Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001132

First-tier Tribunal No: HU/63975/2023
LH/04784/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SOFIANE KOUCIEM
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Duffy, Legal Representative (Farani Taylor Solicitors) For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 16 September 2025

DECISION AND REASONS
1. The Respondent is a citizen of Algeria. The Appellant in this case is the Secretary of State for the Home Department. To avoid confusion I will now refer to Mr Kouicem as the Appellant and the Secretary of State for the Home Department as the Respondent, which is how they were referred to in the First-Tier Tribunal (‘FtT’). The Appellant has appealed a decision dated 21 November 2023 which refused his claim for leave to remain based on his private life/his Article 8 ECHR rights.
2. The Appellant entered the United Kingdom on 25 December 2004 on a visit visa valid from 8 November 2004 until 8 May 2005.
3. On 10 September 2010 the Appellant was encountered by immigration officials and served with Notice ISI 501A.
4. The Appellant was granted a fee waiver pursuant to his application on 5 July 2022. On 19 July 2022, the appellant submitted an application on the basis of his private life in the United Kingdom. This was refused on 21 November 2023.
5. The Appellant appealed this decision. This appeal was heard by the FtT on 1 November 2024. The Judge allowed his appeal under Article 8 ECHR in a decision dated 22 January 2025.
6. The Respondent appealed the decision of the FtT on 29 January 2025. Permission to appeal was granted on 6 March 2025.
7. There was an error of law hearing on 1 May 2025 before Upper Tribunal Judge Lodato and Deputy Upper Tribunal Judge Solanki. In a decision dated 27 May 2025 it was found that there were material errors of law in the decision of the FtT. I will not repeat the reasons for that decision here as that decision is available to read and sets out the reasons at length.
8. At the hearing on 1 May 2025, there was a very late application made by Ms Ahmed (for the Respondent) to amend the grounds of appeal at the hearing to challenge the finding that the Appellant had been continuously resident in the UK since 25 December 2004. This application to amend grounds was refused on the basis that (i) the application was made a very late stage, during the hearing and in fact some way into submissions, (ii) contrary to the Respondent’s submission made at the hearing, it was not correct that it only became apparent in the error of law hearing that there would be reliance on the 20 year residence point as it is clear from the decision letter of the Respondent, as well as from the Appellant’s skeleton argument before the FtT (see §14), and from the judge’s decision that the Appellant's length of residence was always a significant issue in this appeal, and (iii) the FtT judge’s findings on this issue were in line with the Respondent’s decision letter and a fair reading of the same (the Respondent having been unrepresented and not having made any application to adjourn the hearing on this basis).
9. The Tribunal raised with the parties at the error of law hearing whether the Appellant’s 20 year residence was a new matter. The Respondent reserved her position on this. Accordingly, the Upper Tribunal set down directions for this appeal. These required
(a) the Respondent to set out within 14 days of the error of law decision being received, her position on whether (i) in her view the Appellant’s 20 year residence was a new matter (having regard to the decision in OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC), and if so (ii) whether she gave consent for the Appellant to rely on his 20 years residence in this appeal, having regard to her Rights of Appeal policy guidance, and (b) if the Respondent did not consent to the Appellant relying on the new matter, she was to set out her position on how the Upper Tribunal should approach the issue of the Appellant’s 20 years continuous residence.
10. The Respondent replied to the directions set by the Tribunal (out of time but with an application for an extension of time) on 4 July 2025. In her response it was accepted that the Appellant’s 20 years residence was a new matter in the appeal, she refused consent for the new matter to be considered under the Immigration Rules (namely the private life rules). However, the Respondent accepted that on the basis of the findings made by the FtT, that the Appellant had been continuously resident in the UK since 25 December 2004 (for 20 years), the decision to remove would not be proportionate and she proposed that the Upper Tribunal allow the Appellant’s appeal on human rights grounds (Article 8 ECHR) outside the rules.
11. Following the response from the Respondent, there was some disagreement between the parties on the issue of consent and on the terms of a consent order. Ultimately, the matter came before the Tribunal in a hearing on 16 September 2025.
12. At the hearing the parties confirmed that they were content for the appeal to be allowed under Article 8 ECHR on the basis of the concession made by the Respondent in her response to directions dated 4 July 2025. It is accepted by the Respondent that there is a finding in this case that the Appellant has resided here for 20 years, that his removal would not be proportionate and as such his appeal should be allowed under Article 8 ECHR.
Notice of Decision
13. The decision of First-tier Tribunal involved the making of an error of law and is set aside. I remake the decision, allowing the appeal on human rights grounds.

