Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Case No: UI-2025-002042

(First-tier Tribunal No: HU/52158/2024)
LH/01545/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

ARIFA SULTANA BUSHRA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr S Karim, Counsel, instructed by Liberty Legal Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 8 July 2025

DECISION AND REASONS
1. The Appellant appeals with the permission of the First-tier Tribunal against a decision, dated 1 April 2025, of a Judge of the First-tier Tribunal sitting in Manchester (“the judge”) dismissing her appeal against a decision of the Respondent, dated 19 February 2024, refusing her application for leave to enter the United Kingdom to join her partner, Mr Dulal Ahmed (“the sponsor”).
2. The First-tier Tribunal did not make an anonymity order and I saw no reason to make one either.
The factual background
3. The Appellant is a citizen of Bangladesh born on 3 March 2003. She married the sponsor in Bangladesh on 25 June 2022 (registered on 12 July 2022) and, on 24 November 2023, she made an application for entry clearance. The sponsor only has limited leave to remain in the United Kingdom. The Respondent therefore refused the application by reference to the provisions of Appendix FM of the Immigration Rules. Specifically, the Eligibility requirements of the rules were not met because the sponsor did not fall into any of the categories set out in paragraphs E-ECP.2.1. to 2.10 of Appendix FM. The sponsor was on a ten-year route to settlement, so the application could not succeed until he had settled status. The Respondent also considered whether there were exceptional circumstances which could render refusal a breach of Article 8 of the Human Rights Convention, but noted the Appellant had not provided any information to establish that.
4. The Appellant appealed. Counsel’s skeleton argument argued that the decision was unlawful on the basis that it did not comply with section 6 of the Human Rights Act 1998 because the decision had consequences which were unjustifiably harsh. The essence of the argument was that the sponsor could not relocate to Bangladesh because he is the carer for his mother, a British citizen. The skeleton argument also argued the decision was discriminatory towards people on a ten-year route to settlement in breach of Article 14, but this argument has not been pursued.
5. At the hearing in the First-tier Tribunal, the judge heard oral evidence from the sponsor and submissions from the parties. The judge stated at [15] that the sponsor relocating to Bangladesh to live with the Appellant would not result in unjustifiably harsh consequences because the sponsor’s father had been granted leave to remain on 9 July 2024 on the basis of his need to care for his wife. He noted the earlier decision of First-tier Tribunal Judge Cameron, promulgated on 13 January 2020, allowing the sponsor’s appeal so that he could look after his mother. However, the situation had moved on. The judge was satisfied the sponsor’s father was in good health and could take on responsibility for his wife [16].
6. I observe that Judge Cameron had noted at [32] of his decision that the sponsor’s father had come to visit the United Kingdom but was due to return to Bangladesh in June 2019 because he had a business and other children there.
7. The judge considered section 117B of the Nationality, Immigration and Asylum Act 2002. He noted the Appellant and the sponsor would always have known their status was precarious and that they should have planned accordingly [22]. Not only could the sponsor’s father care for his mother but he would have the support of social services and the NHS in doing so. The sponsor’s mother receives a Personal Independence Payment (PIP) and his father could apply for Carer’s Allowance. The sponsor’s mother could visit him in Bangladesh and she appeared to have coped on the occasions when the sponsor left the United Kingdom [23].
8. The Appellant’s grounds seeking permission to appeal contained three grounds, which can be succinctly summarised as follows:
(1) There had been procedural unfairness in that the issue of sponsor’s father caring for his wife had not been raised in cross-examination or submissions. An adverse point had been taken without it being put to the witness. The judge had speculated on the reasons for the sponsor’s father being granted leave.
(2) The judge had overlooked evidence showing the sponsor continued to act as his mother’s carer. No reasons had been given for rejecting this evidence.
(3) The judge’s Article 8 assessment was flawed. It was irrational to describe the Appellant’s leave as precarious as she is outside the United Kingdom. The ‘little weight’ provisions did not apply. The judge had not understood that, when the sponsor had left the United Kingdom, his mother had accompanied him.
