Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002317

First-tier Tribunal No: HU/63145/2023
LH/00546/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of January 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GJON KOLA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Shea of Counsel
For the Respondent: Mr Lawson, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 16 December 2025

DECISION AND REASONS

1. For the sake of convenience, I refer to the parties below as they were known before the First-tier Tribunal.

2. The respondent appealed against a decision of the First-tier Tribunal dated 28 March 2025 allowing the appellant’s appeal against the respondent’s refusal of his human rights claim (an application for entry clearance as the partner of a person present and settled in the United Kingdom).

3. The respondent had refused the application on the grounds of suitability; all the other requirements were met. The First-tier Tribunal Judge (‘the judge’) found that the appellant met the suitability requirements and, in the alternative, that paragraph GEN.3.2 was satisfied. The respondent appealed against the judge’s suitability findings but did not challenge the findings on GEN.3.2.

4. The respondent’s appeal was allowed by Upper Tribunal Judge Khan in a decision dated 28 October 2025 (annexed below), and the judge’s findings on suitability were set aside. However, the unchallenged findings on GEN.3.2 were preserved. The appeal was retained in the Upper Tribunal for remaking.

5. An order having been made by Principal Resident Judge Blum transferring from Judge Khan to me, I remake the appeal as follows.

6. The parties agreed that the hearing could proceed on the basis of submissions alone. While I refer to those submissions below only to the extent necessary to understand my decision, I took them into account in their entirety.

Consideration

7. Before me, Mr Shea accepted that it had been open to the respondent to conclude that the exclusion of the appellant was conducive to the public good because of his previous conduct and so to find that the mandatory ground for refusal prescribed in S-EC.1.5 applied. He did not seek to persuade me that I should conclude differently.

8. I do nevertheless consider the conduct in question, in particular because Mr Shea suggested that significance should be placed on the fact that 10 years had passed since the appellant’s enforced removal at public expense in 2015 and that he had returned voluntarily after his subsequent unlawful return in 2017. Whilst Mr Shea might be correct to say that the usual 10-year exclusion following enforced removal at public expense had now passed, the appellant had returned within 2 years and then remained in the United Kingdom for around 4 years before attempting unsuccessfully to regularise his status by making an EUSS application on 16 April 2021 on the basis of his relationship with his partner. He did not voluntarily return for another 2 years thereafter. In other words, the appellant had remained outside the United Kingdom for only 4 of the 10 years in question. The appellant claims to be remorseful for his previous breaches of immigration laws, and yet he also claims that his intentions ‘were not to undermine or disrespect the laws of the UK’. However, it is difficult to see how he could have intended otherwise.

9. In these circumstances, even if Mr Shea had not conceded the point, I would have had no hesitation in finding that the appellant met S-EC.1.5. I am unable to accept that the appellant is meaningfully remorseful, rather than merely sorry he has caused difficulties for himself.

10. The fact remains, however, that the judge’s findings on GEN.3.2 are preserved. Mr Lawson submitted that the suitability provisions of Appendix FM prevail over its ‘Exceptional Circumstances’ provisions, of which GEN.3.2 is one. Mr Shea argued to the contrary, and I agree with him for the following reasons.

11. First, Section GEN is entitled ‘General’ and is manifestly intended to contain those provisions which apply to the whole of Appendix FM, including the suitability provisions. Second, the relevant provisions of GEN.3.2 are as follows:

‘GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.
(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2.
(4) This paragraph does not apply in the context of applications made under section BPILR or DVILR..1.1’

12. GEN.3.2 expressly applies where an application does not meet the requirements of Appendix FM. It cannot sensibly be argued that the provisions of S-EC are not requirements of the Appendix, against which an entry clearance application is assessed. Therefore, GEN.3.2 applies even when applicant falls foul of the suitability provisions.

13. Third, the Immigration Rules were changed when the suitability requirements of Appendix FM were removed from that appendix and all suitability requirements of the Immigration Rules were consolidated within Part Suitability, such that GEN.3.2(1) now reads.:

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part Suitability, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

Again, it cannot sensibly be argued that, if GEN.3.2 applies to suitability requirements now that they can all be found in Part Suitability, it did not apply to them before their (mere administrative) consolidation into a single part of the rules.

14. Consequently, despite not meeting the suitability requirements for entry clearance, the appellant still meets the Immigration Rules by application of GEN.3.2. That is determinative of the appeal (per TZ (Pakistan) [2018] EWCA Civ 1109).

15. It is my understanding that the consequence of my findings that the appellant will be granted leave on the 10-year route to settlement rather than the 5-year route. However, the leave to be granted consequent to my decision is a matter for the respondent.

