Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001798

First-tier Tribunal No: HU/63276/2023
LH/06798/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 October 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

Zafar Abbas Naqvi
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Z. Nasim, Counsel instructed by Legal Rights Partnership
For the Respondent: Mr A. Tan, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 13 October 2025

DECISION AND REASONS

1. The appellant appeals with permission the decision of a judge of the First-tier Tribunal (“the judge”) dated 27 January 2025 (“the decision”). Therein the judge dismissed the appellant’s appeal against the respondent’s refusal of his human rights claim. He did so having rejected the appellant’s claim that there were insurmountable obstacles to him continuing family life in Pakistan with his partner pursuant to paragraph EX-1 of the Immigration Rules (“the Rules”) and because he found the respondent’s decision to refuse his claim to be a proportionate interference with the appellant’s family life with his partner.

2. The appellant challenges the decision on four grounds as follows (summarised):

Ground 1: Insurmountable Obstacles. The judge erred in his application of the test set out in EX-1 and EX-2 of the Rules and failed to have regard to all those matters on which the appellant relied and which were before the judge in the appellant’s skeleton argument (“ASA”).
Ground 2: Article 8. The judge erred as he failed to have regard to all factors on which the appellant relied in this part of the assessment, particularly that the sponsor would lose her indefinite leave to remain (“ILR”) in the UK if she relocated with the appellant to Pakistan and the fact that the appellant is no longer able to meet the elevated minimum income requirement (“MIR”) of the Rules. Both these were raised before the judge in the ASA.
Ground 3: the judge erred in finding that the sponsor’s medical conditions were ‘overly-exaggerated’ given the medical evidence as to the fact and severity of the conditions.
Ground 4: the judge failed to have regard to the sponsor’s need to conduct personal injury litigation from the UK.

3. I granted permission to appeal on 19 May 2025 on all grounds, although I observed that all grounds save Ground 2 appeared weak. I found Ground 2 arguable as it was a factor raised in the ASA which was before the judge yet it did not feature in his decision. In GM (Sri Lanka) [2019] Civ 1630, the Court of Appeal found a failure to factor in loss of status to the proportionality assessment to be an error of law which could not be said to be immaterial [34]-[35].

4. I had the benefit of a 124 page error of law bundle for the hearing. I heard submissions from both parties and at the end of the hearing I reserved by decision. It is to that I now turn.

The Legal Framework

5. The scope of the role of the appellate courts is one about which much has been said. A good example is [26] of para 26 of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 which says as follows:

“26. Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:

(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].

6. Even if there is an error on a point of law, it is for the appellant to show that it is one which justifies setting the decision aside. In other words that it would make a material difference to the outcome. In ASO (Iraq) [2023] EWCA Civ 1282, the test was agreed as being:

“whether 'it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion'. If that is clear, then any error of law would be immaterial, and the appeal should fail. “

7. Paragraph EX-1 and EX-2 of the Rules in force at the date of the respondent’s decision say:

“EX.1. This paragraph applies if
……
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with protection status, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”

Discussion

8. I deal first with Ground 3 as the judge’s findings on the sponsor’s medical conditions are relevant then to the way the judge assessed the appellant’s position under the Rules (Ground 1) but also within the Article 8 proportionality assessment (Ground 2).

9. Ground 3 is effectively a rationality challenge. I invited Mr Nasim to direct me to evidence before the judge to show that the judge was wrong to say the claims were ‘overly exaggerated’. Mr Nasim took me to various parts of the bundle which provided some corroboration for the conditions from which the sponsor claimed to suffer. He accepted that it was more the impact of the conditions which vexed the judge and in that regard he relied on the sponsor’s detailed witness statement. He accepted, as the judge noted, that the advice the sponsor was given about not undertaking long flights because of her DVT was oral only and there was no medical evidence about that before the judge.

10. In that light, I am satisfied that the judge was correct to note what was put to the appellant at the hearing at [14], namely “there was a lack of medical evidence going to the assertion that his wife required constant review and monitoring”. I also find that the judge was justified in finding at [15] that that assertion and the one about her mobility were ‘overly exaggerated’ in the context, also, of what appears unchallenged evidence that the sponsor had returned to her pre-accident full-time work as a dental assistant involving sitting with patients, some cleaning duties and reception work. Furthermore, I find it was open to the judge to reject what was said about the risk of flying given the lack of evidence on the issue and because he found the sponsor’s evidence “vague and lacking in detail on this” [15].

