Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000215

First-tier Tribunal No: HU/57642/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

07th May 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

NAHEDUL ISLAM
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel instructed by Liberty Legal Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 1 May 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals against a decision by Judge Le Grys of the First-tier Tribunal (“FtT”), dated 8 November 2024, to allow an appeal by the Appellant against a decision by the Secretary of State for the Home Department (“SSHD”), dated 15 June 2023, to refuse a human rights claim.
Anonymity
2. We make no anonymity order because there is no feature of the case that outweighs the principle of open justice.
Background
3. The Appellant is a national of Bangladesh who is presently aged 37. He is said to have entered the United Kingdom on 26 October 2009 with entry clearance as a Tier 4 (General) Student until 28 October 2012. In 2012, his leave to enter as such was curtailed but was reinstated following his successful appeal. On 26 October 2012, he applied for his leave was varied to leave to remain as a Tier 4 Student, which was granted on 10 June 2013 until 19 October 2015. On 19 October 2015, he applied for leave to remain based on claimed family and private life in the UK. This was refused on 4 February 2017 with a right to appeal from outside of the UK only. On 9 March 2022, he applied for a waiver from paying fees for an application for leave to remain. A fee waiver was granted, and an application for leave to remain was then made, on 4 May 2022, based on the Appellant’s claimed private life in the UK, which was considered and refused by the SSHD as a human rights claim in the aforementioned 15 June 2023 decision.
4. The SSHD’s reasons for the 15 June 2023 decision to refuse the Appellant’s human rights claim included that his application fell for refusal on grounds of suitability in Section S-LTR of Appendix FM to the Immigration Rules. That was because it was the SSHD’s assertion that in his application dated 26 October 2012, the Appellant had submitted a certificate from Educational Testing Service (“ETS”) relating to a Test of English for International Communication (“TOEIC”) taken at London College of Media and Technology on 22 August 2012, the results of which had been withdrawn by ETS, and declared “Questionable” on the grounds that widespread test fraud was known to have occurred at the centre where the test was sat. Also, that he was asked by the Home Office to attend interviews on 25 May 2016 and 17 June 2016; however, he failed to attend and did not provide sufficient reasons why he was not able to attend. Consequently, the Appellant failed to meet the suitability requirements of SLTR.1.6 and S-LTR.1.7 of Appendix FM.
5. The relevant paragraphs of S-LTR in Appendix FM are as follows:
"S-LTR.1.1. The applicant will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR.1.2. to 1.7. apply.
[…]
S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
S-LTR.1.7. The applicant has failed without reasonable excuse to comply with a requirement to… (a) attend an interview…”
6. The SSHD also asserted that there would be no very significant obstacles to the Appellant’s integration into Bangladesh, the country to which he would have to go if required to leave the UK, and that refusal of his application would not result in unjustifiably harsh consequences such as to render refusal a breach of Article 8 of the European Convention on Human Rights (“ECHR”).
7. In a written Review dated 13 August 2024 following the provision of the Appellant’s evidence and skeleton argument for the appeal, the SSHD maintained the refusal of the Appellant’s human rights claim. The SSHD asserted in the Review that the Appellant had adduced no cogent evidence to demonstrate “to the lower standard of proof he has been a victim of ‘historic injustice.’”
8. The SSHD also noted in the Review that the Appellant asserted that he has a wife and son in the UK. The SSHD noted that no such persons had been mentioned in a witness statement by the Appellant dated 12 July 2022 and that his credibility was thus damaged and required testing at hearing. Also, that the Appellant had provided no cogent evidence that he was married, that his “wife” and child were settled in the UK, or that they could not return to Bangladesh as a family unit. The SSHD asserted that they had taken into account the best interests of the child in line with their duties under Section 55 of the Borders, Citizenship and Immigration Act 2009.
9. The Judge noted in the 8 November 2024 decision that Appellant disputed that his TOEIC test results were obtained dishonestly and stated that a refusal on that basis therefore amounted to a “historic injustice”. Also, that the Appellant asserted that he should now be put back in the position that he would have been in had this earlier finding of fraud not been made. In the alternative, he asserted that he has developed private life connections in the UK that meant the decision to refuse his claim was disproportionate.
10. The FtT recorded that the SSHD’s representative at the hearing had asserted that the Appellant’s claims regarding family life were a “new matter”, as defined in section 85 of the Nationality, Immigration and Asylum Act 2002, and that the representative stated that the SSHD declined their consent for the FtT to consider the matter. The Judge also recorded that the Appellant conceded that those claims were a new matter as so defined, but that the SSHD had implied their consent for the FtT to consider the matter by engaging with the claims in the Review. However, the Judge decided that consent could not be given implicitly in the manner described by the Appellant and therefore that the FtT was without jurisdiction to consider the matter.
