Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001200
First-tier Tribunal No: HU/59997/2023
LH/02632/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 October 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SHAJIB AHMED RIYADH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Maqsood, Counsel instructed by AWS Solicitors
For the Respondent: Ms Everett, Senior Presenting Officer

Heard at Field House on 23 July 2026

DECISION AND REASONS
1. The Appellant is a national of Bangladesh, born 1 August 1987. He appeals with permission against the decision of the First-tier Tribunal to dismiss his appeal on human rights grounds.
Case History and Background
2. The Appellant Mr Riyadh arrived in the UK on 14 February 2009 with leave to enter as a Tier 4 (General) Student Migrant and has been here ever since. As I shall set out below, subsequent to his arrival he made a series of applications in various categories, with the result that he has, to date, always held leave to remain in one capacity or another. He has therefore, on the face of it, accrued over ten years of continual lawful residence, and would ordinarily be entitled to a grant of indefinite leave to remain.
3. Ordinarily, that would be the case. The Secretary of State has however refused to grant him any further leave to remain on that, or any other basis, on ‘suitability’ grounds, in particular that he has previously relied upon fraudulent documents and/or representations in an application for leave to remain.
4. The Appellant denies that he did submit any such documents, or that if he did, he is not to blame.
5. That is the headline dispute between the parties. That is not however the issue before me. The question before me is whether there was an error of law in the decision of First-tier Tribunal Randall dated 4 October 2024, which related to another matter altogether.
6. In order to deal with this appeal, I am required to unpick the long and complex history of litigation surrounding the Appellant’s immigration status in the UK. That is best expressed in a chronology:
14.02.09 Appellant arrives in UK with leave to enter as a Tier 4 (General) Student Migrant
26.11.12 Appellant applies, in time, for further leave to remain as a Tier 1 (Entrepreneur)
01.03.13 That application is subsequently varied to be treated as an application for leave to remain under Tier 4
Further leave to remain granted under Tier 4
05.05.17 Appellant makes an in-time application for leave to remain as a partner under Appendix FM
17.4.18 The Appellant’s Appendix FM application refused on suitability grounds, the Respondent having alleged that the Appellant used a proxy in a past English language test
06.12.18 The appeal against the Appendix FM decision is allowed by First-tier Tribunal Chamberlain, who finds the allegation made in respect of the English language test unproven
04.01.19 Consequent to the decision of First-tier Tribunal Judge Chamberlain, the Appellant is granted leave to remain as a partner until 4 July 2021
15.04.19 The Appellant makes an application for settlement on the grounds that he has accrued ten years of lawful residence

24.06.21 The Appellant is refused settlement, the Respondent citing new suitability grounds, namely that false documents and/or representations had been submitted in support of the Appellant’s Tier 1 (Entrepreneur) application in 2012.
The Respondent did not curtail the Appellant’s existing leave to remain under Appendix FM
04.07.21 The Appellant’s leave under Appendix FM expires. On this day he makes an application for further leave to remain on Article 8/private life grounds. This included an assertion that he should be permitted to remain in the UK to pursue his appeal in the settlement case
15.06.22 First-tier Tribunal Judge Siddall dismisses the Appellant’s human rights appeal in the settlement case, finding the allegation of fraud/false representations to be made out
02.08.23 The Respondent refuses leave to remain on Article 8/private life grounds. The Appellant launches an appeal against that decision
01.10.23 Upper Tribunal Judge Gill dismisses the Appellant’s appeal against the decision of Judge Siddall in the settlement case
The Appellant seeks permission to appeal to the Court of Appeal against the decision of Judge Gill
15.05.24 Popplewell LJ refuses permission to appeal to the Court of Appeal against the decision of Judge Gill in the settlement case
24.08.24 The Appellants appeal, brought on Article 8/private life grounds, comes before First-tier Tribunal Randall
28.08.24 Judge Randall dismisses the Article 8/private life appeal. The Appellant seeks permission to appeal to the UT
11.03.25 The parties are notified of the decision of Popplewell LJ in the settlement case
08.04.25 Upper Tribunal Judge Kamara grants permission to appeal to the UT in the Article 8/private life case, at that stage unaware of the decision of Popplewell LJ
NB: It should be noted that at the material times, no one involved in the case was aware that Popplewell LJ had brought the settlement case to an end by his order dated 15 May 2024: it was not known to the parties when they appeared before Judge Randall, nor when permission was sought to appeal to the UT.