9. Permission to appeal was granted because it was arguable the judge had materially erred in determining an issue not raised at the hearing without giving the Appellant’s witnesses the chance to comment on it.
10. No Rule 24 Response has been uploaded but I was told the appeal was opposed.
The submissions
11. Mr Karim elaborated on the grounds seeking permission to appeal. On Ground 1 he said the judge fell into the error described in TUI UK Ltd v Griffiths [2023] UKSC 48 and Ullah v SSHD [2024] EWCA Civ 201. The Respondent accepted that there had been no cross-examination or submissions on the point about the sponsor’s father caring for his mother. It had therefore been impossible for the Appellant to address the key issue on which the judge had made his decision. The judge had raised the issue for the first time in his decision and he had also speculated in finding that the sponsor’s father had been granted leave to look after his wife. He had not. The decision should be set aside due to procedural unfairness.
12. On Ground 2, Mr Karim said there was evidence before the judge that the sponsor’s father was unable to look after his wife, so the judge erred in stating at [16] that there was “no evidence” of the same. The judge had relied on the report of Dr Bashir (a psychiatrist who had prepared a report on the sponsor’s mother’s mental health in 2018, presumably to support the sponsor’s own case as it was referred to by Judge Cameron), which described his father as being 58 years of age and in good health. Matters had moved on. Mr Karim added the judge had failed to make any credibility finding on the evidence of the sponsor.
13. As for Ground 3, Mr Karim ran through the errors he identified in his grounds as regards the judge’s approach to Article 8, beginning with the finding at [17] that Article 8 was not even engaged. The judge misdirected himself in law in applying section 117B because the family life in this case was established abroad. The Appellant did not have status which could be ‘precarious’. Finally, at [23] in relation to the public interest, the judge made an error of fact as regards the sponsor’s mother coping while he was abroad. In fact, she had accompanied him on his two trips to Bangladesh.
14. Mr Ojo replied, opposing the appeal. In reply to Ground 1, he argued the judge had been on notice of the issue of the Appellant’s father-in-law looking after her mother-in-law, so he had to determine it. He relied on Lata (FtT: principal controversial issues) [2023] UKUT 00163 to support this. He pointed to the evidence of the sponsor and his mother about the father’s inability to care for the mother.
15. Mr Ojo argued that the judge had to resolve issues of credibility and he relied on the following passage from SSHD v Maheshwaran [2002] EWCA Civ 173:
“4. Undoubtedly a failure to put to a party to litigation a point which is decided against him can be grossly unfair and lead to injustice. He must have a proper opportunity to deal with the point. Adjudicators must bear this in mind. Where a point is expressly conceded by one party it will usually be unfair to decide the case against the other party on the basis that the concession was wrongly made, unless the tribunal indicates that it is minded to take that course. Cases can occur when fairness will require the reopening of an appeal because some point of significance – perhaps arising out of a post hearing decision of the higher courts – requires it. However, such cases will be rare.
5. Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal’s attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.”
16. Mr Ojo then developed his argument on the basis that this case was different to the general principles discussed in [4] of this passage and was closer to the circumstances described in [5] because there were inconsistent statements in the evidence. He disagreed that the presenting officer had accepted the point about the sponsor being his mother’s primary carer, notwithstanding the witness statement of the Appellant’s solicitor, Mr Hoque, confirming the same. Mr Ojo said the change in circumstances since Judge Cameron found the sponsor’s father was not caring for his wife was significant. The judge was entitled to rely on Dr Bashir’s report as it was the only medical evidence before him. He said the sponsor’s mother’s witness statement was inconsistent with Dr Bashir’s evidence. In the bundle of over 2,000 pages, there was no new evidence from the sponsor’s father. The sponsor said his father could not understand what his mother needed and was illiterate but there was no mention of any physical reason he could not care for her.
17. Finally on Ground 1, Mr Ojo took me to the parts of TUI and Ullah stating that the expectation that points needed to be put before adverse findings could fairly be made should not be applied too rigidly. He argued that the reliance on Dr Bashir’s report brought this case squarely within the exception identified in TUI at [66]: “… the witnesses’ evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report.” Dr Bashir said the sponsor’s father was healthy and his mother said he was not.
