Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000637

First-tier Tribunal Nos: HU/51848/2024
LH/07488/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS
UPPER TRIBUNAL JUDGE BULPITT

Between

Entry Clearance Officer
Appellant
and

Jahidur Rahman Nurul Haque
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S McKenzie, Home Office Presenting Officer
For the Respondent: Mr M Hasan, (Solicitor) Jalalabad Law

Heard at Field House on 9 April 2025

DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge Gordon-Lennox, dated 17 December 2024, allowing an appeal on human rights grounds against a decision to refuse entry clearance as a spouse.
2. Although before us the appellant is the Entry Clearance Officer and Mr Jahidur Nurul Haque is the respondent, for the sake of consistency with the proceedings before the First-tier Tribunal we shall hereafter refer to the Entry Clearance Officer as the Respondent and Mr Haque as the Appellant.
3. The Appellant is a citizen of Bangladesh born on 5 February 1979. On 24 June 2002 he entered the United Kingdom illegally, making use of a false British passport. He remained unlawfully until 20 May 2012, when, facing removal action, he made a voluntary departure.
4. During his time in the United Kingdom the Appellant worked illegally.
5. In June 2007 he made an application for leave to remain based on Article 8. The application was refused and the subsequent appeal dismissed. Notwithstanding the clear indication inherent in the decision that he had no basis to remain in the United Kingdom, he continued to stay here unlawfully, and indeed was recorded as an absconder in June 2008. In April 2012 he was arrested: it was shortly after that that he agreed to depart voluntarily.
6. On 11 October 2016, the Appellant married Ms Lovely Begum (date of birth 10 June 1988). At the time Ms Begum was a Bangladesh national. She had, however, been granted indefinite leave to remain in the United Kingdom on 18 October 2010 having entered as the spouse of her first husband, from whom she was later divorced on 7 April 2015. Ms Begum has since, on 11 October 2024, become a British citizen.
7. On 12 July 2017 the Appellant made an application for entry clearance as the spouse of Ms Begum. The application was refused for reasons set out in a decision letter dated 13 October 2017. The application was refused under the Immigration Rules with reference to paragraph 320(11) as then in force. In this context the decision letter states:
“You have stated on your visa application form that you have previously been in the U.K. 24/06/02 to 24/05/12 for tourism. You also stated that you made an application to the Home Office under Human Rights on 04/06/07. You also stated on the visa application form that you have not been required to leave any country, including the U.K. in the last 10 years.
However Home Office checks reveal that you clandestinely entered the U.K. in 2002. You did not make yourself know to U.K. authorities until 2007 when you made an application to the Home Office for Leave to Remain under Human Rights. This application was refused on 26/09/07. You were then served with IS151A on 12/10/07 as an illegal entrant to the U.K. and you were reported to the Police Authorities as an Absconder.
You then remained undetected by U.K. authorities until an Immigration Enforcement raid was carried out on the Sutton Tandoori in Ely on 11/04/12. During that raid you were found to be working at the premises illegally as you had no permission to work in the U.K. It was also confirmed that you had been an absconder and you admitted having entered the U.K. illegally 10 years prior to that. You were arrested and detained.
During that raid you provided your name as Md Nurul HAQUE 05/02/75 and your biometric fingerscans were taken. You were served with Removal Directions to leave the U.K. which you appealed. The appeal was dismissed and an Emergency Travel Document was obtained. You then requested to make a voluntary departure and you were removed from the U.K. on 20/05/12.
Given the above, I am satisfied that you have previously contrived in a significant way to frustrate the intentions of the Rules by entering the U.K. illegally, absconding, avoiding detection by U.K. authorities over an extended period and working illegally in the U.K. and there are other aggravating circumstances, such as making a frivolous application to the Home Office.
I therefore refuse your application under 320(11) of the Immigration Rules.”
8. The application was also refused with reference to those parts of Appendix FM of the Immigration Rules that relate to entry clearance as a partner. The refusal in this regard included the requirements of ‘Suitability’. The decision letter states in part:
“In your application, you failed to disclose the following facts that you had previously been known as Mohammed Nurul Haque. You provided this name to Immigration authorities and this name was matched to you by biometric fingerscans held by the Home Office. I am satisfied that these facts were material to the application.
You stated in this application that you have never been known by any other name. I am satisfied that this statement is false, based on Biometric Fingerscan results.”
9. There were yet further problems with the application: supporting evidence of Ms Begum’s divorce had not been provided; and the financial requirements of the Rules were not shown to have been met.
10. There was no appeal against the decision of 13 October 2017.
11. On 24 November 2023 the Appellant made a further application for entry clearance as the spouse of Ms Begum by completing an online application form. It is the refusal of this application on 29 January 2024 that is the foundation of these proceedings.
12. The application was supported by, amongst other things, a letter of representations dated 1 December 2023 from the Appellant’s current representatives. This letter is frank in rehearsing the Appellant’s immigration history between 2002 and 2012.
13. In respect of the unsuccessful application made in 2017, the letter does little more than record the fact of the application and its refusal. No attempt is made to address the basis of the refusal. Specifically, nothing is offered by way of explanation for the apparent failure to disclose the Appellant’s immigration history. In particular, there is no suggestion that the Appellant and Ms Begum had been either ill-advised in this context, or otherwise let down in any respect by their representatives in 2017 not following their instructions.
14. The Respondent’s decision letter of 29 January 2024 again holds against the Appellant his immigration history between 2002 and 2012, but also invokes the conduct of the 2017 application. The letter states in part in respect of the requirements of ‘Suitability’ under Appendix FM:
“Under paragraph EC-P.1.1.(c), your application falls for refusal on grounds of suitability under Section S-EC of Appendix FM because Home Office Records held in the UK confirm the following:
• You entered UK without leave in 2002
• You made an application for leave to remain in country on the basis of Article 8 in June 2007, this was refused in September 2007
• You made an appeal against this decision and this was dismissed in January 2008