16. For the sake of completeness, I record that even if I had been persuaded that the suitability requirements ‘trumped’ GEN.3.2, I would have still felt constrained to allow the appeal outside the Rules.

17. I am bound by the judge’s findings under GEN.3.2. At the risk of repetition, GEN.3.2(2) requires a decision-maker to consider whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant or an affected family member. The unchallenged and consequently preserved findings of the judge are that there are such circumstances which would render refusal a breach of Article 8.

18. For the above reasons, whilst I find that the appellant meets the compulsory refusal provisions of S-EC.1.1 and 1.5, I allow the appeal on human rights grounds.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making an error of law and is set aside.

2. The decision is remade and the appeal is allowed on human rights grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 December 2025

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002317

First-tier Tribunal No: HU/63145/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KHAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GJON KOLA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms R Akther, Counsel instructed by Evolent Law
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 20 October 2025

DECISION AND REASONS

Introduction
1. For the sake of clarity, I will refer to the parties in this decision as they were before the First-tier Tribunal.
2. By these proceedings the respondent, the Secretary of State for the Home Department, appeals with permission against the decision of the First-tier Tribunal to allow the appellant’s appeal on human rights grounds.
3. The appellant is a national of Albania. He came to the UK illegally on 15 March 2015 and claimed asylum. The application was refused, and he was removed from the UK on 22 August 2015 at public expense. He entered the UK again illegally on 01 April 2017 and applied for leave to remain with his current partner under the EU Settlement Scheme (‘EUSS’). The application was refused on 16 April 2021. He appealed the decision which was dismissed on 16 February 2023.
4. On 18 September 2023, the appellant made an application for entry clearance to enter the UK on the basis of family life with his partner and sponsor, Ms Oprea, who is a Romanian national present and settled in the UK. The respondent considered the application under Appendix FM of the Immigration Rules. She found that all of the requirements were met except regarding suitability, paragraph EC-P.1.1 (c) because the appellant had previously entered the UK illegally in 2015 and 2017 and on the earlier occasion had been removed at public expense. The entry clearance officer was not prepared to exercise discretion based on the appellant’s past conduct.
5. The respondent also considered the appellant’s application under paragraphs GEN.3.1 and GEN 3.2 of Appendix FM but found no exceptional circumstances in the case which would render refusal a breach of Article 8 ECHR resulting in unjustifiably harsh consequences to the applicant and the sponsor. The respondent refused the application on 11 October 2023.
6. The applicant appealed the respondent’s refusal decision on the basis that it disproportionately interfered with his right to private and family life under Article 8 of the European Convention on Human Rights (ECHR). The appeal was allowed by First-tier Tribunal Judge Chong (the ‘FtT Judge’).
7. In respect of the issue of ‘suitability’ the FtT Judge found that the appellant had expressed remorse towards his previous conduct and had recognised his previous deeds were wrong. This showed that he was unlikely to breach immigration law and conditions upon being granted leave to enter the UK and therefore the respondent’s reasons for refusal under the suitability provisions at paragraph S-EC. 1.5. of the Immigration Rules were not made out.
8. The Judge additionally found that in any event paragraph GEN 3.2 of Appendix FM applied as there were exceptional circumstances which would render refusal of entry clearance a breach of the sponsor and appellant’s Article 8 ECHR rights because such refusal would result in unjustifiably harsh consequences for them, as it would either break up the relationship or put the sponsor at risk of further deterioration of her mental health due to their ongoing separation in the longer term.
9. The FtT Judge allowed the appellant’s appeal against the respondent’s refusal of entry clearance, and the respondent appealed the decision to the Upper Tribunal.
10. Permission to appeal was granted by Upper Tribunal Judge Sheridan by sealed Order dated 23 August 2025.
11. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
12. The appellant and respondent were ably represented by Ms Akther and Mr Terrell, respectively. I am grateful to them for their very helpful submissions.
Grounds
13. The Secretary of State for the Home Department brings her appeal on one ground, namely, that the FtT Judge made a material misdirection in law by taking an incorrect approach to the issue of suitability under paragraph EC-P1.1(c) of Appendix FM.
14. There is no appeal brought in respect of the First-tier Tribunal’s additional findings at [30]-[41] allowing the appeal on the basis of ‘exceptional circumstances’ pursuant to GEN 3.2. of Appendix FM.
15. In respect of the appeal, the respondent submits that the First-tier Tribunal erred in law by focusing on whether the appellant would be likely to breach immigration laws in the future, rather than looking at whether the appellant’s previous conduct fell foul of the suitability provisions. In other words, the prospective, instead of retrospective approach led to the FtT Judge failing to properly consider the issue of suitability as required by the Immigration Rules. Further, the FtT Judge incorrectly focused on the appellant’s expressed remorse and willingness to comply in the future rather than focusing on the fact that the appellant had entered the UK illegally in 2015 and 2017 and on one occasion had to be removed at public expense.
