Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001752

First-tier Tribunal No: PA/59066/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 25

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

SHARNJIT SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr T Bahja, Counsel, instructed by Duncan Lewis Solicitors
For the respondent: Mr E Tufan, Senior Presenting Officer

Heard at Field House on 28 July 2025

DECISION AND REASONS

Introduction
1. The appellant, a citizen of India, appeals with permission against the decision of First-tier Tribunal Judge Row (“the judge”), promulgated on 24 February 2025, by which he dismissed the appellant’s appeal against the respondent’s refusal of protection and human rights claims.

2. The appellant made his protection and human rights claims on 19 December 2020, with the refusals of those claims being issued on 11 October 2023.

3. The appellant claimed to have entered the United Kingdom in April 2003 with a work visa following which he overstayed and has resided in this country continuously ever since. The respondent disputed the assertion of continuous residence, although it was accepted that he had been present ever since his arrest in 2018 for undertaking unlawful employment. The protection claim was based on the assertion that he would be at risk in India due to certain political activities on behalf of the Khalistan movement, which seeks independent Sikh homeland.

The judge’s decision
4. By the time his appeal came before the judge, the protection claim was no longer pursued: [5]. In addition, the appellant accepted that he could not satisfy the requirements of paragraph 276ADE(1)(iii) (the 20 years’ continuous residence provision applicable at the date of the claim; its successor, Appendix Private Life, was not brought into the Immigration Rules until 20 June 2022) because he had not accrued the requisite period as at the date of his application ( i.e. the human rights claim made on 19 December 2020): [7]. The appellant also accepted that there were no very significant obstacles to him re-integrating into Indian society: [11]. Thus, the narrow basis of the appellant’s case before the judge was that he had resided in the United Kingdom continuously since 2003 and that this was sufficient for him to succeed on Article 8 grounds: [9]-[10]. The respondent’s acceptance of continuous residence in this country since 2018 was noted: [18].

5. Four witnesses known to the appellant gave evidence in support of his case: [20]-[25]. The first claimed to have known the appellant in this country since 2004 and had kept in touch over the years, although he was unable to confirm continuous residence since 2005. The second was an uncle of the appellant and they had resided together between May 2003 and May 2011. The third was a relative of the appellant’s wife and had lived with the appellant between June 2011 and March 2015. The fourth, a friend, had lived with the appellant between April 2015 and February 2018. The judge took the view that three of those witnesses had provided evidence which potentially accounted for the appellant’s residence in the United Kingdom between 2003 and 2018. He noted that their evidence was “not independent”, but acknowledged that that was of itself not a basis to discount what they had said: [26]-[27]. Thereafter, the judge placed a significant emphasis on the absence of documentary evidence from either the appellant or his witnesses: [28]-[30]. At [36], the judge concluded that:

“It is for the appellant to establish 20 years continuous residence. I have heard what the witnesses have had to say. The absence of any documentation from them to confirm that he was living with them and the absence of any documentary evidence from him of his presence before 2018 leads me to the conclusion that he has not established his presence in the United Kingdom continuously before March 2018.”

6. The judge also took account of three other matters. First, the appellant had an 11-year old daughter who lived in India. The appellant asserted that his wife had become pregnant during a visit by her to the United Kingdom. The judge recorded that there was an alternative explanation, namely that the appellant had been in India at that time. The appellant could have provided his wife’s passport, but had failed to do so: [31]-[33]. Secondly, in response to a submission made on the appellant’s behalf that there was no record of him having left and re-entered the United Kingdom, the judge concluded that “informal” travel in and out of this country did “not seem to be a particular problem”: [34]. Thirdly, in response to the explanation that the absence of medical records prior to March 2018 was due to the fact that the appellant had not required medical attention, the judge concluded that an alternative view was that the appellant had not been in this country during that period: [35].

7. In light of the narrow basis of the appellant’s case, the appeal was accordingly dismissed on the basis that the claimed lengthy residence had not been proved: [37]-[38].

The grounds of appeal
8. The first ground of appeal asserts that the judge failed to make any findings on the credibility of the witnesses’ evidence. There was no indication that he had thought they were lying. In effect, the judge had seemingly rejected their evidence purely because of the absence of documentary evidence and such evidence was not a requirement. The second ground of appeal asserts that a number of findings were perverse because they either failed to take account of relevant evidence (in particular medical evidence relating to a significant brain injury suffered by the appellant in 2020), or they were based on impermissible speculation (specifically, the findings on where the child was conceived, the failure to have produced the wife’s passport, the ability for an individual to travel unlawfully in and out of this country, and the absence of medical records prior to 2018).

