Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003091

First-tier Tribunal No: PA/62660/2023
LP/13070/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

AH
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Heybroek of Counsel, instructed by City Taylor Solicitors
For the Respondent: Ms Keerthy, Senior Home Office Presenting Officer.

Interpreter: Bengali Sylheti

Heard at Field House on 5 January 2026

DECISION AND REASONS
SUMMARY
1. The principal issue in this appeal is whether the Appellant has a genuine and subsisting parental relationship with his biological son “RAH”. For the reasons which follow, I have concluded that the Appellant does enjoy such a relationship and that the Appellant’s removal would be unlawful under s.6 HRA 1998.
INTRODUCTION
2. The Appellant appeals against the Respondent’s decision (“RFRL”) dated 16 November 2023 refusing his further submissions dated 28 February 2023.
3. In an error of law decision dated 3 November 2025, as annexed to this Decision, I set aside the decision of First-tier Tribunal Judge Coll dated 24 March 2025, dismissing the Appellant’s appeal. In so doing, I found that Judge Coll materially erred in law by failing to take into account evidence that necessarily infected her Family Life and co-habitation findings. However, in the absence of any challenge I preserved the FTT’s record of the oral evidence.
4. The background to this appeal is set out in my error of law decision.
5. The Appellant’s appeal now comes before me to be remade pursuant to s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
THE HEARING
PRELIMINARY MATTERS
6. At the outset of the hearing, I ensured that the Appellant and the interpreter understood each other before explaining the proceedings. I then ensured that the parties had before them a stitched hearing bundle (“SB”) consisting of 367 pages.
7. Ms Heybroek then applied to admit into evidence a divorce certificate under rule 15(2A), as served under written application on 17 October 2025. No further witness statements or other evidence was included in this application. The written application states,
“We apologise for not submitting the enclosed supplementary evidence earlier. We received our client’s divorce certificate after the First Tier Tribunal (FTT) decision. Consequently, we were unable to provide the divorce certificate before the FTT hearing. This certificate is vital to the appeal, as it verifies that the appellant was indeed divorced from his first marriage prior to marrying his current spouse.”
8. In reply, Ms Keerthy objected to the application on the basis that the new evidence was dated 16 September 2025 and as such, it post-dated the First-tier hearing.
9. I find that the written application complies with the conjunctive requirements of 15(2A)(a) to indicate the nature of the evidence and why it was not before the FTT. No issue has been taken with the reasons given. I note that another divorce certificate was placed before the FTT and as I understood Ms Heybroek’s submission, this new certificate was obtained because on 12 March 2025 Hackney Council refused to accept the previous certificate as evidence of a divorce (see at SB [262]). Whilst I find some unexplained delay in acquiring this evidence after the FTT hearing on 24 March 2025, it was nonetheless served some 3 months before the remaking of this appeal. Given such notice, I find that no prejudice will be suffered by the SSHD in admitting the new evidence and find it in the interests of justice to do so.
10. In the light of the preserved record of oral evidence contained in Judge Coll’s decision, in discussions with the parties Ms Heybroek confirmed that she would not be calling any oral evidence. As such the appeal proceeded by way of submissions only.
11. Ms Heybroek conceded that the Appellant could not succeed under either the partner or parent routes of Appendix FM. This is because the Appellant cannot meet Gen 1.2 on account of the length his co-habitation with HB, and he cannot meet E-LTRPT 2.3 because it his case that he shares responsibility for the three children with HB, and HB is his co-habiting partner. As such, EX1 cannot apply.
12. Notwithstanding that EX1 does not fall to be considered, it was agreed that the conjunctive test of “genuine and subsisting parental relationship” and whether “it would not be reasonable to expect the child to leave the UK” under EX1(a) was analogous to the test under 117B (6) of the Nationality, Immigration and Asylum Act 2002.
13. During submissions, Ms Keerthy conceded that it was not reasonable to expect any of the children to leave the UK for the purposes of 117B (6)(b).
14. During submissions, Ms Heybroek conceded that if I was not with her in respect of 117B (6) or the “Very Significant Obstacles to Integration” test under immigration rule PL 5.1(b) of Appendix Private Life, the Appellant would be unable to demonstrate Unjustifiably Harsh Consequences outside the rules.
15. Ms Keerthy did not seek to persuade me that the Appellant did not enjoy a Private Life in the UK worthy of protection.
ISSUES
16. As such, the following issues remained in dispute:
i) Whether the Appellant enjoys family life with Mrs Hafsa Begum (“HB”), their biological son “RAH”, and HB’s two children from a former relationship (“C1” and “C2”).
ii) Whether the Appellant enjoys a genuine and subsisting parental relationship with RAH, C1 and C2 for the purposes of 117B (6).
iii) Whether there would be “Very Significant Obstacles” to the Appellant’s integration in Bangladesh.
EVIDENCE AND SUBMISSIONS
17. In the absence of oral evidence, I heard submissions from Ms Heybroek and then Ms Keerthy, before allowing Ms Heybroek a right of reply.
18. At the close of the hearing, I indicated that I would be reserving my Decision, which I would provide in due course with reasons. I now set out my reasons and Decision as follows.
THE LAW
19. Before outlining the parties' competing legal submissions, I set out the essential legal framework for the issues arising in these proceedings.
20. When assessing the public interest side of the scales in my proportionality assessment under Article 8(2) ECHR, if I find that the requirements of the immigration rules are met, this will be determinative of the appeal in the Appellant’s favour, as confirmed in TZ (Pakistan) and PG (India) [2018] EWCA Civ 1109 at [34],