7. The grounds of appeal raise two discrete grounds of challenge to the decision of Judge Randall. At the hearing on the 23 July 2026 I heard submissions on these. I also heard some submissions on third issue, arising during the course of argument before me. This concerns Judge Randall’s decision to treat, as his Devaseelan starting point, the decision of Judge Siddall to the effect that the Respondent has proven his allegation of fraud/ false representation against the Appellant. The point raised by the parties was that the decision of Judge Siddall, and all those that followed, might in fact be nullities. Some investigation after the hearing established that this was indeed likely to be the case. If that was so, a third ground became available to the Appellant: to argue that the entire decision of Judge Randall is vitiated for his reliance on a decision void for nullity, with the result that his decision too would have to be set aside. On 27 July 2026 I invited the parties to consider this point and make further submissions in writing. I now have the written submissions of both parties, for which I am grateful, and it is there that I begin.
8. As will be observed from the chronology I have set out above, when the Appellant made his application for settlement, and when that application was refused on 24 June 2021, he still had extant leave, since his leave as a spouse under Appendix FM was valid until 4 July 2021. It was this feature of the evidence which led the parties to point out to me that the subsequent appeal brought by the Appellant on human rights grounds – and dismissed by Judge Siddall – might in fact be a nullity.
9. In Mujahid [2021] EWCA Civ 449 the Court of Appeal held that section 82 (1)(b) does not provide a right of appeal where an applicant still has leave to remain in the UK and so is entitled to stay here. At the hearing Mr Maqsood took me to the Respondent’s relevant guidance, ‘Rights of Appeal’:
Human rights application where the person has immigration leave
This section provides guidance on human rights claims where the person has permission to remain and is seeking leave of a different duration (an upgrade application). Previous versions of the guidance held that a person could have a right of appeal, in certain circumstances, where they still had permission to remain.
Following case law developments and a review that guidance is accepted as being wrong, except in the case of protection claims.
Section 113 of the Nationality, Immigration and Asylum Act 2002 defines a human rights claim as a claim that to remove a person from the UK would be unlawful under the Human Rights Act 1998. As it is not possible for a person who has extant permission to remain in the UK to be removed from the UK the position is that it is not possible for such a person to make a human rights claim. This position is consistent with the judgment of the Court of Appeal in the case of Mujahid 2021 EWCA Civ 449 and the Upper Tribunal in the case of Yerokum 2020 UKUT 377 (IAC)
This means if a person raises human rights and is refused, they will not have a right of appeal if they still have permission to enter or remain. This does not include people whose permission has only been extended by section 3C of the Immigration Act 1971 because such a person will have no permission to remain unless they appeal, and if their appeal is unsuccessful, they will be liable for removal.
10. Having raised this issue, neither party was however in a position to tell me what the Appellant’s status was at the point that he launched his appeal . If those proceedings were launched when he held leave conferred by s3C Immigration Act 1971, then as the passage above notes, this would have no impact on the validity of the subsequent judicial decisions. If however it was lodged when the Appellant still had valid leave to remain, and so was not liable to removal, this would mean that the decision of Judge Siddall, and the decisions of UTJ Gill and Popplewell LJ to uphold it, could all be a nullity. This would arguably mean that the decision of Judge Randall to treat Judge Siddall’s findings as his ‘starting point’ was an error.
11. Following the hearing, I checked the Tribunal’s records. These show that the appeal against the refusal to grant indefinite leave to remain was lodged on the 2nd July 2021, when the Appellant’s leave under Appendix FM was still valid. I therefore wrote to the parties inviting them to set out their respective positions in light of this information.
12. The Secretary of State, in written submissions received on 9 September 2026, does not appear to dispute that the decision of Judge Siddall should, applying Mujahid and her own guidance, be treated as a nullity. She submits, however, that this has not yet happened, and that until a judicial order has declared it to be so, the decision should be treated as extant and valid. In support of this proposition she relies on the decision in R (on the application of Majera) v Secretary of State for the Home Department [2021] UKSC 46, in particular §29-33. The Secretary of State submits that it is clear from Majera that even if a decision is legally defective, it will remain in effect, and an unlawful decision cannot be described as void independently of, or prior to, the court’s intervention. This interpretation accords with the Respondent’s own guidance to caseworkers, Implementing allowed appeals, which cautions decision makers:
“you cannot decide not to implement an allowed appeal because you think the Tribunal had no jurisdiction to allow the appeal. Any dispute about the Tribunal’s jurisdiction must be raised at the appeal or in an onward appeal. Where the jurisdiction of the Tribunal is not successfully challenged, the determination of the Tribunal will be valid and must be implemented”
13. Since the Appellant did not challenge the validity of the decision of Judge Siddall when he appeared before Judge Gill, nor in his application to the Court of Appeal, the decision of Judge Siddall continues, submits the Secretary of State, to have legal effect. In those circumstances there is no reason why Judge Randall should not have taken her findings as his Devaseelan starting point.