• You were found to be in the possession of a false British passport in 2012
• You were arrested in 2012 when you were found to have entered the UK without valid leave and also found to be working illegally in the UK. You were served with relevant papers at this time.
• You were interviewed 13/04/2012 and admitted to entering the UK using the fake British Passport as well as using a false identity. At interview your confirmed name was listed as: Md Nurul Haque.
• We agreed to a voluntary departure and you left the UK 20/05/2012 – it is confirmed that you left the UK at your own expense
• You made an application from outside of the UK for leave to enter as a spouse on 26/07/2017
• This was refused 13/10/2017 – in your application you failed to declare any of your travel history within the UK as well as failing to declare your previous names or aliases. Your application was refused under suitability grounds.”
15. This led to the following conclusions by the Respondent:
“In light of all of the above I am satisfied that you have previously contrived in a significant way to frustrate the intentions of the Immigration Rules by (i) entering the UK without valid leave, (ii) Using false documents to secure entry to the UK, (iii) making an application for leave to remain in the UK on the basis of Article 8 Human Rights – you failed to provide evidence and information regarding the basis of your application (iv) found to be illegally working in the UK which lead to your arrest, (v) declaring multiple identities at interview one of which you used to enter the UK without leave, (vi) declaring multiple versions of your method of entry to the UK in order to obscure your use of a false British passport (vii) You failed to declare multiple breaches of immigration law and failed to declare previous identities when making an application for leave to enter the UK on the basis of your relationship with your sponsor.”
16. The refusal letter went on to identify that there were additional aggravating factors including in respect of the failure to declare multiple identities and immigration breaches on a previous application for leave to enter - which in context must be a reference to the 2017 application. In addition to determining that the Appellant’s conduct was such as to amount to contriving in a significant way to frustrate the intentions of the Rules, it was also determined with reference to paragraph S-EC.1.5 of Appendix FM that the Appellant’s exclusion from the UK was conducive to the public good because of his past conduct.
17. The Respondent however otherwise expressed herself as satisfied in respect of the ‘Eligibility relationship’, ‘Eligibility financial’, and ‘Eligibility English language’ requirements of the Rules.
18. The Appellant appealed to the IAC.
19. In a witness statement dated 15 May 2024, Ms Begum made the following comments in respect of the 2017 application:
“My husband applied for an entry clearance on 12th July 2017 with the intention to join me here permanently. The ECO did not conduct an interview and the whole application was considered on the papers only. Subsequently his application was refused on 13th October 2017. We did not go for appeal against that decision because our previous lawyer made lots of mistakes on behalf of my husband.”
20. The Appellant’s own witness statement, dated 16 May 2024, is silent on the 2017 application.
21. For completeness we note that the Respondent’s Review of 3 July 2024 continued to rely on the Appellant’s conduct both in respect of his illegal presence in the UK between 2002 and 2012 and his “failure to declare multiple identities and immigration breaches on the previous application for leave to enter the UK” (Respondent’s Review at paragraph 8).
22. The appeal hearing took place on 4 December 2024. Necessarily the Appellant was not in attendance. He was represented by Mr Hasan, who had also attended before us today. Ms Begum attended the hearing and gave oral evidence. There was no representation on behalf of the Respondent.
23. The appeal was allowed for the reasons set out in the decision of the First-tier Tribunal dated 17 December 2024. At paragraph 22 the Judge found that the Appellant had previously breached immigration laws and behaved in a way that engaged paragraph 9.8.2 of the current Immigration Rules. Paragraph 9.8.2(c) is in these terms:
“the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding’”.
24. The Judge then stated “However in my view this amounts to historic behaviour that culminated in the Appellant voluntarily leaving the UK in or around May 2012, which was over 12 years ago” (paragraph 22).