“[…..] 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 their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.”
21. In the event that the immigration rules are not met, the issue is whether the Decision under appeal would engender “Unjustifiably Harsh Consequences”, such that removal would be disproportionate. The correct approach to this question is confirmed in Agyarko [2017] UKSC 11 at [60],
“It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has 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”. So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case and cannot be regarded as incompatible with article 8 [….]”
22. When conducting this balancing exercise, I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the Appellant when striking a fair balance.
23. Where the Appellant can meet the provisions of 117B (6), this will be determinative of the appeal in the Appellant’s favour, because there will be no public interest in the Appellant’s removal.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
DISCUSSION
Family Life
Appellant’s divorce from Ruzina Begum (“RB”)
24. It was the Appellant’s evidence before Judge Coll that in March 2018 he had a match making meeting with HB in the UK, which was arranged by HB’s mother and the Appellant’s aunt. The Appellant claimed that he then divorced his wife (“RB”), who resides in Bangladesh, on 25 October 2020 and entered an Islamic marriage with HB on 26 June 2021.
25. During these events, the Appellant’s remitted protection appeal was heard by FTIJ Shepherd on 23 September 2019 and dismissed on 3 December 2019. That appeal arose from the Appellant’s asylum claim made on 26 May 2016. I find it self-evident from Judge Shepherd’s decision (at SB [334]) that Article 8 was not in issue.
26. In Judge Coll’s analysis of whether the Appellant was divorced from RB, a point taken against the Appellant at [26] was that the Appellant had failed to mention HB to Judge Shepherd and had failed to mention the 2018 matchmaking meeting or any impending divorce from RB.
27. These adverse findings were drawn in contrast to a summary of the Appellant’s evidence taken from paragraph [20] of Judge Shepherd’s decision, which Judge Coll summarised at [12(b)] as follows:
“In rural Bangladesh at home, his mother shares a house with his brother and his wife and children. His own house is right next to that but remains empty. His wife and children live with her uncle [RB 71 paragraph 20 from the Appellant’s 1st statement dated 10th of February 2017].”
28. In submissions, Ms Heybroek argued that the reason why HB was not mentioned in Judge Shepherd’s decision was twofold. First, the witness statement underpinning Judge Shepherd’s summary of the Appellant’s family circumstances in Bangladesh was dated 10 February 2017, over a year before the Appellant attended the match making meeting with HB in March 2018. Second, Article 8 was not in issue before Judge Shepherd, so it was unsurprising that the substance of the Appellant’s relationship with RB after the 2017 WS did not fall to be considered further. As such, argued Ms Heybrok, things had now moved on, and Judge Shepherd’s findings based upon a 2017 witness statement had no relevance to today’s appeal.
29. In reply, Ms Keerthy relied upon the references in Judge Shepherd’s decision to RB being the Appellant’s “wife” and reiterated Judge Coll’s finding at [27] that just because the wife was living with her uncle in 2019, this did not mean that the marital relationship with the Appellant was not continuing.
30. On balance, I find the references to RB being the “wife” of the Appellant in Judge Shepherd’s decision wholly unsurprising in circumstances where the Appellant does not suggest that he divorced RB until 2020. Equally, I find it clear in Judge Shepherds decision that the summary of the Appellant’s family circumstances in Bangladesh is drawn from a WS that predates his meeting with HB. As such, I agree with Ms Heybroek, that in circumstances where Article 8 was not in issue before Judge Shepherd, it is wholly unsurprising that relationship events after the 2017 witness statement did not arise. I therefore do not find Judge Shepherd’s factual summary of the Appellant family circumstances in Bangladesh at all probative of the Appellant’s relationship with HB at the date of its promulgation on 3 December 2019.
Divorce Certificate
31. Before Judge Coll, the Appellant produced a divorce certificate (at SB [263]), which records the Appellant as marrying RB on 23 September 2018 and the marriage being dissolved on 25 October 2020. Unsurprisingly, given the Appellant’s oral evidence that he married RB in 2000, when the date on the marriage certificate was put to Appellant at the FTT, he claimed that the date on the certificate was a mistake. However, the Appellant further claimed that he had not appreciated that the date was erroneous.
32. Whilst the failure to spot the erroneous date of the marriage is surprising, it is nonetheless the SSHD’s case that the Appellant was and remains, married to RB. As such, whilst I find that nothing turns on the Appellant’s ignorance of the date of marriage in the certificate, I find on balance that the mistake itself does undermine the reliability of the divorce certificate.
33. In the Appellant’s rule 15(2A) application, he has provided a further divorce certificate at SB [38]. Contrary to the previous certificate, the new certificate asserts that the divorce from RB took place 20 November 2020. There is no mention of the 25 October date in this document.
34. As argued by Ms Keerthy, there is no WS explaining how this new certificate was obtained and in the absence of oral evidence there was no opportunity for the Appellant to explain the discrepant dates.
35. In Ms Heybroek’s submission, it was accepted that the dates conflicted, but it was suggested that because the divorce certificate before the FTT referred to a Talaq, this was different to the registration date in the new divorce certificate. In any event, argued Ms Heybroek, even if they did not divorce as alleged, polygamous Islamic marriages are permitted.
