Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002506

First-tier Tribunal No: HU/53617/2024
LH/08051/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 August 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

TARAS CHORNIY
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S. McKenzie, Senior Home Office Presenting Officer
For the Respondent: Mrs K Degirmenci, counsel instructed by Yemets Solicitors

Heard at Field House on 04 August 2025

DECISION AND REASONS
1. For the sake of continuity, we will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant before the Upper Tribunal.
2. The original appellant (Mr Chorniy) appealed the respondent’s (SSHD) decision dated 28 March 2024 to refuse a human rights claim.
Decision letter – 28 March 2023
3. The summary of the appellant’s immigration history contained in the decision letter is somewhat unclear, but is supplemented by the evidence given in the appellant’s witness statement. It is said that the appellant was refused leave to enter as a visitor on 15 April 2005, but it is unclear whether this was a refusal of entry clearance or at port. The decision letter says that the appellant was encountered by immigration officials on 29 April 2013 while trying to leave the UK. He was served will papers notifying him of his liability to removal. The appellant’s statement says that he entered the UK with a visa, but he and his cousin were refused leave to enter at port and were returned home.
4. On 20 November 2019 the respondent says that the appellant was granted entry clearance as a visitor, which was valid until 17 June 2020. It is unclear whether the appellant entered the UK for a visit or not. On 16 November 2020 the appellant made a further application for entry clearance as a visitor, which was refused on 27 November 2020.
5. It is said that the appellant claims to have entered the UK illegally on 08 February 2022. His evidence is that he and his wife travelled to Poland on that date. Then they travelled to the UK illegally in a lorry. The exact date when the appellant entered the UK with his wife is unclear. He says that a couple of days later, on 24 February 2022, the war started in Ukraine. His young adult children were able to travel to the UK under the Ukraine Scheme in March 2022 (daughter) and December 2022 (son).
6. The appellant applied for asylum on 15 March 2023. The appellant said that his wife applied for leave to remain on 05 May 2023 and was granted 30 months leave to remain. On 29 June 2023 the appellant applied for leave to remain under the Family and Private Life route. On 27 July 2023 he asked to withdraw his asylum claim.
7. The Secretary of State refused the application for leave to remain in the UK as a partner because the appellant did not meet the ‘Eligibility – relationship’ requirement contained in Appendix FM. His Ukrainian partner had limited leave to remain in the UK. She did not meet the requirement to be a British citizen or a person who is present and settled in the UK. The appellant did not meet the requirements of Appendix Private Life. He did not meet the 20 year long residence requirement (PL 5.1(a)). Nor had he shown that he would face ‘very significant obstacles’ to integration in Ukraine given that he had spent most of his life in the country and was familiar with the language and culture there (PL 5.1(b)).
8. Under the heading ‘Article 8 of the European Convention of Human Rights’ the decision letter went on to say:

‘I have considered whether there are exceptional circumstances in your case which would render removal a breach of Article 8 of the European Convention on Human Rights (ECHR) because it would result in unjustifiably harsh consequences for you, a relevant child or another family member….
…
I note the points you have raised in your application, including your claim that there will be insurmountable obstacles for you and your partner to continue your family life outside the UK. Whilst it is acknowledged that your partner has been granted Limited Leave to Remain in the UK Outside the Rules until 18 November 2025, this is a not a route to settlement and does not mean that you are unable to live together outside the United Kingdom. Any claimed private life or ties to the UK were established with your full knowledge that you did not have permission to remain here permanently and you and your partner have never been given any legitimate expectation to remain here indefinitely. Therefore, from the outset, all parties should have been aware of the possibility that family life might not be able to continue in the UK.’ [our emphasis]
9. It is unclear why the next section of the decision letter is entitled ‘Section 8 of the Asylum and Immigration (Treatment of Claimants) Act: Credibility’, when the appellant had already withdrawn his asylum claim. However, the next paragraph of the decision letter stated:

‘It is note you claim to have a fear of returning to your country of Origin (sic) Ukraine due to the ongoing war. You do not qualify for permission to stay within the United Kingdom. You are currently living in the UK without permission. You will not be removed from the UK at this time due to the current conflict in Ukraine, however you remain liable to removal. You will receive a separate notice if a decision is taken to remove you from the UK at a later date.’ [our emphasis]
First-tier Tribunal decision – 22 January 2025
10. First-tier Tribunal Judge Juss (‘the judge’) allowed the appeal on human rights grounds in a decision sent on 22 January 2025. The judge outlined the relevant facts and summarised what happened at the hearing. The key reasons for the judge’s decision are relatively brief. Some of our observations will be illustrated better if we quote those reasons in full.