14. In his response, received on 18 September 2026, the Appellant submits that the Secretary of State has fundamentally misunderstood this situation:
“The Respondent's submission conflates three different propositions: the duty to obey an extant court order, the formal status of an order which has not been set aside, and the evidential status of the reasons and findings in later proceedings. R (Majera) v Secretary of State for the Home Department [2021] UKSC 46; [2022] AC 461 establishes the first proposition and may support the second. It does not establish the third.
The Appellant's primary position is that the purported merits determination by Judge [Siddall] was made without statutory appellate jurisdiction and could not supply an authoritative factual starting point in a later appeal. Alternatively, even if Judge [Siddall's] operative order of dismissal remained formally extant unless and until set aside, the findings in the reasons did not bind Judge Randall and should not have been accorded Devaseelan status”.
15. The Appellant points out that neither the ratio of Mujahid, nor its application to the Appellant’s appeal before Judge Siddall, are here controversial (for the reasons I rehearse above). As to the Secretary of State’s reliance on Majera, the Appellant submits that it is an authority that can be distinguished on the facts. Majera was not a case in which the First-tier Tribunal had lacked jurisdiction. The defect that was the subject of the appeal arose from the terms of a bail order. It was not in dispute that the First-tier Tribunal had the jurisdiction to generally impose bail conditions. Although the Supreme Court finds that an order made in excess of jurisdiction may still have to be obeyed pending proper challenge, it does not deal with the present situation in which there was no jurisdiction at all. The Appellant submits that the Upper Tribunal decision in Secretary of State for the Home Department v Yerokun (Refusal of claim; Mujahid) [2020] UKUT 377 (IAC) is of more assistance. Yerokun was, as its full title suggests, was an appeal found to be null and void for the reasons first explained by Mr Justice Lane, and subsequently upheld by the Court of Appeal in Mujahid. In his conclusion in that case Vice President Mr CMG Ockelton says the following:
“The First-tier Tribunal had no jurisdiction. For the avoidance of doubt, that also means that all the views, assessments and judgments expressed by Judge Buchanan about the evidence before him are of no effect and should not be the subject of any reference hereafter”.
Devaseelan and the Decision of Judge Siddall
16. Again, I am grateful to the parties for their submissions. It seems to me that there is significant common ground. Both agree that the Appellant did not have a right of appeal before Judge Siddall. The Secretary of State impliedly agrees that had someone brought the lack of jurisdiction to Judge Gill’s attention, that decision would have been declared a nullity. In those circumstances, as Judge Ockelton makes clear in Yerokun, all the views, assessments and judgments expressed by Judge Siddall would have no legal effect. It would follow that Judge Randall should not have treated them as his Devaseelan starting point. This would, I agree, have been an error so fundamental to his decision that it must be set aside for that reason alone.
17. The issue remains: did Judge Randall err in his reliance on a judgment that had not been declared a nullity, or otherwise set aside, at the date that he made his decision? The Secretary of State relies on Majera to say that absent a specific order setting the decision of Judge Siddall aside, Judge Randall was entitled – presumably, applying Devaseelan, obliged – to do so. I am afraid I do not agree.
18. The Devaseelan principles required Judge Randall to take as his starting point any material reasoning and findings made by an earlier Tribunal relating to the matter in hand before him. The principle does not relate to the order made by the earlier Tribunal, which is what concerned the Court in Majera, and indeed what concerns the Respondent in her guidance to caseworkers cited above. The passages of Majera which the Secretary of State cites (§29-33) are wholly concerned with an order which flowed from what turned out to be an unlawful administrative act. The authorities that inform the reasoning in Majera all arise from situations in which a court of competent jurisdiction erred in some way in the exercise of that function: see for instance the judgment of Moore-Bick LJ in R (Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700 at §22, cited at §53 of Majera. Here, it is agreed, Judge Siddall did not preside over a competent tribunal. There was simply no appeal before her. In those circumstances all the views, assessments and judgments expressed by Judge Siddall have no legal effect. It follows that Judge Randall erred in his application of the Devaseelan principles to her reasoning.
19. Even if I am wrong in that analysis, I would also point out that this is a Tribunal of competent jurisdiction, and I have found the decision of Judge Siddall to be a nullity. If the Secretary of State is correct in her analysis of Majera, that should answer her concerns.
20. I therefore set the decision of Judge Randall aside on the grounds that (unbeknownst to him) it was an error to treat the reasoning and findings of Judge Siddall as his starting point. That was an error which infected the entire decision, and it follows that I need not address the Appellant’s remaining grounds, since the decision falls to set aside on that basis alone.
Decisions
21. The decision of the First-tier Tribunal is set aside. The matter is remitted to the First-tier Tribunal to be heard de novo by a Judge other than Judge Randall or Judge Siddall, and in light of what is said above.
22. There is no order for anonymity.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber

7 October 2026