36. Contrary to Ms Heybroek’s submission the new divorce certificate in fact identifies two dates: a date of registration on 5 March 2021 and a date of divorce as 20 November 2020, neither of which appear in the first certificate. In terms of the suggestion that the Appellant could in any event have entered a polygamous marriage, notwithstanding that that is not the Appellant’s evidence, such a conclusion can only arise if I find the divorce certificate unreliable.
37. Drawing these strands together, in the absence of any up-to-date WS or oral evidence, I find no cogent explanation before me for the inconsistencies in these documents. Equally, I have no subjective evidence before me concerning how the second certificate was acquired. Having regard to the “CPIN Bangladesh: Documentation” at [5] and [6], as relied on by Ms Keerthy in her submissions, in the round with my other findings, on balance I find that the divorce certificates are not reliable documents and that the Appellant has not demonstrated that he is divorced from RB.
Marriage to HB
38. It is the Appellant’s case that he entered an Islamic marriage with HB on 26 June 2021 and that since that time the Appellant has cohabited with HB and the three children, “developed an extremely close bond”, and that the “marriage is genuine and subsisting” (see WS at [8]). In support of the existence of this marriage, at SB [152] the Appellant has produced a certificate of marriage dated 26 June 2021.
39. However, it has never been disputed by the SSHD that the Appellant underwent an Islamic marriage, as confirmed in the RFRL at [30], “while you have undergone an Islamic religious marriage ceremony with your partner, you are not legally married and she is not for the purposes of this consideration, your spouse”. The way that the SSHD puts her case in the RFRL is that notwithstanding that it is accepted that the Appellant and HB have a child together (RAH), there is insufficient evidence of co-habitation, insufficient evidence of a genuine subsisting relationship with HB and insufficient evidence of a genuine and subsisting parental relationship with RAH and HB’s children C1 and C2.
Address on Marriage Certificate and when Co-habitation Began
40. A point taken by Ms Keerthy in submissions was that the marriage certificate identifies the Appellant as living at St Huberts House, whilst HB is identified as living at Trays Hill Close. This, Ms Keerthy argued, was evidence that the couple were not co-habiting at that time. In this regard, I note both of these addresses are different to the Nevitt House address, which is the purported address of co-habitation in the rest of the documentary evidence.
41. I find that both the Appellant’s WS at [8] and HB’s WS at [7] assert that co-habitation began from the date of marriage. As such, I find nothing inherently incredible or inconsistent about both Appellant and HB providing different addresses on the day of their marriage.
42. A further point argued by Ms Keerthy, was the Appellant’s failure to recall the correct date of his Islamic marriage in oral evidence before Judge Coll: erroneously stating 26 March 2021 instead of 26 June 2021. In submissions Ms Heybroek argued that the Appellant simply got the month wrong and - perhaps a little unkindly - suggested that this was a “man thing”. Whilst people do forget wedding anniversaries, I find that it nonetheless does not reflect well upon the importance that the Appellant places upon his marriage to HB.
43. In this regard, I am mindful that only one wedding photograph has been produced at SB [297], which is of such poor quality, that it is almost impossible to recognise the Appellant. This photograph shows no guests at all. Equally, as argued by Ms Keerthy, there is no corroborative evidence from any of the alleged 100 or so guests at this wedding (see Judge Coll’s decision at [34]), no witnesses to the genuineness of the relationship and no explanation for the absence of such evidence. In this regard, I note that the marriage certificate at SB [152] confirms the presence of 2 witnesses, neither of which has provided any evidence in support of this appeal.
44. I find that the Appellant has been given ample opportunity to substantiate his claims of a big wedding with 100 guests. Indeed, I find that the Appellant would have been aware that Judge Coll had previously drawn an adverse inference from the same paucity of evidence relating to the Appellant’s wedding. In the absence of any attempt to address this evidential lacuna or indeed provide any updated written or oral evidence, I do not accept that the Islamic wedding was a big event as claimed. On balance I find it more likely than not that the wedding was a very small event with the attendance of only the 2 witnesses referred to in the marriage certificate.
45. Ms Keerthy then went on to suggest that the Appellant and HB had also been inconsistent in their oral evidence before Judge Coll in respect of when they began to co-habit: the Appellant having stated 26 March 2021 and HB stating 26 June 2021.
46. The difficulty with this submission is that the co-habitation dates given by the Appellant and HB in oral evidence are consistent with their witness statement evidence that they began to cohabit straight after their marriage. This is because the Appellant erroneously believed in his oral evidence that they married on 26 March 2021, whilst HB correctly believed that they married on 26 June 2021.
47. As such, whilst I find that the Appellant’s inability to correctly recall his wedding day undermines the importance of the marriage to the Appellant, I find that the Appellant and HB have in substance been consistent about when their co-habitation began.
Evidence of Co-Habitation
48. The key error of law found in Judge Coll’s decision, was a failure to have regard to RAH’s undisputed birth certificate (at SB [148]) when concluding that the Appellant and HB had never co-habited. This birth certificate identifies the Appellant living with HB at the time of RAH’s birth in November 2022. In this regard, it is to be noted that the SSHD has expressly conceded both before the FTT and the UT that the Appellant is the father of RAH on the basis that the birth certificate is a reliable document.
