Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001789

First-tier Tribunal No: HU/61976/2023
LH/05309/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of June 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

Ismail Hakki Yildrim
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms D Revill, of counsel instructed by York Solicitors
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 19 June 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Abebrese (“the judge”) promulgated on 19 October 2024 dismissing his appeal against the respondent’s decision dated 25 September 2023 refusing his application for leave to remain as a partner.
Background
2. The appellant is a citizen of Turkey who entered the UK illegally in February 2015 when aged 14 years old. He claimed asylum a month later. That application was refused by the respondent on 5 October 2015 and the appellant’s subsequent appeal was dismissed on 19 April 2016.
3. The appellant remained in the country and began living with his partner (“the sponsor”) in February 2022. In August 2022, he applied for leave to remain as the unmarried partner of a British national. That application was refused under the Immigration Rules (“the Rules”) on 25 September 2023 including on the basis that (i) the appellant did not meet the immigration status requirement because he was in the UK without leave; and (ii) the appellant’s sponsor did not meet the definition of a “partner” under para GEN.1.2. of Appendix FM to the Rules because they were not married or in a civil partnership and had not been living together in a relationship akin to marriage for at least two years prior to the application. Neither did the respondent accept that there were exceptional circumstances to the appellant’s case to warrant a grant of leave outside of the Rules.
The appeal to the First-tier Tribunal
4. The appellant’s appeal against the decision of 25 September 2023 came before the First-tier Tribunal on 29 August 2024. The issues to be decided by the judge were:
(1) Whether the appellant’s removal from the UK would breach his right to a family and private life under Article 8 of the European Convention on Human Rights.
(2) Whether the appellant’s removal would have unjustifiably harsh consequences for him and his sponsor contrary to Article 8.
(3) Whether there were any very significant obstacles to the appellant’s reintegration in Turkey.
5. Furthermore, while the appellant accepted that his sponsor did not meet the definition of “partner” under para GEN.1.2. at the date of decision, he submitted that the definition had since been changed and, on the date of the hearing, Appendix FM no longer required the appellant and his sponsor to have cohabited for two years prior the making of the application.
6. In his decision dismissing the appeal, the judge found at [10] that the appellant did not meet the requirements of the Rules because he and his sponsor had not lived together for two years prior to making the application and there were no insurmountable obstacles to the couple continuing their family life in Turkey. The judge also found at [12] that the appellant had entered the UK illegally, which was “a blatant abuse of the system”, and the decision to refuse his application for leave to remain was “a proportionate response”. In the same paragraph, the judge accepted that the sponsor had a close relationship with her brother, who suffers from a rare medical condition, but the judge did not accept that the sponsor was the only person who cared for him. Furthermore, at [14] the judge found that the appellant could go back to Turkey and apply to return to the UK lawfully.
The appeal to the Upper Tribunal
7. On 22 April 2025, First-tier Tribunal Judge J Dixon granted the appellant permission to appeal on the following grounds:
(1) The judge had failed to consider the definition of “partner” in para GEN.1.2. as in force at the date of the hearing and had instead erroneously applied the definition applicable at the date of the respondent’s decision.
(2) The judge failed to consider the appellant’s claim that he would be treated as a draft evader on return to Turkey and whether this amounted to an insurmountable obstacle to the couple continuing their family life there or whether this was a very significant obstacle to the appellant re-establishing his private life on return.
(3) The judge failed to take into account the best interests of the sponsor’s younger brother.
(4) When finding at [12] that the appellant’s illegal entry was a factor to be weighed against him in the Article 8 proportionality assessment, the judge failed to have regard to the findings of the previous judge who had heard the appellant’s asylum appeal, who found that the appellant had been sent to the UK by his parents as a 14-year-old, and this was not therefore a matter that he was responsible for.
The hearing
8. At the outset of the hearing, Mr Hulme, on behalf of the respondent, conceded that the judge had made material errors of law for the reasons given in Grounds 1 and 2. It was therefore unnecessary for me to hear submissions from the parties.
Findings – Error of Law
9. I am satisfied that the judge did make a material error of law for the reasons given in Ground 2. It is clear from reading paras 20 to 24 of the appellant’s skeleton argument before the First-tier Tribunal that the appellant sought to rely on a claim that he would face punishment as a draft evader on return to Turkey. While the judge acknowledged at [8] that this was an element of the appellant’s claim, nowhere in his decision does the judge make any findings in relation to this. This issue was plainly something that should have been taken into account by the judge when considering insurmountable obstacles and very significant obstacles.
10. In respect of Ground 1, I am also satisfied that the judge did make a material error of law in failing to consider whether the sponsor met the definition of “partner” under para GEN.1.2. as in force at the date of the hearing. It is clear from reading [10] that the judge instead referred to the old version of the Rules. However, it remains to be seen whether this assists the appellant going forwards given that the definition of “partner” has now been changed again to reinstate the two-year cohabitation requirement. Ms Revill, appearing on behalf of the appellant, said she would reserve her position on this until the next hearing.
Remaking
11. I agree with the parties that none of the judge’s findings can be preserved. Given that the appellant was deprived of the opportunity to have the draft evasion aspect of his claim considered by the First-tier Tribunal and Ms Revill stated that the appellant wished to raise a new matter relating to the sponsor’s pregnancy, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I am satisfied that remittal for a de novo hearing is the appropriate course of action.
Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors on a point of law.
The decision of the First-tier Tribunal is set aside with no findings preserved.
The remaking of the decision in the appeal is remitted to the First-tier Tribunal at Taylor House, to be remade afresh and heard by any judge other than Judge Abebrese.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19th June 2025