9. Permission was granted on all grounds.

Error of law decision
10. We remind ourselves of the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal. We appreciate that the judge read and heard evidence. In a case involving fact-sensitive issues such as the present, we would need to be clear that the judge had demonstrably committed an error of law before we would set his decision aside.

11. We heard submissions from the representatives. Mr Bahja relied on the grounds of appeal. Mr Tufan acknowledged that he had an “uphill struggle” to defend the judge’s decision, but no concession was made. He accepted that if the appellant could make out his first ground of appeal, the judge’s decision should be set aside.

12. Having risen to consider our decision, we announced to the parties our conclusion that the judge had materially erred in law in respect of the first ground of appeal and that was sufficient for his decision to be set aside. Our reasons for that conclusion are as follows:

13. The absence of documentary evidence for the period in question was a relevant factor in the judge’s overall assessment. Reliance by the appellant on MAH (Egypt) v SSHD [2023] EWCA Civ 216 was misplaced because that authority relates to protection cases.

14. The judge was nonetheless obliged to assess the evidence which was before him and to make clear findings on the truthfulness and/or reliability of that evidence. The judge acknowledged the fact that although the witnesses were not “independent” as such, that was not of itself a basis for discounting their evidence. In our view, the same was true in respect of the absence of documentary evidence.

15. With the above in mind, the repeated emphasis on the absence of documentary evidence and, most importantly, what the judge said at [36] satisfies us that: (a) the judge failed to make findings on the witnesses’ evidence; or (b) implicitly rejected that evidence purely because of the absence of documentary evidence and without explaining why that rendered their evidence untruthful or otherwise unreliable. There is nothing in the decision to suggest that the witnesses’ evidence was inherently improbable; indeed, it appeared to be consistent and directly on point in the context of the appellant’s narrowly-defined case.

16. On the basis of either (a) or (b), above, the judge demonstrably erred in law. The error was clearly material to the issue at hand. An acceptance of the witnesses’ evidence would have lent strong support to the claimed residence between 2003 and 2018.

17. There is no need for us to go on and consider the second ground of appeal. We only add the following. First, there was medical evidence before the judge indicating that the appellant suffered from memory problems following his accident in July 2020 (he had fallen off scaffolding). There is no indication that this evidence had been taken into account by the judge when assessing the appellant’s own evidence. In fact, there was no clear finding on what the appellant himself had said. Secondly, we pointed out to Mr Bahja that there was no need for the use of phrases such as “a masterpiece of speculation” when challenging aspects of a judge’s decision. Claimed errors of law can be articulated without recourse to flippancy or potentially discourteous remarks.

18. We set aside the judge’s decision.

The re-making decision
19. Having announced our error of law decision, we canvassed the views of the representatives in respect of whether to proceed immediately to re-making the decision in the appellant’s case.

20. Mr Bahja submitted that the witnesses’ evidence provided before the judge could properly stand unchallenged at this stage and that he had instructions for us to proceed without holding a resumed hearing. He asked us to admit new evidence under the rule 15(2A) application contained in the appellant’s bundle (this included the wife’s passport and a number of photographs).

21. On reflection, Mr Tufan confirmed that the witnesses’ evidence provided to the judge was not being contested by the respondent and there was no need for them to be called again at a resumed hearing. He was content to proceed to the re-making stage. He did not object to the admittance of the appellant’s new evidence and acknowledged that the wife’s passport indicated that it was plausible that the couple’s child had been conceived in the United Kingdom. He made an oral application for new evidence from the respondent to be admitted, namely a refusal of entry clearance as a visitor relating to an application made by the appellant’s wife and dated 28 June 2017.

22. Applications to admit new evidence should be made in advance of the hearing. We appreciate that it is relatively unusual for a decision in an appeal to be re-made immediately following an error of law decision (although the default position is that this should occur), but nonetheless rule 15(2A) applications can still be made by either party at an earlier stage than at the hearing itself. Having said that, Mr Bahja did not object to the new evidence and in all the circumstances we decided to admit it.

23. Having regard to the above, the overriding objective, and the importance of ensuring fairness to both parties, we concluded that it was appropriate to proceed with the re-making of the decision.