49. Whilst the SPO suggested at the error of law hearing, that despite it not being argued before the FTT, evidence of the Appellant’s address in the birth certificate could be undermined by the little evidence required to register a birth, that argument was not pursued at the remaking of this appeal. The way Ms Keerthy put her case was on the basis that the address given for the informant in the birth certificate did not include the Appellant. I wholly reject this argument. I find it plain that both the Appellant and HB are identified as the informants in the birth certificate and that the address for both informants is given as Nevitt House.
50. I am therefore satisfied on balance that the Appellant was living at this address with HB and her children at the time of RAH’s birth on 8 November 2022, 17 months after entering an Islamic marriage with HB.
51. The Appellant has further provided a Universal Credit statement at SB [153]. This document identifies an assessment period between 3 November to 2 December 2023 and the Appellant and HB as living at the Nevitt House address. In submissions, Ms Keerthy impugned this document on the basis that only 1 Universal Credit letter had been provided, and the Appellant had failed to serve the evidence that he would have sent to the DWP.
52. Although there is no evidence of the documents provided to the DWP, and whilst there is no further DWP evidence demonstrating co-habitation at other times, the Appellant has provided more co-habitation evidence from other sources.
53. In this regard, he has provided 2 utility warehouse bills dated 12 May 2024 and 8 December 2024; an NHS letter dated 28 February 2025 and school letter dated 24 April 2024. In addition, whilst undated, the Appellant has further provided a flu vaccination letter placing the Appellant at the same address.
54. In submissions, after going through all of this documentary evidence, I asked Ms Keerthy whether she was still maintaining the SSHD’s position that the Appellant and HB had never co-habited. In reply, I find that she resiled from this position when stating “no meaningful co-habitation”.
55. Given the accepted facts that the Appellant entered an Islamic marriage with HB in June 2021 and then fathered RAH; and given my finding that the Appellant was living with HB at the time of RAH’s birth in November 2022; when these facts are considered in the round with the other evidence of co-habitation in November – December 2023, April – May 2024, December 2024 and February 2025, I find this evidence more than sufficient to demonstrate on the balance of probabilities that the Appellant has been living with HB since 26 June 2021 at the Nevitt House address.
Knowledge
56. In terms of the Appellant’s and HB’s knowledge of each other, in submissions Ms Heybroek argued that what are alleged to be discrepancies between the answers given by the Appellant and HB in oral evidence, on closer inspection they are nothing of the sort.
57. At [35(a)] of Judge Coll’s decision, when asked about HB’s employment the Appellant correctly stated that HB worked on Tuesdays and Wednesdays for the Marshati domestic violence charity on Holloway Road and that the charity was funded by the Home Office. However, the Appellant did not know how HB got into her line of work, the content of her job, the level of her employment, or her qualifications.
58. At [35(b)] Judge Coll suggested that the Appellant did not answer a question about HB’s hobbies and instead said that HB liked to cook him curries and that they liked to go out eating - although he did not specify the type of restaurant. HB on the other hand stated that she liked to meet up with friends and go out for a meal.
59. At [35(c)] HB said she liked the Appellant to make meat or fish curry, whilst the Appellant simply stated, “Indian curry”. HB further stated that she liked eating Turkish and Pakistani food when she went out.
60. At [35(d)] HB did not know about the Appellant’s hobbies other than claiming that he met his friends in coffee shops and at political meetings. However, the Appellant stated that he was at home all the time with the children and only went out to the mosque or to the park with C1 and C2.
61. At [35(e)] the Appellant said that they had a party at home for HB’s birthday, but no one came to the house to celebrate because it was Ramadan. HB on the other hand said that whilst they usually go to a restaurant or get takeaway, this year they did not celebrate her birthday.
62. I find that the Appellant evidently did know who HB’s employers were, their address, what type of charity they ran, who funded it and HB’s working patterns. However, I find it clear that the Appellant knew little about the person who undertook this employment: what she did day to day, her qualifications and her motivation to work for the charity. Equally, whilst I find no real inconsistency between the Appellant’s and HB’s account of what food the Appellant made for HB, the Appellant did not particularise HB’s food preferences. I also find it clear that the Appellant and HB disclosed inconsistent knowledge about what the other did in their spare time and how HB celebrated her last birthday.
63. Unfortunately, for the Appellant’s own reasons, he chose not to provide any further evidence that may have been probative of any arguable ambiguities in this record of evidence. As such, on balance I find that this evidence only demonstrates a superficial knowledge that could be obtained through co-habiting, rather than a level of detail one would expect from a co-habiting married couple who enjoy a genuine and subsisting relationship.
Photographs