‘12. First, this is an appeal where the Appellant has been refused LTR because of his ‘poor immigration record’ in circumstances where his wife and children (who entered with him) have been granted it, and where there exists real, effective and committed family life between them (Kugathas [2003] EWCA Civ 31). The Appellant could arguably return to Ukraine and make an application to join his wife and family here. In the alternative, they too could all arguably go with him while he returns to make an application to return. However, none of these scenarios is a realistic prospect for either of them, where there is both a waging war in the Ukraine and where the Home Office policy is clearly not to return Ukrainians back to that country for the time being. Should the appellant be forced to return he will be met with ‘insurmountable obstacles to integration,’ which could not be overcome or would entail very serious hardship for them all. I direct myself on the basis of the CA decision in Kamara [2016] EWCA Civ 813, where it was explained that the concept of ‘integration’ is one which “is a broad one” because “it is not confined to the mere ability to find a job or sustain life while living in the other country.” Instead, the term ‘integration’ is one which “calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have reasonable opportunity to be accepted there” (para 14). I am not satisfied that this is the case. I am not satisfied, for the reasons already given that either Appellant has “a capacity to participate in….life in the society in that other country” any longer [our emphasis]

13. Second, there is clearly a breach here of the Appellants’ Article 8 rights. Although the Appellant cannot succeed under Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) for the reasons set out in the refusal letter, the question is whether there are “exceptional circumstances” here. The Appellant obviously does not succeed inside the rules. The question is whether he succeeds outside them. I find that he does do so. The decision in Agyarko [2017] UKSC 1 explains, “the European Court’s use of the phrase ‘exceptional circumstances’ in this context was considered by the Court of Appeal in MF (Nigeria) [2013] EWCA Civ 1192 (paragraph 56). The Supreme Court goes on to say that,

“Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State’s policy, expressed in the Rules and instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of the Immigration Rules, only where there are ‘insurmountable obstacles’ or ‘exceptional circumstances’ as defined.” (Paragraph 57).

14. The Supreme Court provides helpful guidance when it goes on to say that,

“The Secretary of State has not imposed a test of exceptionality in the sense that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she had defined the word ‘exceptional’, as already explained, as meaning circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.” (Paragraph 60).

15. I am satisfied that there will be ‘unjustifiably harsh consequences’ to the Appellant, for
the reasons I have already identified above, if he were to returned to Ukraine now.’
Upper Tribunal proceedings
11. The Secretary of State applied for permission to appeal the First-tier Tribunal’s decision. Although we would usually summarise the main points, again, some of our observations may be illustrated better if the grounds are quoted in full.

‘1. Making a material misdirection in law on any material matter.

a) It is respectfully submitted that the First-Tier Tribunal Judge (FTTJ) has materially erred in law by failing to conduct the proportionality balancing exercise under s.117B of the 2002 Act in consideration of the Appellant’s Article 8 family life.

b) At [13] of the Determination the FTTJ sets out the findings for the allowed appeal setting out the issue of “exemptional (sic) circumstances”. However, it is submitted that the FTTJ had failed to consider the specified factors under s.117B and proportionality assessment.

c) Reliance is placed on Dube (ss.117A-117D) [2015] UKUT 00090 (IAC) head note (1)(a) of which states:

“(a)judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.”

d) It is submitted that the FTTJ has materially erred in law by failing to have regard to the statutory public interest considering of s.117A – 117D of the 2002 Act and as such the decision should be set aside.