P. Solanki
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 October 2025

Annex – Error of Law Decision

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SOFIANE KOUICEM
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Duffy, Legal Representative (Farani Taylor Solicitors) For the Respondent: Ms Ahmed, Senior Presenting Officer

Heard at Field House on 1 May 2025

DECISION AND REASONS
1. The Respondent is a citizen of Algeria. His date of birth is 7 March 1979. The Appellant in this case is the Secretary of State for the Home Department.
2. To avoid confusion we will refer to Mr Kouicem as the Appellant and the Secretary of State for the Home Department as the Respondent, which is how they were referred to in the FtT.
3. The issue for us is whether First-Tier Tribunal (‘FtT’) Judge Chana (‘the Judge’) erred in law, in a decision dated 2 January 2025, when allowing the Appellant’s appeal against the decision of the Respondent to refuse his application on human rights grounds.
Background
4. The Appellant entered the United Kingdom on 25 December 2004 on a visit visa valid from 8 November 2004 until 8 May 2005.
5. On 10 September 2010 the Appellant was encountered by immigration officials and served with Notice ISI 501A.
6. The Appellant was granted a fee waiver pursuant to his application on 5 July 2022. On 19 July 2022, the appellant submitted an application on the basis of his private life in the United Kingdom. This was refused on 21 November 2023.
7. The Appellant appealed this decision. This appeal was heard by the FtT on 1 November 2024. The Judge allowed his appeal under Article 8 ECHR in a decision dated 22 January 2025.
First-Tier Tribunal Decision
8. In allowing the Appellant’s appeal the FtT made the following findings:
i. Paragraph 3 - The Appellant entered the UK on 25 December 2004. The respondent accepted that the Appellant has been continuously resident in the UK since he entered on 25 December 2004.
ii. Paragraph 4 - The Appellant was resident in Algeria until the age of 25, he spent his childhood and formative years there as well as a portion of his adult life. He came here as a visitor so could have had no expectation that he would remain here indefinitely. There are no very significant obstacles under Paragraph 276ADE to his integration into Algeria.
iii. Paragraph 6 - His 20 years residence would be completed by 25 December 2024, which was a few weeks after the hearing. He has built a substantial private life in this country.
iv. Paragraph 7 - His almost 20 years residence is relevant to exceptional circumstances.
v. Paragraph 9 – However, he does not meet the rules.
vi. Paragraph 10 - In assessing proportionality, what is taken into account is the length of time the Appellant has lived in the UK, his significant private life, the fact that he was encountered in 2010 and efforts were not made to remove him at that stage allowing him to build his private life and long residence, and the fact that he absconded and failed to report.
vii. Paragraph 11 - Section 117A(2) of the Nationality, Immigration and Asylum Act 2002 was taken into account. The maintenance of effective immigration control was in the public interest. The Respondent's interest in effective immigration control was compromised by the length of the Appellant’s stay without removal, despite him coming to the attention of the authorities in 2010. This public interest factor alone, in this case, was not sufficient to render removal proportionate.
viii. Paragraph 12 - The Appellant’s removal would breach his Article 8 rights.
Grounds of Appeal
9. The Respondent appealed the decision on 29 January 2025. We summarise the grounds of appeal as follows:

1) In conducting the proportionality balancing exercise, the judge failed to have full and proper regard to the public interest factors set out in section 117B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). In particular the judge failed to consider the Appellant’s ability to speak English, whether he was financially independent, and the fact that he had established his private life with unlawful immigration status; Dube (ss117A-117D) [2015] UKUT 00090.
2) The judge incorrectly reduced the weight of the public interest in maintaining effective immigration control. Whilst she said that she took into account the fact that the Appellant absconded and did not report, she also said that there was no action to remove the Appellant when he was encountered in 2010. This is erroneous, as it was the Appellant's actions and not the Respondent’s actions that resulted in enforcement action not being taken at an earlier point.
3) The judge also failed to attach adverse weight to the Appellant’s inability to satisfy the requirements of the immigration rules when assessing proportionality; Alam & Anor v SSHD [2023] EWCA Civ 30 at para.112.
Grant of Permission
10. In a decision dated 6 March 2025 the respondent was granted permission to appeal. The relevant part of the decision reads as follows:

2. The Respondent asserts that the FtT Judge has failed to correctly undertake the required proportionality exercise, when allowing the appeal on Article 8 grounds (outside the Rules).
3. Although the FtT Judge does make reference in places to some of the various factors which have been taken into account in the assessment of proportionality I am of the view that it is arguable that, taken as a whole, the proportionality assessment is inadequate and does not properly reference, acknowledge or balance all the relevant interests to be considered.
4. It is also arguable that the FtT Judge gave too much weight to the lack of action on the part of the Respondent to remove the Appellant given what appears to be the accepted fact that the Appellant actually absconded for some period at least.
5. In addition it is arguable that the reasons provided for the conclusion reached were inadequate.
6. Given the specific issue being considered in the case it is arguable that such errors (if established) are material.
7. Permission to appeal is therefore granted.
Submissions
11. The matter came before us in an error of law hearing on 1 May 2025.
12. We heard submissions from both representatives.
13. The documents before us and the parties included a 208 page bundle prepared for the hearing. This includes the documents which were before the FtT. At the start of the hearing, the parties advised us this bundle was in fact prepared by the Appellant’s solicitors to assist us as the Respondent had failed to prepare a bundle (this being her appeal). We are grateful to the Appellant’s solicitors for doing this, had this not been done this would have created real difficulties.

Findings and Reasons
14. We take each ground in turn.
Ground One
15. S.117B of the 2002 Act reads as follows:

Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
16. Dube (ss.117A-117D) [2015] UKUT 90 (IAC) held as follows:

(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.
(b) these provisions are only expressed as being binding on a “court or tribunal”.
It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “In considering the public interest question, the court or tribunal must (in particular) have regard— “.
(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar[2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.
17. We agree with the submission made that the judge failed to have full and proper regard to s.117B of the 2002 Act. Whilst Mr Duffy referred to paragraph 11 of the decision and said the judge reminded herself of s.117A(2) of the 2002 Act, this is not sufficient. As paragraph 15 set out above shows, there are a number of considerations that judges must have regard to. The factors set out at s.117B(2) (3) (4) (5) were not considered by the judge. This is not a case where the judge has failed to refer to the provisions but has in fact in substance considered the issues. This is a case where nothing in the decision actually demonstrates consideration of the relevant factors. This is a material error of law.
Ground Two
18. We also agree that the judge has erred in her approach to the weight to be attached to the maintenance of effective immigration control. Whilst the Judge says that she has taken into account the fact that the Appellant absconded in 2010, she also says that the Respondent took no action to remove the Appellant in 2010. On the basis of the failure to remove the Appellant, she attached less weight to the maintenance of effective immigration control. It is difficult to understand this conclusion. The decision in this regard lacks adequate reasons in this regard. As per R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 (‘R (Iran) & Ors’) at para.9(ii) this is a material error.
19. To the extent that the decision appeared to attach responsibility to the Respondent for the Appellant’s independent decision to remain in the UK without lawful leave to do so, this was misconceived and irrational on these facts.
Ground Three
20. Finally, we also agree with the submission made that the Judge failed to attach appropriate weight to the Appellant’s inability to satisfy the requirements of the immigration rules when assessing proportionality. We refer to Alam & Anor v SSHD [2023] EWCA Civ 30 at para.112 where the Court of Appeal held that the fact that the Appellant’s application could not succeed under the rules was a factor to which the court must give great weight in the Article 8 ECHR exercise.
Application to Amend Grounds of Appeal
21. In his submissions before us, Mr Duffy relied upon the fact that the Appellant now had acquired 20 years continuous residence. We asked the parties if this was a new matter. Ms Ahmed reserved her position on this. However, she then said that it was not accepted that the Appellant had resided here for 20 years continuously. She said that at the date of the decision made by the Respondent, 20 years long residence was not a live issue.
22. We referred Ms Ahmed to the Respondent’s decision letter dated 21 November 2023. This said:

“From the information you have provided, it is noted that you are a national of Algeria and you entered the UK on 25 December 2004.
You have therefore lived in the UK for 17 years and it is not accepted you have lived continuously in the UK for at least 20 years.”
23. We also referred Ms Ahmed to the findings of the judge, in particular the following aspects of the decision:

“3. The respondent stated that the appellant entered the United Kingdom on 25 December 2004 and therefore has not demonstrated that he has lived continuously in the United Kingdom for 20 years. The respondent accepts that the appellant has been continuously resident in the United Kingdom, since he entered the united Kingdom on 25 December 2004.
6. …I have taken into account that the appellant’s 20 years residence which would be completed by 25 December 2024, a few weeks after the hearing.”
24. We highlighted that the grounds of appeal did not challenge the findings that the Appellant had been continuously resident in the UK since 25 December 2004. Ms Ahmed, at that stage, made an application in the hearing to amend the grounds of appeal. This was on the basis that it only became apparent during the hearing that there would be reliance on the 20 year residence point.
25. We refuse Ms Ahmed’s application to amend the grounds. This is on the basis that (i) the application was made a very late stage, during the hearing and in fact some way into submissions, (ii) we disagree with the argument made that it only became apparent in the hearing that there would be reliance on the 20 year residence point as it is clear from the decision letter of the Respondent, as well as from the Appellant’s skeleton argument before the FtT (see §14), and from the judge’s decision that the Appellant's length of residence was always a significant issue in this appeal, and (iii) we consider the judge’s findings on this issue were in line with the decision letter and a fair reading of the same (the respondent having been unrepresented and it seems not having made any application to adjourn the hearing on this basis).
26. In coming to the conclusions above, we have regard to the recent decision of this Tribunal in Rai & Anor v Secretary of State for the Home Department (Grounds of Appeal - Limited Grant of Permission) [2025] UKUT 150 (IAC), which held:

4. The Upper Tribunal is likely to take robust decisions and not permit grounds to be advanced if they have not been properly identified and pleaded, or where permission has not been granted to raise them.
Notice of Decision / Remaking and Disposal
27. For the aforementioned reasons, we find that there are material errors of law in this decision of the FtT. The decision is set aside.
28. The parties submitted that the hearing could remain in the Upper Tribunal if an error of law was found. We agree with this having regard to 7.1-7.3 of the Practice Statement of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal.
29. As we have explained above, we asked the parties whether the Appellant now meeting the 20 year rule was a new matter. Ms Ahmed reserved her position on behalf of the Respondent.
30. We accordingly issue the following directions:

1) Within 14 days of this decision being received, the respondent is to set out her position on whether (i) in her view the Appellant’s 20 year residence is a new matter (having regard to the decision in OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC), and if so (ii) whether she gives consent for the appellant to rely on his 20 years residence in this appeal, having regard to her Rights of Appeal policy guidance.
2) If the Respondent does not consent to the Appellant relying on the new matter, she is to set out her position on how the upper tribunal should approach the issue of the Appellant’s 20 years continuous residence.
3) The Appellant has permission to serve any further evidence and any skeleton argument that he wishes to rely upon within 14 days of receipt of the Respondent’s submissions.
4) The matter is to be listed for three hours.
5) An Algerian interpreter will be required.

P. Solanki
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025