64. At SB [158] – [163] the Appellant has provided a number of photographs in support of his claim to enjoy family life with HB, C1, C2 and RAH. At [158] – [159] are photographs of what appears to be C2’s 6th birthday party, which show the Appellant holding RAH whilst standing with C1, C2, HB and another young woman whose identity has not been explained. At [160] – [163] are photographs of what appear to be RAH’s birthday, which show the Appellant holding RAH whilst cutting a cake, along with HB and C1. Again, the unknown young woman is in this photograph too. At [163] is a picture of the Appellant with - I presume to be - RAH on his knee, whilst sitting next to the unknown woman in the other photographs. At [164] the Appellant is pictured in a car with his arm around RAH, whilst sitting with C1. At [165] the Appellant is seen on his own whilst holding RAH and at [166] the Appellant is seen with RAH on his knee whilst sitting with HB.
65. The striking feature about these photographs is that they show RAH at various ages from being a baby upwards. I also find it striking that although only some of the photographs are candid, in all of them there is an evident warmth and familiarity between family members, which I find on balance is unlikely to have been staged.
66. It is also relevant to note that, as agued by Ms Heybroek, although no oral evidence was called, HB and RAH did attend the hearing to support the Appellant’s appeal, during which I found it possible to observe the interaction between the Appellant and RAH. Whilst I am mindful of Legatt LJ’s reasoning at [33 – 43] of SS Sri Lanka [2018] EWCA Civ 1391 and the dangers of taking demeanour into account, I am also mindful that RAH is only 3 years old, and what struck me was how comfortable RAH was with being handled by the Appellant and their familiarity. I found this interaction consistent with the interaction seen in the photographs.
67. As such, notwithstanding both the limited number of photographs and the unclear context in which these photographs were taken, I give them weight.
Relationship with C1 and C2
68. In submissions Ms Heybroek argued that the Appellant enjoyed a genuine and subsisting parental relationship with C1 and C2 and in so doing, relied upon the record of oral evidence at [40] – [42] of Judge Coll’s decision indicating that the Appellant helped with school runs.
69. However, I find it clear that the Appellant stated that he had not helped with school runs since March 2024 and before this he helped only “occasionally”. Contrary to this evidence HB referred to the Appellant continuing to undertake school runs when dark and inferred that the Appellant did so often. As such, whilst I accept on balance that the Appellant has helped with school runs, I find it more likely than not that the Appellant has only ever assisted “occasionally” and find this of limited assistance in demonstrating any family life.
70. I find that there is not a single piece of evidence before me relating to the role of C1 and C2’s biological father. Indeed, there is no mention of him in the witness statements and there is no mention of him in the oral evidence.
71. In this regard I am mindful of UTJ Grubb’s reasoning in I R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); "parental relationship") IJR [2016] UKUT 00031 (IAC), as affirmed in the Presidential decision of Ortega (remittal; bias; parental relationship) [2018] UKUT 00298 (IAC),
44. If a non-biological parent ("third party") caring for a child claims such a relationship, its existence will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely, in my judgment, that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child's life as the child's parents as in a case such as the present where the children and parents continue to live and function together as a family. It will be difficult, if not impossible, to say that a third party has "stepped into the shoes" of a parent.
72. As such, in the absence of any evidence relating to the role of C1 and C2’s biological father I do not accept on balance that the Appellant has stepped into the shoes of the father and therefore reject the claimed genuine subsisting parental relationship.
73. I am reinforced in this conclusion by the silence in the Appellant’s WS regarding his relationship with C1 and C2 and the Appellant’s evident lack of knowledge of C1 and C2 disclosed in the oral evidence at [38] – [45] of Judge Coll’s decision. At [43] – [44] the Appellant did not know what GCSE’s C1 was taking, despite HB claiming that the Appellant helped him with homework, did not discuss C1’s academic performance with HB and did not know what computer games C1 liked, despite it being C1’s ambition to work as a gamer.
74. In terms of C2, again the Appellant was unaware of her sporting pursuits at school, her favourite subjects or her interests.
75. Given this paucity of knowledge, I agree with the previous findings of Judge Coll that the Appellant has disclosed no more knowledge of C1 and C2 than a family friend.
Relationship with RAH
76. In terms of RAH, he is 3 years old, it is undisputed that the Appellant is the biological father, and I have accepted on balance that the Appellant has been living in the same house as RAH since his birth.
77. In submissions, Ms Keerthy relied upon the record of oral evidence in Judge Coll’s decision at [49] to dispute the Appellant’s relationship with RAH. This evidence, it was argued, suggests an inconsistency between the Appellant on the one hand saying that he looked after RAH when HB was at work on Tuesdays and Wednesdays between 9am and 3pm and fed him “sometimes”, and on the other hand HB stating that RAH would only eat from her and would not take food from the Appellant.
78. Whilst this record clearly evidences an inconsistency in feeding RAH, I find no inconsistency in terms of when HB works or in the contention of both the Appellant and HB that the Appellant looks after RAH whilst HB is at work. If it is to be suggested that HB’s evidence of feeding should be preferred, I have considerable difficulty accepting that a 3-year-old child would not be fed at all between the hours of 9am and 3pm twice a week. I find this evidence nothing short of opaque. Again, it is deeply unfortunate that the Appellant did not see fit to clarify with further evidence his involvement with RAH’s day-to-day care. It has not been suggested that HB does not work as claimed, and it has not been suggested in the evidence or submissions before me that HB has access to other childcare or that someone else is responsible for feeding RAH throughout these hours. As such I am at a loss to understand, who the SSHD suggests is responsible for the care of RAH when HB is at work.