16. Granting permission, Upper Tribunal Judge Sheridan stated that it was arguable that “the appellant’s previous conduct (entering the UK unlawfully twice) meant that he fell for refusal under the suitability grounds (specifically S.EC.1.5) irrespective of whether he was genuinely remorseful. Accordingly, the Judge arguably erred by placing weight on an immaterial consideration (the appellant’s remorse). This was arguably material because the appeal was allowed on the basis that the Immigration Rules were satisfied, which would not be the case if S-EC.1.5 applies.’
Submissions
17. Mr Terrell on behalf of the respondent took the Tribunal to the relevant paragraphs of the FtT decision at [26]-[29]. He submitted that the respondent took no issue with paragraph [26] which correctly recorded that simply because someone was in the UK lawfully did not mean that there was no risk that they would end up breaching immigration laws in the future.
18. Mr Terrell said the FtT Judge fell into error at paragraphs [27]-[29] by failing to properly review the refusal reasons provided by the Entry Clearance Officer, namely, the appellant’s past conduct.
19. In this regard, the FtT Judge erred by going much wider in his consideration than only the appellant’s past conduct. He placed strong weight on the appellant’s remorse in respect of his past conduct and his pledge to do things correctly in the future.
20. The FtT Judge also noted that the appellant voluntarily returned to Albania in 2023 and chose to pursue an entry clearance application and not to re-enter the UK illegally despite the difficulty of maintaining his marriage. Therefore, on balance the FtT Judge concluded that he was satisfied that the appellant was unlikely to breach immigration law and conditions upon being granted leave to enter the UK and therefore the respondent’s reasons for refusal under the suitability provisions were not made out.
21. In respect of the assessment under Gen 3.2., Mr Terrell said that decision was flawed as there was no proportionality exercise undertaken that involved consideration of whether it was conducive to the public good that the appellant be refused entry clearance. That issue was clearly material to the decision made under GEN 3.2. and was not taken into account.
22. Ms Akther on behalf of the appellant submitted that the reasons provided to refuse entry clearance were misconceived. The FtT Judge was entitled to look at the appellant’s past, current and future conduct given that the Immigration Rule S-EC.1.5 referred to exclusion from the UK that is ‘conducive to the public good’. The Immigration Rule did not require the Judge to look only at past conduct or to exclude future conduct and therefore the holistic approach adopted by the Judge was correct.
23. Ms Akther also referred to the reported decision of PS (India) [2010] UKUT 440 1AC. She submitted that this case was similar (in part) to the facts of the appellant’s case and was relevant in holding that the public interest must be viewed holistically which was not done in the appellant’s case. In this regard, the reported decision held that in exercising discretion under paragraph 320 (11) of the HC 395 to refuse an application for entry clearance, a decision maker must exercise great care in assessing the aggravating factors said to justify refusal and must have regard to the public interest in encouraging those unlawfully in the UK to leave and seek to regularise their status by an application for entry clearance.
24. Ms Akther concluded by saying that regardless of the outcome of the appeal, the respondent had not challenged the decision of the First-tier Tribunal regarding the application of GEN 3.2. of Appendix FM which remains extant.
25. In reply, Mr Terrell recalled that paragraph 1 (f) of the appeal grounds stated that the appeal was allowed on the basis that the appellant satisfied the requirements of the Immigration Rules (which is determinative of the issue of proportionality) and accordingly no public interest assessment was required. In this regard, the decision of PS (India) was of limited value as it related to a different Immigration Rule than currently under consideration in this appeal.
Findings and reasons
26. The starting point for consideration must be the Immigration Rules and the refusal decision.
Appendix FM states:
S-EC.1.5. ‘The exclusion of the applicant from the UK is conducive to the public good because, for example, the applicant’s conduct (……………) character, associations, or other reasons, make it undesirable to grant them entry clearance.’
27. Part 9: Immigration Rules – grounds for refusal states:
9.3.1. An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations, or other reasons ……’
28. The respondent’s refusal letter dated 11 October 2023 states under the heading ‘Suitability’ that the appellant had twice entered the UK illegally in 2015 and 2017 and between these two illegal entries had been removed from the UK at public expense. Further, that the appellant had shown a blatant disregard towards the UK’s Immigration Rules. It concludes that in light of the appellant’s conduct it was undesirable to issue him with entry clearance and that discretion would not be exercised in his favour.
29. In the respondent’s review dated 5 November 2024, the refusal decision was maintained. At paragraph 5, it is stated that the appellant entered the UK twice illegally: April 2017 for 77 months and March 2015 for 5 months and that his continuous disregard and non-compliance with the Immigration Rules leads the respondent to maintain that his exclusion from the UK is conducive to the public good due to his previous behaviour and conduct.