18. Mr Ojo argued the Appellant was legally represented and the evidential issues should have been addressed but were not.
19. Finally, on Ground 1, Mr Ojo referred to the reliance in the grounds on HK v SSHD [2006] EWCA Civ 1037, specifically at [30], where the Court gave its well-known warning about reliance on inherent implausibility. The grounds argued the judge had speculated. Mr Ojo argued the judge had not fallen into such error and had based his finding on inconsistencies in the evidence.
20. At this point I asked about the true basis on which the sponsor’s father-in-law had been granted leave. Mr Karim said the letter of grant referred to paragraph EX.1 of Appendix FM and therefore the grant was on the basis that there were insurmountable obstacles to the continuation of family life abroad. Mr Karim said this was different to leave being granted so that he could care for his wife. I was then told that leave had only been granted after an appeal to the First-tier Tribunal but neither side had a copy of the decision. I said I regarded that as a surprising omission.
21. Mr Ojo said Ground 2 was tied in to Ground 1. As for Ground 3, Mr Ojo argued the sponsor’s leave had been precarious. His application for leave had still been outstanding at the time of the hearing. The judge had correctly applied Rhuppiah v SSHD [2016] EWCA Civ 803. Mr Ojo accepted the judge had found there was family life at [14]. However, the sponsor had a choice to remain in the United Kingdom and visit the Appellant or he could move abroad to live with her. The judge had not made a mistake of fact about the sponsor’s mother accompanying him to Bangladesh because only the biodata page of her passport was included in the bundle. He could not have been expected to identify her from the wedding photos. Mr Ojo suggested quite robustly that there had been “clear suppression of evidence which could have been provided.” The sponsor’s mother had decided not to give evidence. If the judge had made a mistake of fact, then it had been caused by the Appellant. In any event, the error could not have been material because, if the judge had accepted the mother travelled with the sponsor, then it showed her health condition was not as serious as claimed and there was nothing to prevent her accompanying the sponsor when he visited the Appellant.
22. Mr Karim replied at length, highlighting that the Respondent appeared to accept four matters: (1) that the issue of whether the Appellant’s father-in-law can care for the sponsor was not put to the witness. He added that the inconsistences relied on by Mr Ojo were not put either. (2) section 117B(5) was applied in error. (3) the issue of whether the sponsor’s mother had travelled with him was not put either. (4) there had been no evidence before the judge showing the basis on which his father had been granted leave, save for the reference in the letter of grant to paragraph EX.1. This was clearly a material error.
23. Mr Karim helpfully clarified that the sponsor is still waiting for his application for further leave to be considered and, in the interim, he has statutory leave under section 3C of the Immigration Act 1971. He estimated the sponsor could apply for settlement in around 2½ to 3 years.

Decision on error of law
24. Having heard the parties, I announced that I considered the judge’s decision had to be set aside due to material error of law. My reasons are as follows.
25. It is clear that the judge, having found family life [14], went on to find that there was no unjustified lack of respect for family life [14], [17], and the refusal (which meant the sponsor would have to relocate to Bangladesh to enjoy family life with the Appellant) did not amount to unjustifiably harsh consequences and was therefore proportionate [15]. Whilst he found that the sponsor’s mother had psychiatric conditions, received a PIP and stated she needed constant care, her husband could provide that care [16], [23].
26. Although the judge also gave weight to the fact the sponsor and Appellant knew that their situation did not meet the requirements of the Immigration Rules as the sponsor was not yet settled (albeit the judge got sidetracked trying to apply the ‘little weight’ provisions, when they should not have been applied) and they should have planned accordingly [22], it is very clear that the main reason he dismissed the appeal was that he did not accept the Appellant’s case that the sponsor could not leave his mother alone in the United Kingdom to pursue family life with the Appellant in Bangladesh. The reason for that was that he did not accept the position remained as it had been before Judge Cameron [23].