11. On the issue of the sponsor’s allergies, the judge made reference to these at [14] and noted the question put at the hearing that the GP letter noted them as being ‘minor’ and ‘moderate’. That is borne out by the medical evidence in the bundle. I do not see how the judge erred here. I was not directed to evidence that shows the risk to the sponsor being greater in Pakistan rather than the UK and, in any event, the sponsor carries EpiPens with her in the event she requires them. The appellant did not challenge the judge’s findings at [15] that the appellant had failed to provide sufficient evidence to show that medical care in Pakistan is not affordable.

12. Taken together, the appellant has failed to satisfy me that the judge erred in his assessment of the sponsor’s medical conditions. I find the judge’s conclusions on that issue were rationally and reasonably open to him on the evidence before him.

13. I turn now to the remaining grounds. There is a significant overlap between Ground 3 and Ground 1.

14. As to Ground 1, Mr Nasim confirmed at the hearing that his position was not that the judge failed to appreciate that the issue before him was the test set out at EX-2, rather that, he failed to keep that test in mind. He submitted this was illuminated by the judge failing to set the test out in terms. I cannot accept that. In light of what has been said in the authorities at [5] above, there is no need for the judge to set out the test. He has to be assumed to have known and applied the correct test unless there is something in the decision which suggests to the contrary.

15. On that issue, Mr Nasim submitted the judge lost focus on the test as shown by his failure to have regard to the factors on which the appellant relied as set out at paragraph 7 of the ASA. Mr Tan submitted that there is reference at [14] and [15] of the judge’s decision to all of those factors mentioned. I agree. The judge may not have afforded to those factors the weight the appellant hoped, but it cannot be said he failed to have regard to them.

16. There is obviously overlap here with Ground 3 given that four of the seven factors on which the appellant relied in this part of his case related to the sponsor’s medical evidence. Given I have found the judge’s conclusions on that open to him on the evidence, it follows that he was entitled to conclude that those factors did not meet the threshold of insurmountable obstacles.

17. Mr Nasim’s next submission amounts to a submission that the judge applied too high a test and failed to realise that it was not obstacles that were impossible to overcome but ones which were ‘major impediments’ (Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60). I reject that submission. There is no reason to think that at [15] the judge lost sight of the correct threshold. He set out the insurmountable test threshold therein. He had not found the medical conditions to assume the level of severity the appellant argued. He did not find the appellant able to show him that there was a lack of medical treatment for the sponsor in Pakistan. He found the appellant able to work to support them both. He rejected the claim that the sponsor was not fit to fly. Taken together, the appellant argument amounts to a disagreement with the judge’s conclusions on the individual factors in the appellant’s case. Based on his findings, the judge was entitled to conclude they did not meet the requisite threshold and there is nothing to suggest he was mistaken as to what that threshold was.

18. I turn next to ground 4 which I can deal with fairly briefly. Firstly, there is no challenge to the part of the judge’s decision which records the sponsor’s evidence that she had not decided whether to pursue a personal injury claim against her employers. Secondly, the appellant has not identified evidence before the judge to show the sponsor would not be able to pursue any litigation from Pakistan save for the sponsor’s assertion that she would not be able to do so. Thirdly, R v an Immigration Officer ex parte John Quaquah (1999) does not assist the appellant as that deals with the removal of someone from the UK who would otherwise be removed. The sponsor is not the subject of removal directions. In short, the appellant has failed to satisfy me that it was not open to the judge to say at [15] “there is no merit in the contention that the appellant ought to be allowed to stay so that Ms Conway could pursue legal action against her employers”.

19. That leaves Ground 2. This was the ground which I found the most arguable when I granted permission. With that in mind, it was all the more surprising that the respondent did not address it in her Rule 24 response. At the hearing Mr Tan invited me to find Ground 2 to be without merit. He did so on the basis, firstly, that the issue did not assume any real importance in the ASA and nor in oral submissions (although he was not present at the hearing and neither had the respondent applied to rely on any evidence arising from the hearing). Secondly, he argued that it was misconceived given the relationship between the appellant’s case under the Rules and the sponsor’s status as someone with ILR, which he also argued distinguished the appellant’s case from that in GM (Sri Lanka). Thirdly, he argued that there is a straightforward procedure for the sponsor to regain her ILR under ‘Appendix Returning Resident’ so, again, that renders the situation different from that in GM (Sri Lanka). Finally, and in the alternative, he argued it was immaterial.