79. Ms Keerthy further relied upon the Appellant erroneously stating in his oral evidence that RAH was born at 8pm, when HB said that RAH was born at 6pm following a 14-hour labour. Given the length of the labour, the fact that it would have been dark at both 6pm and 8pm in November, and the small difference of 2 hours, I find that very little turns on this small discrepancy.
80. Judge Coll at [48] further records HB confirming that RAH’s arm was fractured during birth and that she asked the Appellant to check why RAH was making no sound, whilst the Appellant mentioned none of this in his oral evidence. However, I find it wholly unclear from these passages what questions were asked of HB to illicit this response or indeed what question was put to the Appellant such that an adverse inference should be drawn from his silence.
81. Drawing these strands together, given that I have accepted that the Appellant lives under the same roof as HB and it is conceded by the SSHD that the Appellant is RAH’s biological father, and given the familiarity between the Appellant and RAH in the photographs and at the hearing, I find it more likely than not that the Appellant does provide parental care to RAH whilst HB is at work.
82. In submissions, Ms Heybroek relied upon the case of SR (subsisting parental relationship – s117B(6)) Pakistan [2018] UKUT 00334 (IAC) to support her contention that the Appellant enjoys a genuine and subsisting parental relationship with RAH. Ms Heybroek argued that even if I was only satisfied that the Appellant enjoyed limited contact with RAH, I should find a genuine and subsisting parental relationship. In this regard I am mindful of the following passages of Judge Plimmer’s decision, in addition to the factors set out at [42] of RK,
SR
“[35] [……..] The fact that SR has not been involved in making important decisions in A's life does not necessarily mean that he has not developed a genuine and subsisting parental relationship. The nature and extent of that relationship requires a consideration of all the factors referred to in RK at [42]. The child's age is also likely to be a relevant factor.
[36] In SSHD v VC at [42] Macfarlane LJ accepted the submission (recorded at [27]) that the requirement to establish whether "the person has a genuine and subsisting parental relationship with a child" albeit for another part of the Immigration Rules, namely 399(a), contains four elements: "(a) a relationship between the child and the foreign criminal; (b) which is 'parental', rather than of some other kind; (c) the relationship must be 'genuine'; and (d) the relationship must be 'subsisting' (in the sense that it exists or has a real existence)" and that simply to establish biological parentage is insufficient - there must be a genuine existing parental relationship. As Macfarlane LJ observed at [42] "each of those words denotes a separate and essential element in the quality of relationship…" and at [43] "the 'parent' must have a 'subsisting' role in personally providing at least some element of direct parental care to the child".
[40]. I am satisfied that SR has a parental relationship with A and that it is genuine and subsisting for the purposes of section 117B(6)(a). It may be a limited parental relationship but that does not mean it is not genuine or subsisting. SR and A have seen each other on a regular fortnightly basis since February 2018. These are unsupervised sessions that now occur away from a contact centre, in which SR provides A with elements of direct parental care. For that period of time SR is not looking after and directly caring for A in other capacity than as a parent. The independent evidence describing the contact sessions and from CAFCASS support SR's claim that A enjoys contact albeit it is limited given A's age and her mother's reluctance to increase contact. I am satisfied that although SR plays no active role in any significant decision-making regarding A's day to day care and well-being, he has nonetheless developed in recent months a genuine and subsisting parental relationship with her.”
RK
"Whether a person is in a "parental relationship" with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have "parental responsibility" in law for there to exist a "parental relationship," although whether or not that is the case will be a relevant factor. What is important is that the individual can establish that they have taken on the role that a "parent" usually plays in the life of their child."
83. Applying this caselaw to my findings: it is conceded that the Appellant is the biological parent of RAH; I have accepted that the Appellant has lived under the same roof as RAH since his birth; and I have accepted that the Appellant provides direct parental care twice a week whilst HB is at work. Taking into account RAH’s young age, my findings in relation to the Appellant’s interaction with RAH during the hearing and the consistent content of the photographs, I find on balance that this parental care is genuine, that it subsists at the date of hearing and that it is sufficient to meet the test of genuine and subsisting parental relationship as set out in the authorities.
CONCLUSION
84. In the light of my conclusion that 117B(6)(a) is met and the SSHD’s concession that it would be unreasonable for RAH to leave the UK under 117B(6)(b), I find no public interest in the Appellant’s removal. I therefore find that removal would be unlawful under s.6 HRA 1998 and that the Appellant’s appeal is allowed on Article 8 ECHR grounds.
85. For completeness, whilst it is undisputed that RAH is the child of Appellant and HB, and whilst I have accepted co-habitation and a genuine and subsisting relationship with RAH, given the paucity of evidence and vague knowledge disclosed by the Appellant, in the round I am not satisfied that the Appellant has demonstrated on balance that his relationship with HB subsists or that he enjoys any more than a Private Life with HB, C1 and C2.
NOTICE OF DECISION
The appeal is allowed on Article 8 ECHR grounds.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 January 2026