27. The law, as set out in TUI, Ullah and also in Abdi v ECO [2023] EWCA Civ 1455 is that a failure to raise a point at the hearing will often amount to procedural unfairness because the losing party has not been afforded an opportunity to address it. So it is here. As sketched out in the witness statements, there was evidence that the sponsor’s mother remained reliant on the sponsor notwithstanding the presence in the United Kingdom of her husband. The judge decided that the sponsor’s father could care for her. It is conceivable that, had the question been put to the sponsor why his father could not look after his mother so that he could live with his wife in Bangladesh, the sponsor might have provided a cogent reason. Likewise, if the presenting officer had made that submission, counsel for the Appellant could have responded. As it is, according to Mr Hoque’s statement, the presenting officer accepted she remained reliant on the sponsor. The judge’s reliance on the issue to determine the appeal was plainly unfair.
28. Mr Ojo argued valiantly that the judge was entitled to make an adverse credibility finding on the evidence before him and, as Schiemann LJ observed in Maheshwaran at [5], where inconsistent statements have been made and are not addressed by the parties who made those statements, it will not usually be the case that those inconsistencies must be put.
29. However, the judge’s decision does not suggest he dismissed the appeal because he made adverse findings based on inconsistencies in the witness evidence. Whilst he did express himself in terms of there being “no credible evidence before me regarding as to why it would not be possible for the appellant’s mother-in-law to be cared for full-time by the appellant’s father-in-law instead of the sponsor” and he rejected the notion that his lack of English would be a hindrance [23], the decision as a whole shows this needs to be understood as meaning the evidence had not been put forward, rather than he found the evidence unsatisfactory.
30. I do have some sympathy with Mr Ojo’s point that there was evidence which should have been adduced but which was held back but, in those circumstances, the presenting officer needed to make their case to the judge to that effect. It was unfair of the judge to proceed to make a decision based on his assumption without this being addressed.
31. The error described in Ground 1 is made out and it is not strictly necessary to address the other grounds. The Appellant’s appeal is allowed and the judge’s decision is set aside.
32. I invited submissions on how to proceed with the re-hearing of the appeal. Bearing in mind the general principle set out in statement 7 of the Senior President’s Practice Statements, I indicated I was ready to hear the re-making of the appeal. I noted the presence of the sponsor, who was the only person to give oral evidence in the First-tier Tribunal. I observed that remitting the appeal would lead to further delay.
33. However, Mr Karim opposed my re-hearing the appeal and rightly reminded me of the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)) that remittal for re-hearing is the normal course where there has been a finding of procedural unfairness.
34. I was told by Mr Karim that the sponsor’s English was not good enough to give evidence without an interpreter. Mr Ojo also indicated that he would want to adduce the decision in the appeal of the sponsor’s father, Mr Md Kaptan Miah, and other documents.
35. The appeal is therefore remitted to the First-tier Tribunal to be heard again by a different judge.
36. There will be case management by the Manchester hearing centre. The issues to be determined will include:
(1) Whether the sponsor could relocate to Bangladesh because his father could care for his mother, with the assistance of the statutory services available and the PIP payment, and bearing in mind the evidence suggests the sponsor has a full-time job (page 112 of the hearing bundle). This will require careful consideration of what assistance the sponsor’s mother requires on a daily basis and her husband’s current state of health. If neither the sponsor’s mother or father are called to give evidence, it should be explained why this course has been chosen to avoid the risk of an adverse inference being drawn.
(2) The full reasons that the sponsor’s father was granted leave to remain and how his circumstances might have changed since the hearing before Judge Cameron. These are likely to be made clear in the decision made on his appeal.
(3) Whether the sponsor’s mother could accompany him to Bangladesh if he chose to pursue family life with the Appellant there, as it is accepted she has done for limited periods of time in the past. The sponsor’s passport stamps show one visit from 7 July to 26 August 2022 and another from 6 February 2023 to 17 March 2023 (pages 106-109 of the bundle).
(4) Whether the fact the sponsor will be able to apply for settlement relatively soon and the fact the couple chose to marry in the knowledge the sponsor could not meet the Immigration Rules are factors weighing in favour of refusal.

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 the decision of the First-tier Tribunal is set aside.

The appeal is remitted to the First-tier Tribunal to be heard again.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated 9 July 2025