20. Before addressing these submissions, I turn to what the Court of Appeal said in GM (Sri Lanka) in a little more detail. It is best illustrated by setting out in full paragraphs [34] and [35]:

“34. The first point focuses upon the nature of the rights held by the husband and children. Mr Jafferji argues that the FTT failed to address a relevant consideration, namely the nature of the rights that (non-Appellant) family members might have to relinquish in order to leave and reside with the Appellant in Sri Lanka. It was pointed out that if the husband and children returned to Sri Lanka then under the present law, they stood to lose their present DLR and any advantages, such as legacy rights and a pathway to settlement, that such rights conferred (cf the point made in the TWAN letter set out at paragraph [17] above). In KO (ibid) at paragraph [18] Lord Reed observed that a relevant question was always "where the parents … are expected to be" since it was generally reasonable for children to reside with them. The Court cited with approval the Scottish judgment in SA Bangladesh v SHHD 2017 SLT 1245 paragraph [22] ("SA Bangladesh") where in answering the question: why would a child be expected to leave the United Kingdom, it was held that a court had to consider whether the parents had a right to remain. In answering this latter question a court will need to evaluate the nature of the family's residence rights in the United Kingdom. A similar point was also made by the Court of Appeal in EV (Philippines) (ibid) at paragraph [58] per Lewison LJ cited with approval in KO by Lord Reed at paragraph [19]. In Ali (ibid paragraph [32]) the Supreme Court held that a person's immigration status could "greatly affect the weight" to be given to that person's Article 8 rights. Lord Reed (ibid paragraph [34]) made the important point (of relevance to the present case) that there might not be very much difference in practice between a person with settled status and one lacking such settled status but who would have been permitted to reside in the UK if an application was made, for instance from outside the United Kingdom. The underlying point is a practical one: the law is not concerned with form but with the practical substance of the actual immigration status of the person in issue. It is for this reason that case law has indicated that even if a person has a "settled" status that might not be construed as inalienable if for instance the settled person then commits serious crimes which would nonetheless warrant removal on public order grounds (see the discussion in Rhuppiah paragraphs [39(e)] and [47]). It follows that a person who could be said to be on a pathway to settled status might, in relative terms, be in a stronger position than one with DLR who was not on such a pathway and this relative position needs at least to be taken into account in the proportionality, fair balance, assessment. It might be correct that in both cases the rights may still be said to be "precarious" but nonetheless the nature of the rights actually held was a relevant consideration to be taken into account. Yet here they were not.

35. In the present case the Judge did not analyse or weigh the nature and relevance of the legacy rights held by the Appellant and the children as part of the proportionality exercise. That omission reflects a failure to address a relevant consideration. We cannot say that the failure is immaterial.”

21. In light of importance the Court of Appeal attached to the question of the immigration status of the family members, and given that this was a factor relied on at paragraph 14(ii) of the ASA, I am satisfied it was a matter to which the judge should have had express regard in the proportionality balancing exercise. In light of GM (Sri Lanka) I am not persuaded that it was open to the judge not to do so. Neither am I persuaded that the judge was exempted from expressly doing so by virtue of Mr Tan’s second submission. Firstly, the fact someone has ILR in the UK is likely to be a stronger factor in the proportionality assessment than someone on route to settled status or with discretionary leave, following the line of argument set out at [34] of GM (Sri Lanka). Secondly, whilst it is true to say that the only reason the judge was permitted to consider the appellant’s application under the Rules was because his sponsor has ILR, I am not persuaded this means the judge was aware of it so expressly took it into account as part of the balancing exercise. There is no doubt the judge knew the sponsor has ILR but it was the weight to attach to that in the proportionality exercise which was missing from his analysis.