24. Mr Tufan submitted that the refusal of entry clearance decision suggested that the appellant had been in India in 2017. He reiterated his acceptance that the couple’s child might plausibly have been conceived in the United Kingdom. Although the witnesses’ evidence was not challenged, they were not independent of the appellant. There was no documentary evidence on the claimed residence between 2003 and 2018. Such evidence could reasonably have been produced. It was accepted that the individual shown in the photographs was in fact the appellant. There was no criminality on the appellant’s part and no other matters of misconduct were relied on. Overall, the continuous residence had not been proved. If it was proved, Mr Tufan accepted that it would be a significant factor in the appellant’s favour in the proportionality balancing exercise.

25. Mr Bahja submitted that the refusal of entry clearance decision did not assist the respondent’s case. The wife’s passport showed that she had been in the United Kingdom when the child was conceived. The photographs show the appellant in this country in 2012 and 2013. The witnesses’ evidence was strong. The appellant had proved his continuous residence in this country since 2003 and this should allow him to succeed in his appeal because if he made an application under Appendix Long Residence now, it would succeed.

26. We reserved our re-making decision.

Findings of fact on the re-making decision
27. Having considered the evidence in the round and on the balance of probabilities, we conclude that the appellant has proved that he has resided in the United Kingdom continuously since at least May 2003 to the present day, a period of 21 years and 2 months. This is based on the following.

28. We acknowledge and take account of the fact that there is no documentary evidence in respect of the period 2003 to 2018 (we shall consider the photographs, below). That is an evidential concern for us. The period of time is lengthy and, on the face of it, one might have thought that some form of documentary evidence from either the appellant or his witnesses would have been reasonably available for production.

29. Against that, we take account of the fact that individuals in the appellant’s position - unlawfully resident in the United Kingdom - will often find it difficult to obtain the sort of documentary evidence which one might ideally want to see, in particular relating to the initial period of residence: see, for example, R(oao Khan) v SSHD [2016] EWCA Civ 416, at [61].

30. We do not regard the absence of documentary evidence has been fatal to the truthfulness or reliability of the appellant’s own evidence, albeit we treated with appropriate caution.

31. Importantly, the witnesses’ evidence stands unchallenged. Having considered their evidence and the skeleton argument prepared for the First-tier Tribunal hearing for ourselves, we find that evidence to be both honest and reliable. There are no internal inconsistencies and it all fits together with the appellant’s evidence, bearing in mind the reliable medical evidence which shows that his ability to recall events has been significantly affected since the brain injury in July 2020. We find that the appellant uses a wheelchair and, following a stroke in September 2021, now struggles to communicate.

32. We accept that the wife’s passport shows that she was in the United Kingdom between December 2012 and the end of March 2013. As Mr Tufan recognised, that is consistent with the appellant’s daughter being conceived in the United Kingdom. In light of the evidence as a whole, we find that this was in fact the case.

33. In respect of the photographs, Mr Tufan very fairly accepted that the relevant individual shown was in fact the appellant (he had compared photographs against a photograph held on the respondent’s files). We find this to be the case. A number of the photographs showing the appellant are in the form of posts on social media platforms and are dated 2012 and 2013 and location marked “Gravesend”. We find that the dates accurately refer to the occasions on which the relevant photographs were taken in this country.

34. We find that the absence of medical records before 2018 does not significantly undermine the appellant’s case. It is plausible that he simply did not require any medical attention during the period in question.

35. The refusal of entry clearance to the appellant’s wife in 2017 does not undermine the appellant’s case. We do not have the application form which led to that refusal. Further, it is relevant that the entry clearance officer did not in fact accept the wife’s claim to have been supported by her husband, wherever he might have been. Indeed, there was doubt as to who the claimed husband was. All-told, this evidence is of little value.

36. The absence of evidence from the respondent concerning any departure and re-entry by the appellant during the period in question is of neutral value.

37. Having regard to the foregoing, we find that the appellant’s own evidence is truthful and reliable. It has in important respects been corroborated by other sources, in particular the evidence of the witnesses.

38. We find that the appellant has no criminal convictions and that he has not used false identities to obtain work, or suchlike. It is not entirely clear to us how the appellant is being supported, although he is not in receipt of public funds in the form of benefits. It is the case that the appellant has received NHS treatment since 2018.

39. As to the appellant’s ability to speak English, the evidence is not clear. There are references in the medical evidence indicating that he has on occasion used an interpreter, although it appears that was not always the case. On balance, and in light of our finding that he has been in this country for a very significant period of time, we are prepared to accept the does speak English to a reasonable level, albeit this is impaired as result of the 2021 stroke.