e) In the alternative, it is submitted that the FTTJ had failed to provide adequate reasoning as to why the Appellant’s private life outweighs the public interest in effective immigration control.’
12. First-tier Tribunal Judge Bagral granted permission to appeal to the Upper Tribunal in an order dated 05 June 2025.
13. We have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.
14. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. We have kept these considerations in mind when coming to our decision.
Decision and reasons
15. We have set out the content of the decision letter, the reasons given by the First-tier Tribunal, and the grounds in full. This is to illustrate why, despite shortcomings in the First-tier Tribunal’s decision, we have concluded that the error of law, as pleaded in the grounds, would not have made any material difference to the outcome of the appeal.
16. It is clear from the decision letter, and as found by the judge, that the appellant did not meet the requirements of paragraph E-LTRP.1.2. of Appendix FM because he did not meet the ‘Eligibility; relationship’ requirement due to the nature of his wife’s immigration status. The respondent did not raise any concerns about the genuine nature of the relationship.
17. It also seems clear that the appellant was unlikely to meet the requirements of paragraph PR 5.1(b) of Appendix Private Life when he has spent most of his life in Ukraine and was unlikely to have any difficulty with cultural reintegration within the meaning considered by the Court of Appeal in SSHD v Kamara [2016] EWCA Civ 813.
18. In considering whether there were exceptional circumstances that might justify a grant of leave to remain outside the immigration rules it is notable that the decision letter considered whether removal in consequence of the decision would amount to a breach of Article 8. On the next page the decision maker acknowledged that the appellant would not be removed due to the conflict in Ukraine.
19. At the hearing, we asked Ms McKenzie what the Secretary of State’s position was in relation to this appeal when it was accepted that the appellant could not be removed to Ukraine at the current time. She told us that she had taken instructions on the issue. She was instructed that ‘removal was a matter for the respondent’.
20. We also asked Ms McKenzie to elaborate on how or why the judge’s failure to deal with the public interest factors outlined in section 117B of The Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’) would have made any material difference to the outcome of the appeal when, as a matter of public policy, the Secretary of State accepted that the appellant should not be removed to Ukraine. Ms McKenzie said that a balancing exercise was necessary so that the respondent could understand why the public interest was outweighed. The judge failed to give adequate reasons.
21. It appears that there is no dispute that the appellant’s right to family life was likely to be engaged for the purpose of Article 8(1) of the European Convention. No issues were raised by the Secretary of State as to the genuine nature of the marriage. The appellant said that he and his wife have been married since 11 November 1995. They have 2 young adult children who are also living in the UK. The appellant’s removal from the UK would cause a separation from his immediate family that is likely to be of sufficient gravity to engage the operation of Article 8(1).
22. The immigration rules reflect where the Secretary of State considers a fair balance lies between the right to respect for private and family life and public interest considerations for the purpose of Article 8(2) (GEN.1.1. Appendix FM). The judge found that the appellant did not meet the requirements of the rules relating to Family Life (Appendix FM) or Private Life (Appendix PL).
23. Section 117A NIAA 2002 applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life and as a result would be unlawful under section 6 of the Human Rights Act 1998 (‘HRA 1998’). In considering ‘the public interest question’ a court or tribunal must have regard to the considerations listed in section 117B. In other words, those factors only go to what weight should be placed on public interest considerations when considering the balancing exercise under Article 8(2).
24. The first of those factors is that ‘the maintenance of immigration control is in the public interest’ (section 117B(1)). Other factors include (i) the ability to speak English (section 117B(2)); (ii) to be financially independent (section 117B(3)); (iii) that little weight be placed on a private life or a relationship formed with a qualifying partner at a time when the person is in the United Kingdom unlawfully (section 117B(4)); (iv) that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious; and (v) provisions relating to genuine and subsisting parental relationships with a qualifying child.
25. The Secretary of State has failed to particularise how or why any of those factors were likely to make any material difference to the outcome of the appeal, either in the grounds of appeal or in oral submissions at the hearing.
26. At best the ability to speak English and the ability to be financially independent are neutral factors: see Ruppiah v SSHD [2016] 1 WLR 4203. Sections 117B(2) and (3) were unlikely to make any material difference. The appellant had been married to his wife for many years before they came to the UK i.e. this was not a relationship established at a time when he was in the UK unlawfully. For this reason, section 117B(4) did not apply. The appellant did not rely on his length of residence or strength of private life in the UK as a significant factor given his short length of residence in the UK, nor could he. For this reason, section 117B(5) was unlikely to be relevant. Nor did he have any ‘qualifying children’ who were under the age of 18 for the purpose of section 117B(6).
27. In short, the only public interest factor that was likely to be relevant was section 117B(1) relating to the general statement that it is in the public interest to maintain an effective system of immigration control. It is clear from the decision letter that the Secretary of State considered the appellant to have a poor immigration history. However, when read with the appellant’s statement, it becomes apparent that the summary of that history might not have been entirely accurate. At highest, it disclosed that he may have been turned away at port when he tried to enter with a visit visa in 2013. The appellant says that this was due to concerns that he had stayed longer than he said he would on the previous occasion (albeit still within the 6 month visa) and that he did not have sufficient funds for the second visit. It is said that the appellant’s wife entered the UK illegally at the same time as him in 2022. Despite this, she has been granted limited leave to remain as a citizen of Ukraine who could not be removed.
28. Turning to the First-tier Tribunal’s decision. There are a number of shortcomings on the face of the decision that we cannot ignore. We observe that the judge failed to take a structured approach to the assessment of Article 8. The references to the legal framework at [12] appear to muddle half of the test of ‘insurmountable obstacles’ contained in paragraph EX.1 of Appendix FM with half of the ‘very significant obstacles’ test contained in paragraph PL.5.1.(b) of Appendix Private Life. The judge’s reference at [13] to paragraph 276ADE in relation to private life was out of date because the provision is now included in Appendix Private Life. This much should have been clear from the terms of the decision letter. The findings relating to the ‘very significant obstacles’ test, such as they were, appeared to differ between what was said at [12] and then at [13].
29. Having found that the appellant did not meet the requirements of the immigration rules, the relevant test was not ‘real, effective and committed family life’ between adult relatives when considering his relationship with his wife albeit it would have been the relevant test in relation to his adult children. There was a lack of reasoning for that finding, but the existence of family life did not appear to be in any meaningful dispute. Having found at [13] that an assessment needed to be made ‘outside the rules’ it is the case that the judge then failed to undertake a structured assessment with reference to Article 8(1) and then a balancing exercise under Article 8(2).
30. However, it is notable that none of these shortcomings were identified by the Secretary of State in the grounds of appeal. Nor was any application made to amend the grounds of appeal. The burden is on the Secretary of State to show that the decision involved the making of a material error of law. As a result, we are left considering a poorly reasoned First-tier Tribunal decision with poorly pleaded and unparticularised grounds of appeal.
31. Although we agree that the First-tier Tribunal decision is confused and poorly reasoned, the main reason why the judge allowed the appeal is in fact clear. In the middle of [12] the judge considered whether family life could continue in Ukraine, but then concluded:

‘However, none of the scenarios is a realistic prospect for either of them, where there is both a waging (sic) war in the Ukraine and where the Home Office policy is clearly not to return Ukrainians back to that country for the time being.’
32. In another case, the fact of illegal entry and then not meeting the requirements of the immigration rules would in all likelihood be sufficient to outweigh a person’s right to private and family life in the absence of any compelling or exceptional circumstances. In this case, the respondent’s policy, which forms part of the system of immigration control, is not to forcibly remove the appellant to Ukraine because of the ongoing conflict there. In the circumstances, it is difficult to see what public policy issues outweighed the appellant’s right to family life in the UK. The judge found that the fact that removal cannot take place because of the ongoing conflict was likely to be an exceptional circumstance that renders the decision to refuse limited leave to remain disproportionate.
33. Given our general observations about the First-tier Tribunal decision we have considered whether it would be appropriate to set aside the decision and remake it. We bear in mind that section 12(2) of The Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’) states that the Upper Tribunal may (but need not) set aside the decision of the First-tier Tribunal. We note that none of the more obvious errors that we have observed were identified by the Secretary of State in the pleadings. Nor was there any application to amend the grounds. For the reasons given above, we find that the Secretary of State has failed particularise how or why the judge’s failure to consider section 117B would have made any material difference to the outcome of the appeal. In the end, the single reason given by the judge for allowing the appeal is tolerably clear. The decision was within a range of reasonable responses to the evidence.
34. For the reasons given above, we conclude that the Secretary of State’s grounds of appeal do not disclose an error of law in the First-tier Tribunal’s decision that would have made any material difference to the outcome of the appeal. The decision shall stand.
Post-script
35. We have made our own observations in relation to Article 8 during the course of this decision to explain why the main issue, which formed the central part of the judge’s reasoning, was the fact that the Secretary of State accepts that the appellant cannot be removed to Ukraine at the current time.
36. As the Secretary of State made clear in the decision letter, the appellant’s wife has not been given leave to remain on a route that necessarily leads to settlement. It was granted on an exceptional basis outside the rules because she is a citizen of Ukraine and cannot be removed. Given that the appellant does not meet the requirements of the immigration rules, in our view, the effect of this appeal being allowed on human rights grounds does not oblige the respondent to grant the appellant leave to remain for 30 months on a 10 year route to settlement. It is open to the respondent to grant the appellant limited leave in line with his wife until such time that she considers removal action can be taken. No doubt the respondent will take into account the fact that, unfortunately, there is no foreseeable end to the conflict in Ukraine at the current time. It is a matter for the Secretary of State to decide how to proceed in light of the findings made by the First-tier Tribunal and the Upper Tribunal.

Notice of Decision
The First-tier Tribunal decision did not involve the making of a material error of law

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

06 August 2025