25. In respect of the 2017 application, the Judge said this, apparently making reference to the oral evidence of Ms Begum because much of what follows is not to be found in her witness statement:
“18. Following their marriage in 11 October 2016 the Appellant applied for entry clearance to join the Sponsor in the UK. The Sponsor said that they both helped prepare the paperwork and instructed solicitors to apply and that they told the solicitors everything about the Appellant’s immigration history. The Sponsor says that the solicitor simply didn’t provide the information. Crucially, the Sponsor says that the Appellant did not seek to conceal his immigration history. The Sponsor said she didn’t make a complaint against the solicitor because she didn’t have anyone to help her. I accept this evidence.
19. I am persuaded that this is likely to be right because the Appellant has a large amount of experience with UK immigration including that he was finger-printed prior to his departure. Therefore, there would have been little point in seeking to hide this information because it was obvious that it would become known and considered as part of the application, which indeed turned out to be the case. Further, if the Appellant had deliberately concealed it then he would run the real risk of being discovered on entry with all the consequent difficulties that would entail. In my view it is therefore unlikely that he would have sought to conceal this information. On balance, I consider that the Appellant did not seek to conceal this information from the Respondent at the point of application.”
26. This analysis was taken forward to paragraph 23:
“23. The Appellant then applies to join the Sponsor in the UK in 2017 following their marriage in October 2016. It is clear that the application did not detail his immigration history as it should have done. However, I have found that this was not through the fault of the Appellant, but rather through his solicitors who were told the information but didn’t provide it as part of the application process. It would not therefore be reasonable to hold the failings of the Appellant’s solicitor against him.”
27. That this analysis had a material impact on the overall decision is inescapable as a matter of logic. Such considerations as credit for voluntarily departing the UK, making allowance for the antiquity of the Appellant’s poor immigration conduct, and accepting his embarrassment and contrition, would be undermined if it were the case that he attempted to conceal his history in 2017. Be that as it may, the materiality is made overt at paragraph 25, which in part states:
“25. … on the basis that I have found that the Appellant did not deliberately seek to hide his immigration history in his 2017 application rather it was the fault of his solicitor, that he is embarrassed by his history and apologetic in relation to it and that some 12 years has elapsed since the previous breaches came to an end, I consider that it was not appropriate to refuse the application on the basis of paragraph 9.8.2 and S-EC.1.5 of Appendix FM.”
28. It may be seen that the finding that the Appellant did not deliberately seek to hide his immigration history in 2017 was one of three elements that informed the overall conclusion on paragraph 9.8.2 and S-EC.1.5 - which in substance was favourably determinative of the appeal in circumstances where the Respondent had accepted all other requirements of the Rules were met.
29. The Respondent challenges the decision of the First-tier Tribunal. Permission to appeal has been granted with particular reference to the Judge’s approach to the application of 2017 and the Judge’s apparent failure to have regard to the guidance in BT (Former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311.
30. We have concluded that there is substance in the challenge.
31. The substance of Ms Begum’s evidence before the First-tier Tribunal as recorded at paragraph 18 of the Decision, and as emphasised at paragraph 23 quoted above, was that the representatives assisting in preparing the 2017 application were at fault in not detailing the Appellant’s immigration history. Although this was presented as “the solicitor simply didn’t provide the information” to the Entry Clearance Office (paragraph 18), in reality the fault went further than that. This was not mere omission, but - as identified by the Respondent - involved actual overt misrepresentation, for example denying the past use of a different identity.
32. BT (Nepal) offers the following guidance. The headnote states this:
“If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response.”
That headnote is informed by what is said at paragraph 5 of the body of the decision which is in these terms:
“We wish to make it clear that, in general, we will not make a finding of fact based on an allegation against former representatives unless, first, it is clear that the former representatives have been given an opportunity to respond to the allegation which is being made expressly or implicitly against them, and secondly, we are either shown the response or shown correspondence which indicates that there has been no response.”
33. We pause to observe that there appears to be a slight tension between the wording at paragraph 5 of the body of the decision and the wording of the headnote. Paragraph 5, in using the term “in general” suggests a presumptive approach. The headnote itself is more prescriptive, using the term “there must be”. It is our understanding that the wording of the headnote is a product of the reporting committee, and as such is not formally part of the Tribunal Judge’s (or Tribunal Panel’s) decision. On that basis we adopt the approach that the true guidance to be taken from this case is as set out in the body of the decision rather than in the headnote. Be that as it may, in our judgment this makes no material difference for the present purposes.
34. In our judgment the issue of the conduct of the 2017 application was a core consideration in this appeal. This was accordingly a matter in which the guidance in BT (Nepal) should have been referenced, and insofar as the recommended general approach might not have been followed, a clear explanation of why that was the case required to be set out.
35. The closest the Judge comes to addressing the issue is at the end of paragraph 18 - “The Sponsor said she didn’t make a complaint against the solicitor because she didn’t have anyone to help her.”
36. However, even if it were to be accepted that Ms Begum and the Appellant did not know how to complain against, or otherwise seek redress from, their representative following the refusal of the application in 2017, it cannot be said that they were without assistance in preparing their challenge to the Respondent’s decision of 29 January 2024. Insofar as the Appellant and Ms Begum sought to put the blame on their 2017 advisors for the false statements made on the face of the 2017 application, there was nothing before the First-tier Tribunal to suggest that in the context of the current proceedings any attempt was made to give the former representatives an opportunity to respond to the allegation against them. Any failure to raise the matter with the former representatives cannot, in the context of the current proceedings, be attributed to a lack of help, given that the Appellant has been represented throughout the process from application through to appeal.
37. We find that on the facts here, where the conduct of the 2017 application was so significant to the issues in the appeal, it was incumbent upon the Appellant to raise the allegation against his previous representatives made by Ms Begum during the course of the hearing with those previous representatives. In turn, it was incumbent upon the Judge to identify that this had not been done and factor that into the overall analysis.
38. We have considered whether the findings at paragraphs 18 and 19 of the Decision are sufficient to protect the Decision against the criticism based on a failure to refer to the guidance in BT (Nepal). Whist such findings are, in isolation, adequately reasoned, the very real difficulty is that they are premised on an exercise that was devoid of the safeguard that the guidance in BT provides.
39. In all such circumstances we conclude that the Entry Clearance Officer’s challenge to the decision of the First-tier Tribunal based on a failure to have proper regard to the guidance in BT (Nepal) succeeds.
40. The nature of the error of law is such that it is common ground that the setting aside of the decision will require the decision in the appeal to be remade before the First-tier Tribunal with all issues at large. We do not issue any specific Directions - although the Appellant will now be alert to the expectation that there be some communication with the previous representatives in order to put the allegation made against them to them, and any relevant correspondence be presented at the continued appeal. Otherwise, any further Directions will be a matter essentially for the First-tier Tribunal.
Notice of Decision
41. The Decision of the First-tier Tribunal contained a material error of law and is set aside.
42. The decision in the appeal is to be remade before the First-tier Tribunal by any judge other than First-tier Tribunal Judge Gordon-Lennox, with all issues at large.

(The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing.)

I. Lewis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 May 2025