Conclusions on the re-making decision
40. Mr Tufan accepted that the appellant had established a private life in United Kingdom and we agree. It is right to say that there is not very much by way of detail as to this, but it is sufficiently clear that he has established social ties over the course of time. There is no dispute that the appellant’s removal from this country would constitute a sufficiently serious interference with the private life. The respondent’s decision is in accordance with the law and it pursues a legitimate aim.

41. We undertake the proportionality balancing exercise in order to discern whether the respondent’s decision strikes a fair balance between the rights of the appellant on the one hand and the public interest on the other.

42. We turn first to factors weighing in the respondent’s favour. The general public interest in maintaining effective immigration control is of itself an important consideration. Whilst the appellant arrived in this country on a lawful basis, he soon became an overstayer and has resided here unlawfully ever since (we would observe that it might appear somewhat at odds with the maintenance of immigration control for the respondent not to have undertaken greater efforts to remove the appellant from the United Kingdom sooner, bearing in mind that he became an overstayer in 2003 and has never used false identities).

43. It remains the case that the appellant could not have succeeded under what was paragraph 276ADE(1)(iii) of the Rules because of the time-fixed provision and the fact that he had not accrued 20 years’ continuous residence at the time of the application in December 2020. The inability to have met the Rule which applied at the date of the application is a relevant factor, but one which is significantly mitigated by the fact that the appellant can now meet the relevant Rule (as to which, see below).

44. The appellant has relied on NHS treatment over the course of time and this constitutes a recourse to public funds in a broader sense. Although an aspect of the treatment related to emergency care (in respect of the July 2020 accident), which is free of charge irrespective of immigration status. There has been more besides but since his asylum claim in December 2020, the appellant would fall within a group exempt from charge. This consideration weighs against the appellant, albeit not to a great extent.

45. We take account of section 117B(4) of Nationality, Immigration and Asylum Act 2002, as amended. The “little weight” provision does allow for a degree of flexibility in appropriate cases. We employ some flexibility in the present case because of the fact that the appellant can now satisfy the Rules.

46. The English language consideration under section 117B(2) of the 2002 Act is of neutral value.

47. The central consideration weighing on the appellant’s side of the scales is the fact that he has resided continuously in this country since May 2003 and that, although he is unable to satisfy paragraph 276ADE(1)(iii) (as was), if he made an application now it would, on our findings of fact, be certain to succeed under paragraph 5.1(a) of Appendix Private Life, which provides:

“PL5.1 Where the applicant is aged 18 or over on the date of application:
(a) the applicant must have been continuously resident in the UK for more than 20 years.”

48. That provision is subject to suitability grounds, but none have been raised by the respondent and in any event none would obviously apply.

49. The ability to satisfy the relevant provision of the Rules as they now stand is in effect determinative of the balancing exercise and is, we conclude, sufficient for the appellant to succeed in his appeal: in short, it outweighs the combined effect of all the considerations resting in the respondent’s side of the balance. In TZ (Pakistan) v SSHD [2018] EWCA Civ 1109, the Court of Appeal held that an ability to satisfy the Rules will be “positively determinative “of an individual’s Article 8 claim, provided that private and/or family life exists: [34]. The appellant in the present case can, as of now, satisfy the Rules, albeit that this was not the case in respect of the Rules as they were when he made his claim back in December 2020. In the first instance, it seems to us that there is no material difference between the two scenarios insofar as the importance of meeting the Rules is concerned.

50. In any event, the decision of the Upper Tribunal in OA and Others (human rights; ‘new matter’; s.120) Nigeria [2019] UKUT 65 (IAC) makes it clear that where an individual can demonstrate that they satisfy the relevant Rule as a result of the passage of time accruing after they made their original application and during the appellate process (in that case paragraph 276B), the appeal should be allowed on Article 8 grounds, subject to whether there are any outstanding public interest factors relied on by the respondent: [23]-[34]. In the present case, no such factors are in play.

51. Accordingly, we allow the appellant’s appeal on the basis that he now satisfies paragraph 5.1 of Appendix Private Life and, in all the circumstances, his removal from United Kingdom in furtherance of the respondent’s refusal of his human rights claim would be disproportionate and therefore a violation of Article 8.

Anonymity
52. Although an anonymity direction was initially made in the First-tier Tribunal as result of the protection claim, this was removed by the judge because the protection element of the appeal was no longer pursued. That remains the case and therefore we do not make an anonymity direction.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is allowed on Article 8 grounds only.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 31 July 2025