30. The respondent’s appeal is brought on the narrow ground that the FtT Judge made a material misdirection in law on the material issue of ‘Suitability’ by focusing on whether the appellant would be likely to breach Immigration laws in the future, rather than looking at whether the appellant’s previous conduct falls foul of the suitability provisions. Further, the FtT Judge’s prospective, instead of retrospective approach led to the FtT Judge failing to correctly consider the issue of ‘Suitability’ as required by the Immigration Rules. Finally, it is argued that the FtT Judge overlooked the issue of the appellant’s illegal entries when considering ‘Suitability’ by incorrectly focusing on the appellant’s expressed remorse for his actions and his willingness to comply with the rules in the future.
31. The basic point made by Mr Terrell is that the role of the FtT Judge was to review what the Entry Clearance Officer (‘ECO’) did by way of their decision and that the FtT Judge failed to do that by going much wider to consider and place weight on the appellant’s expressed remorse and his willingness to comply with the Immigration Rules in the future. What the FtT Judge did not do was to properly consider the appellant’s past conduct in the context of ‘Suitability’ under the Immigration Rules.
32. In contrast, Ms Akther argued that the Immigration Rules are not prescriptive and the Judge’s holistic approach at [27]-[29] which included looking to the future was the correct one.
33. There is no dispute between the parties that the appellant was refused entry clearance because his application fell for refusal on the grounds of ‘Suitability’, namely, his admitted conduct of entering the UK illegally on two previous occasions in 2015 and 2017 and being removed at public expense on one occasion in 2015.
34. As the sole reason for refusal of entry clearance was the appellant’s previously admitted conduct which the FtT Judge correctly identified at [24], the starting point for their consideration should have been to review what evidence was before the ECO to justify their decision to refuse entry clearance on the basis of the admitted conduct and the circumstances around the appellant’s conduct and removal.
35. There is little to no consideration of this in the First-tier Tribunal decision. Rather, it is evident that instead of considering the correctness of the ECO’s decision, the FtT Judge focused instead on the appellant’s expressed remorse [27] and his willingness to comply with the Immigration Rules in the future [28].
36. Taking account of such additional factors may well have been appropriate to the First-tier Tribunal’s consideration of the ECO’s decision, but it should not have been the FtT Judge’s main focus to the detriment of reviewing the core reason for the refusal provided by the decision maker against the framework of the Immigration Rules.
37. Finally, in respect of the authority of PS (India) relied on by the appellant, I agree with Mr Terrell that it is of limited value for the reason he has stated.
38. In the circumstances, despite Ms Akther’s spirited submissions I have no hesitation in concluding that the respondent’s appeal is made out and that the First-tier Tribunal decision involved the making of an error of law.
39. The error of law being a material misdirection in law on material matters by adopting a prospective, instead of a retrospective approach leading to the First-tier Tribunal failing to correctly consider the issue of ‘Suitability’ as required by the Immigration Rules, and overlooking the previous conduct of the appellant by incorrectly focusing on the appellant’s expressed remorse for his action and his willingness to comply with the Immigration laws in the future.
40. Accordingly, I allow the appeal and set aside the decision to the extent that it relates to the respondent’s sole appeal ground relating to ‘Suitability.’ As the respondent’s appeal did not challenge the decision in respect of GEN 3.2 of Appendix FM, that decision stands.
41. Having heard submissions on disposal and having regard to the decision of Begum [2023] UKUT 46 IAC, I consider that it is appropriate for the hearing to be retained in the Upper Tribunal for remaking with preserved facts. The matter for remaking is a narrow issue. The parties have agreed that the facts in general should be preserved as they are not being challenged as such.
Notice of Decision
42. The respondent’s appeal regarding ‘Suitability’ is allowed as the making of the decision of the First-tier Tribunal Judge Chong involved a material error of law.
43. The decision of the First-tier Tribunal is set aside as far as it relates to the matter of ‘Suitability.’

Directions

1. The appeal will be listed for hearing in the Upper Tribunal on a date to be fixed with a time estimate of 2 hours.

2. If either party wishes to adduce any further evidence additional to the evidence submitted to the First-tier Tribunal, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.

3. If the appellant wishes to give oral evidence which is in addition to existing witness statements, he must provide an additional witness statement capable of standing as evidence in chief, to be served in accordance with direction [2] above.

4. If the appellant wishes to call any other witness to give oral evidence, he must provide a witness statement capable of standing as evidence in chief for that witness, to be served in accordance with direction [2] above, and must state if an interpreter is required, and if so, in which language.

K.A. Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 October 2025