Lanka) does not assist. It is not disputed that the judge can and should consider the position as at the date of hearing. The judge did so.
36. Ms Delbourgo submitted that the judge placed too much weight on the fact that the appellant’s residence was unlawful. While it is true that this is not a relevant factor for assessing whether the appellant satisfied the Immigration Rules, it is most certainly a relevant factor in the proportionality assessment. Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) provides that the maintenance of effective immigration controls is in the public interest. The fact that the appellant had lived in the United Kingdom unlawfully for a lengthy period without seeking to regularise his stay was a factor to which the judge was entitled to give significant weight. In addition, sections 117B(4) and (5) of the 2002 Act provide that little weight is to be given to a private life established while the appellant was present in the United Kingdom unlawfully and while his status is precarious.
37. The appellant’s status has always been precarious and therefore the judge was required to give the appellant’s private life little weight.
38. At paragraph 33 the judge applies the law to the facts as he has found them to be. The judge explains which factors are in the appellant’s favour and which are against the appellant. The judge then gives reasons for finding that the public interest is not outweighed. The judge’s reasons and conclusions are sustainable on the evidence that was before him.
Notice of Decision
39. The judge’s decision does not contain any error of law.
40. The appeal is dismissed.

J K Swaney

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025