Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001832

First-tier Tribunal No: HU/53753/2024
LH/07855/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20 January 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE DURRANCE

Between

KARANTA CHAM
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Tariq, Counsel instructed by Gilani and Co Solicitors
For the Respondent: Mr E Tuffan, Senior Home Office Presenting Officer

Heard at Field House on 20 October 2025

DECISION AND REASONS

1. The Appellant a national of Gambia, born in 1960, appeals against the decision of First-tier Tribunal Judge Marshall (“the Judge”) dated 9 March 2025 who had dismissed his appeal based on human rights grounds.

2. Permission to appeal was sought by the Appellant and granted by another judge of the First-tier Tribunal. The grant of permission had stated:

“It is arguable that the judge materially erred in law when deciding the question of whether an interference with the applicant’s right to respect for private and family life is justified under Article 8(2) of the ECHR, by failing to consider whether or not an application by the applicant for leave to remain on the basis of having completed 20 years’ continuous residence would be likely to be rejected by the Secretary of State and, if not, whether the identified interference was so justified. See for example the analogous situation described by the Upper Tribunal in OA and Others (human rights; 'new matter'; s.120 : Nigeria) [2019] UKUT 65 (IAC).”

3. At the hearing before us, Mr Tuffan referred to the Secretary of State’s Rule 24 response pursuant to the Tribunal Procedure (Upper Tribunal) Rules 2008. That stated that the Respondent did not oppose the Appellant’s application for permission to appeal. It was conceded by the Respondent that the Appellant had been continuously resident in the United Kingdom for 20 years. The Respondent stated that the Judge had failed at paragraph 16 of her decision to consider the relevant caselaw, as cited in the Appellant’s grounds of appeal when assessing the case under Article 8 of the European Convention on Human Rights.

4. Mr Tuffan confirmed that there were no other reasons, suitability or otherwise, why the Appellant’s appeal ought not to succeed.

5. It is clear from the Judge’s decision that she noted that the Respondent accepted that the Appellant had entered the UK on 3 September 2004. The Judge went on to conclude at paragraph 14 that she accepted on the evidence presented to her, including the oral evidence of the Appellant and his witness, that the Appellant had lived continuously in the UK since then. The Judge concluded though that in view of paragraph 5.1 of Appendix Private Life she had to dismiss the appeal based on the Immigration Rules because the Applicant’s application was made on 7 December 2022 and so he did not meet the requirement as at the date of application that there had been continuous residence for 20 years or more.

6. It is clear that the Judge was correct to dismiss the appeal based on the Immigration Rules. That is because the Appellant was able to show a continuous period of residence between 3 September 2004 to 7 December 2022 (being the date of application) and which amounted to continuous residence of only 18 years and not the requisite 20 years.

7. The Judge’s material error though was that she had to go on to consider the Appellant’s 20 year long residence between the date of the Appellant’s arrival into the UK (3 September 2004) and the date of the hearing before her (being 7 March 2025). That was a period of greater than 20 years’ continuous residence.

8. The Appellant had referred both in the grounds of appeal, but also at the hearing before the Judge to the correct case law. Mr Tuffan accepts that. The Judge ought to have allowed the appeal. The Appellant had said in his grounds of appeal:

The Appellant submits that the Judge failed to consider the case of TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109 in particular §34 which states the following:

“Accordingly, the tribunal should undertake an evaluation of the insurmountable obstacles test within the Rules in order to inform an evaluation outside the Rules because that formulates the strength of the public policy in immigration control 'in the case before it', which is what the Supreme Court in Hesham Ali (at [50]) held was to be taken into account. That has the benefit that where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided 8 their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.” 3. The case of TZ was referred to the Tribunal by the Appellant’s counsel. Further, the Tribunal failed to consider the point that if the Immigration Rules are satisfied at the date of hearing, then unless there are reasons which justify removal of the Appellant, the appeal should be allowed even if at the date of the application, the rules were not met.
These are the principles in the case of OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC) in which the headnote states the following:

“(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.
(2) The fact that P completes ten years' continuous lawful residence during the course of P's human rights appeal will generally constitute a "new matter" within the meaning of section 85 of the 2002 Act. The completion of ten years' residence will normally have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the Secretary of State to refuse P's human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.
(3) Where the judge concludes that the ten years' requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P's human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P's removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain. (4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P 9 subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.”

4. The Appellant’s position is clear. At the date of hearing, and as accepted by the FTT, the Appellant met the 20 years continuous residence rule (§16 of the determination). Thus, despite not meeting the rules as at the date of application, the Appellant met the rules at the date of hearing. Thus, the human rights appeal should have been allowed. The Judge did not identify any discrete public interest factors which would make P's removal proportionate. 5. It is respectfully submitted that the Judge erred as she did not consider the caselaw and failed to allow the appeal under human rights having found that the Appellant had been resident in the UK for 20 years at the date of hearing.

9. In view of the submissions properly and fairly made to us by Mr Tuffan, we conclude that the Judge materially erred in law in dismissing the appeal.

10. Having found that the Appellant had completed 20 years continuous residence in the UK and there being no other suitability or similar matters, she ought to have allowed the Appellant’s appeal on Article 8 grounds.

11. We therefore set aside the Judge’s decision.

12. We remake the decision and we allow the Appellant’s appeal on Article 8 ECHR grounds. There are still no suitability or other reasons why the appeal ought not succeed.

Notice of Decision

The decision of the First-tier Tribunal contains a material error of law and is set aside.

We remake the decision and allow it on Article 8 ECHR grounds.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 January 2026