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003091

First-tier Tribunal No: PA/62660/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

AH
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Sadeghi of Counsel, instructed by City Taylor Solicitors.
For the Respondent: Ms Kerr, Senior Home Office Presenting Officer.

Heard at Field House on 31 October 2025

DECISION AND REASONS

INTRODUCTION

1. The Appellant, a citizen of Bangladesh, appeals against the Decision of First-Tier Tribunal Judge Coll, promulgated on 11 May 2025 (“the Decision”), dismissing the Appellant’s appeal against the Respondent’s decision dated 16 November 2023 (“RFRL”), refusing his fresh submissions for LTR dated 28 February 2023.

BACKGROUND

2. In summary, the Appellant entered the UK on 20 November 2006 on a visit visa which was valid until 23 April 2007. On 28 March 2013 the Appellant made a Human Rights claim on Article 8 grounds, which was refused on 25 April 2014. On 8 July 2014, the Appellant made a second Human Rights claim on Article 8 grounds, which was refused on 16 August 2014. On 27 October 2014 the Appellant made a third Human Rights claim on Article 8 grounds, which was refused on 12 December 2014 and on 7 January 2015 the Appellant made a fourth Human rights claim on Article 8 grounds, which was refused on 28 May 2015.

3. On 26 May 2016 the Appellant then made an asylum claim, which was refused on 27 October 2016. The Appellant appealed this decision to the First-tier Tribunal, and his appeal was dismissed on 21 February 2017. The Appellant then successfully appealed to the Upper Tribunal, and on 23 October 2017 his appeal was remitted to the FTT.

4. In March 2018 the Appellant had a match-making meeting in the UK with Mrs Hafsa Begum (“HB”), which was arranged by HB’s mother and the Appellant’s aunt. HB has two children from a former relationship, C1 and C2, who were born on 10 December 2011 and 29 March 2010 respectively.

5. On 23 September 2019 the Appellant’s appeal came before FTIJ Shepherd and in a decision dated 3 December 2019, the Appellant’s appeal was dismissed. In doing so, Judge Shepherd recorded that the Appellant had a wife and children who remained in Sylhet province and made no mention of HB or her children.

6. The Appellant became ARE on 16 July 2020.

7. The Appellant claims that he then divorced his wife in Bangladesh on 25 October 2020 and married HB on 26 June 2021 in an Islamic marriage ceremony.

8. On 19 September 2021 the Appellant made further submissions to the SSHD on Article 8 grounds.

9. On 8 November 2022 the Appellant and HB had a son, “RAH”.

10. On 30 December 2022 the Appellant’s application dated 19 September 2021 was refused with no right of appeal.

11. On 28 February 2023 the Appellant again lodged further submissions on Article 8 grounds, and on 16 November 2023 the SSHD refused this application with a right of appeal (the “RFRL”). It is this RFRL which was the subject of the appeal before FTIJ Coll.

Decision of FTIJ Coll dated 11 May 2025

12. At [11] of the Decision, Ms Jones on behalf of the SSHD conceded that RAH is the biological son of the Appellant. This concession was predicated upon the reliability of RAH’s birth certificate, as contained at SB [65].

13. At paragraph [13] FTIJ Coll notes the 2019 findings of FTIJ Shepherd and at [14], identifies the following matters as being in dispute:

• Whether HB met the partner definition under Gen 1.2 of Appendix FM, whether the Appellant’s relationship with HB was genuine and subsisting, and if so, whether EX1(b) was met.
• Whether the Appellant enjoyed a genuine and subsisting parental relationship with C1 and C2, and if so, whether EX1(a) was met.
• Whether the Appellant enjoyed a genuine and subsisting parental relationship with his biological son RAH, and if so, whether EX1(a) was met.
• The s.55 best interests of the three children.

14. At [18 – 20] the FTIJ invoked Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702 and set out its relevant principles.

15. For the purposes of the pleaded grounds before me, in summary, Judge Coll made the following findings or fact:

• At [21 – 22] That the witness statements of the Appellant and HB are “virtually identical” and “vague and devoid of detail”; that the Appellant’s evidence was not “entirely credible; and that HB’s evidence was not “entirely credible about any aspect of her relationship with the Appellant”.

• At [23 – 28] That the divorce certificate is not authentic or reliable and that the Appellant is still married to his first wife and in contact with his adult sons in Bangladesh.

• At [29] That the Appellant in oral evidence gave the wrong date for his Islamic marriage to HB.

• At [30 – 33] That the Appellant and HB have not lived together at any time.

• At [34] That the Appellant’s marriage to HB was not important to either HB or the Appellant “save for its significance to the Appellant’s immigration claim”.

• At [35 (a) – (e)] that the Appellant’s and HB’s answers to questions about “topics upon which a cohabiting couple would have given essentially the same answer for most of the topics, if not all”, were inconsistent.

• At [36] “The Appellant knows very little about Mrs. Hafsa Begum. Mrs. Hafsa Begum, albeit highly articulate, knew little about the Appellant”.
• At [37] “For all the reasons set out above, I find that the relationship between the Appellant and Mrs. Hafsa Begum is not genuine and subsisting which includes whether they have lived together for the required period in a situation akin to marriage or civil partnership”.