22. As to the materiality of the error, I find this to be finely balanced. I am cautious about Mr Tan’s submissions about the availability of Appendix Returning Resident given this was only raised for the first time in submissions. Although Mr Tan said it was a simple procedure, Mr Nasim argued that it was not. He submitted there were stringent criteria in place. I agree and I am satisfied it is not as simple as Mr Tan suggested. Accordingly, there is a significant dose of speculation inherent in his position. Mr Nasim also placed weight on the evidence in the sponsor’s witness statement about the reason she left South Africa in the first place. This he argued rendered the loss of her ILR more significant for her.

23. There is another part of Ground 2 to which I turn before arriving at my conclusions on materiality. It is not in dispute that the appellant and sponsor’s evidence was that whilst they could meet the MIR at the date of application, they could no longer do so and hence, their separation is likely to be permanent as the sponsor maintains she will not go to Pakistan. It is not disputed that the judge does not refer to this part of the appellant’s case in his decision.

24. Again Mr Tan challenged the materiality of that based on R (Ekinci) v Secretary of State for the Home Department [2003] EWCA Civ 765 as applied in LH (Truly exceptional – Ekinci applied) Jamaica [2006] UKAIT 00019. In particular Mr Tan relied on [16]-[17] of Ekinci which say:

“16. … Secondly, however, and to my mind more fundamentally, the Secretary of State submits that whether or not the appellant will qualify for entry clearance is presently immaterial: it should be decided not now but when he comes to apply. Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an immigration officer who undoubtedly has a discretion to admit someone outside the rules. And if entry were to be refused at that stage, then indeed a s59 right of appeal would certainly arise in which, by virtue of s65(3), (4) and (5), the Adjudicator would have jurisdiction to consider the Appellant's human rights.

17. In my judgment this second argument is unanswerable. It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply….”.

25. The relevant headnotes in LH are headnotes (1) and (2) which say:

“(1) In determining whether an appellant's removal is disproportionate under Article 8(2) it is wrong to assume that an ECO will ignore or breach his human rights when deciding whether to grant entry clearance to return to the UK;
(2) following Ekinci, removal is not disproportionate merely because any such application would be unsuccessful;”

26. Although Mr Nasim sought to distinguish these authorities, I do not find him able to do so. The reality is that the appellant has not yet made an application for entry clearance and accordingly, no one knows what the outcome of that will be given the discretion the respondent (vested in the Entry Clearance Officer) has to permit an application to succeed without all the requirements of the Rules being met. Therefore even if it was an error for the judge to fail to address this in his decision, I cannot conclude that made any difference to the outcome of the appeal. I say that because to have allowed the appeal when that was an operative factor would likely to have been an error of law in itself applying the above authorities.

27. Therefore, the only error of law I have identified within Ground 2 is the judge’s failure to factor the loss of the sponsor’s ILR into the Article 8 proportionality assessment. Mr Nasim conceded that the only way that error can be material is, if taken together with the other factors on which the appellant relies, they outweigh the weight to be attached to the public interest in the appellant leaving the UK in circumstances where he cannot meet the requirements of the Rules and where there can have been no expectation that family life could necessarily continue in the UK given that the appellant was here unlawfully when they met. For that reason, section 117B(4) of the Nationality, Immigration and Asylum Act 2002 operates such that only limited weight can apply to their family life.

28. Given that I have not found there to be any other errors in the judge’s decision, it is the facts as the judge found them to be which are the ones which weigh into the balance. The question is whether the sponsor’s loss of ILR (as a matter of law after 2 years’ absence from the UK) tips the balance in the appellant’s favour. I find it is too speculative to consider whether the sponsor would be able to successfully reinstate her ILR. I proceed on the basis that by virtue of the operation of the law, after 2 years’ absence from the UK the sponsor will lose her ILR.

29. Given my findings on the rest of this appeal and in light of the above context, I am far from satisfied that the error of law identified within Ground 2, taken together with all the other factors, is anywhere near capable of tipping the balance in the appellant’s favour such that it is likely to make any material difference to the outcome of his appeal. I say that with due regard to what was said at [35] of GM (Sri Lanka). It is clear on the material before me that any rational tribunal could only come to the same conclusion.

30. It follows that whilst I have found an error on a point of law, I do not find it to be a material one justifying setting aside the decision pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007.

Notice of Decision

1. The decision involves the making of an error on a point of law but not one which justifies setting aside the decision.

2. The decision of the First-tier Tribunal stands.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 October 2025