11. The Judge went on to make a finding of fact that the SSHD had failed to discharge the burden of proving dishonesty by the Appellant in relation to the TOEIC test. However, the Judge also made a finding that it had been reasonable for the SSHD to refuse the Appellant’s 19 October 2015 application on the basis that fraud might have occurred in relation to the test, in the absence of any explanation by the Appellant for the “Questionable” test results in circumstances where he had failed to attend interviews on 25 May 2016 and 17 June 2016 in relation to the test results. The Judge also made a finding rejecting the Appellant’s explanation that he was prevented from appealing the 4 February 2017 decision, and finding that the more likely scenario was that he had no intention of appealing and intended to remain in hiding and that he was scared that he would be removed from the UK, which the Judge found was not a reasonable excuse for failing to attend the interviews. The Judge found that the Appellant had therefore not suffered any historic injustice, because he had unreasonably declined the opportunities afforded by the invitations to interview to explain the test results.
12. The Judge found that there would be no very significant obstacles to the Appellant’s integration into Bangladesh, and that refusal of his application would not breach Article 8 of the ECHR, having regard to the public interest considerations in section 117B of the Nationality, Immigration and Asylum Act 2002, and other relevant factors raised by the parties.
The appeal to the Upper Tribunal
13. The Appellant applied for permission to appeal to the Upper Tribunal, which was refused by the FtT but granted by Upper Tribunal Judge Kamara, in a decision dated 28 February 2025.
14. The Appellant’s grounds of appeal included that the FtT, having found that the SSHD had failed to discharge their burden of proving dishonesty by the Appellant in relation to the TOEIC test, materially erred in law in (i) failing to apply the relevant case law, (ii) failing to apply the SSHD’s guidance and (iii) in dismissing the appeal.. The case law referred to is Ahsan v SSHD (Rev1) [2017] EWCA Civ 2009 , Khan & Ors v SSHD [2018] EWCA Civ 1684, and Patel (historic injustice; NIAA Part 5A) India [2020] UKUT 351 (IAC). The SSHD’s guidance that is referred to is ‘Educational Testing Service (ETS): casework instructions’ Version 4.0, November 2020, which states that in the case of an individual who was refused leave for reasons including the use of the invalid TOEIC test where an appeal is dismissed on human rights grounds but a finding is made by the Tribunal that the appellant did not obtain the TOEIC certificate by deception, the Home Office will need to give effect to that finding by granting six months leave outside the rules to enable the appellant to make any application they want to make or to leave the UK.
15. The Appellant was granted permission to appeal to the Upper Tribunal by Upper Tribunal Judge Kamara, in a decision dated 28 February 2025, on the following grounds:
“2. It is arguable that the judge, in finding that the appellant did not use deception in an English language test, failed to provide adequate reasons for rejecting the submission that the appellant should have been returned to the position he would have been in had the allegation not been made, applying Ahsan [2017] EWCA Civ 2009.
3. The appellant will be required to address the materiality of any error in view of the judge’s findings at [27] that the appellant did not provide a reasonable excuse for his non-attendance at interview.”
The hearing
16. Mr Walker informed us that the SSHD conceded that, having found that the SSHD had failed to discharge their burden of proving dishonesty by the Appellant in relation to the TOEIC test, the FtT had materially erred in law by failing to provide adequate reasons for rejecting the submission that the Appellant should have been returned to the position he would have been in had the allegation of dishonesty relating to the TOEIC test had not been made. Mr Walker informed us that it was the SSHD’s position that the Appellant’s appeal against the 15 June 2023 decision to refuse a human rights claim should be remade by the Upper Tribunal, and that that appeal should be allowed on the basis that the decision breached the Appellant’s Article 8 ECHR rights by application of the ratios of the judgments in Ahsan and Khan, and in the light of the SSHD’s policy.
17. We declared that, for the reasons advanced by Mr Walker in making the aforementioned concessions by the SSHD, the Appellant’s appeal against the decision by the FtT would be allowed and that we remade the Appellant’s appeal against the 15 June 2023 decision to refuse a human rights claim such as to allow that appeal
Error of law
18. We find on the basis of Mr Walker’s concession that the FtT, having found that the SSHD had failed to discharge their burden of proving dishonesty by the Appellant in relation to the TOEIC test, materially erred in law by failing to provide adequate reasons for rejecting the submission that the Appellant should have been returned to the position he would have been in had the allegation of dishonesty relating to the TOEIC test had not been made.

Remaking the decision
19. We remake the decision on the Appellant’s appeal against the 15 June 2023 decision to refuse a human rights claim such that we allow the appeal on the basis that the decision breaches the Appellant’s Article 8 ECHR rights by application of the ratios of the judgments in Ahsan and Khan, and in the light of the SSHD’s policy, as was conceded by Mr Walker.

Notice of Decision
20. The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
21. We remake the decision on the Appellant’s appeal against the 15 June 2023 decision to refuse a human rights claim by the Appellant such that we allow that appeal on the grounds that the decision is unlawful under section 8 of the Human Rights Act 1998 because the decision breaches the Appellant’s rights under Article 8 of the ECHR.

T Lawrence
Judge Lawrence
Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

6 May 2025