• At [38 – 45] The Appellant and HB were inconsistent in respect of the Appellant’s relationship with C1 and C2; the Appellant did not know anymore about C1 and C2 than a family friend would do. As such the Appellant did not have a genuine and subsisting parental relationship with C1 and C2.

• At [46 – 52] Whilst RAH’s ability to speak and his character and personality have not developed yet; the Appellant knew nothing about key facts such as the birth process and eating preferences. As such the Appellant does not have a genuine and subsisting parental relationship with RAH.

• [50] “The Respondent has placed very great weight on the birth certificate and accepted that the Appellant is the biological father of Rabbih. I cannot go behind that finding, but I bear in mind that council employees make few if any checks during the process of registration of a birth. I accept that the Respondent cannot compel an Appellant to undertake paternity testing for himself and any alleged biological child. I also accept that once the Respondent accepted the birth certificate as sufficient evidence, the Appellant would not have considered whether paternity testing could be beneficial.”

• At [53] EX1(a) does not apply because the Appellant does not have a genuine and subsisting parental relationship with any of the children.

• At [54] it is in the best interests of the children to remain in the UK with their mother HB.

• At [55] the Appellant’s family would be willing and able to support the Appellant emotionally and financially on return until he has resettled in Bangladesh.

• At [56] the Appellant had a wife and sons in Bangladesh as recently as 3 December 2019; the Appellant remains married to her; and the Appellant remains in contact with his adult sons.

• At [58] there are no very significant obstacles to the Appellant’s integration in Bangladesh.

• At [59 – 60] Article 8 (1) is not engaged, but in the alternative removal of the Appellant is proportionate.

GROUNDS OF APPEAL AND GRANT OF PERMISSION

16. On 28 August 2025 Upper Tribunal Judge Hoffman granted the Appellant permission to appeal to the Upper Tribunal on four grounds of appeal without restriction.

17. In summary, the four grounds of appeal argue as follows:

“Ground 1: Failure to consider documentary evidence before her”

• In finding that the Appellant had only provided evidence of co-habitation relating to 2024 and 2025, Judge Coll failed to take into account RAH’s birth certificate dated 25 November 2022 and evidence from Universal Credit relating to 2023, which confirmed the Appellant’s and HB’s co-habitation.
• The FTIJ irrationally gave little weight to the other evidence of co-habitation before her.
• The FTIJ irrationally found that the Appellant could have used his expired passport to register his name on joint bills.

“Ground 2: Assessing evidence in a vacuum”

• The FTIJ unlawfully assessed the credibility of the Appellant and his partner and the extent of their knowledge of each other, “based entirely on her own perspective of what she considered important”.
• The FTIJ found the paucity of wedding photographs surprising and yet it was the Appellant’s evidence that photographs had been submitted by his previous representatives.

“Ground 3: Divorce declaration”

• The FTIJ’s conclusion that the declaration of divorce was not authentic reveals an impossibly high standard of proof.

“Ground 4: Inconsistent findings as regards the Applicant’s relationship with his biological child”

• The FTIJ inconsistently found that the Appellant did not have a genuine and subsisting parental relationship with his biological son, but on the other hand, concluded that the Appellant did have such a relationship when considering Article 8 outside the rules.

18. In a rule 24 reply dated 2 October 2025, the SSHD argued that the FTIJ had considered all of the evidence; that the impugned findings of fact were made in the wider context of adverse credibility findings and as such, any errors made out were not material; the FTIJ was evidently making alternative findings when considering Article 8 outside the rules.

19. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.

ERROR OF LAW HEARING

20. At the outset of the hearing, the parties confirmed that they had before them a stitched Upper Tribunal hearing bundle consisting of 361 pages.

21. Upon hearing submissions from Mr Sadeghi and Ms Kerr, I indicated that I would reserve my Decision and provide that in writing with my reasons. I now set out my reasoning and Decision as follows.

DISCUSSION

Ground 1

22. The first point taken under ground 1 is that the FTIJ failed to take material evidence into account, which identified the Appellant and HB as living together at Nevitt House before 2024. This included RAH’s birth certificate, dated 25 November 2022 (SB [65]), and a Universal Credit letter relating to the period between 3 November 2023 to 2 December 2023 (SB [709]).

23. When considering whether a Judge has failed to take evidence into account, I am mindful of the guidance in Volpi [2022] EWCA Civ 464 at [2(iii)]:

“an appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration,”

24. When considering the duty upon a Judge to make reference to evidence in their decision, I note the Presidential guidance in QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC):

“(3) What the case law reveals is that the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.”

25. However, for the following reasons I find compelling reasons for concluding that FTIJ Coll did not take the birth certificate and Universal credit letter into account when considering co-habitation. Equally, I find in the light of the probity of this evidence to the issues of co-habitation and family life, it was incumbent upon Judge Coll to explain why the thrust of this evidence did not lead her to reach a different conclusion.

26. In terms of the documentary evidence considered by Judge Coll when rejecting co-habitation, at [32] the FTIJ identifies two utility bills dated May and December 2024 (at SB [90] and [92]), evidencing the Appellant’s and HB’s co-habitation at Nevitt House. However, at [33] the FTIJ erroneously finds that these utility bills are the “only evidence provided of co-habitation before 26 February 2025”. Regardless of the merits of these 2 documents, I find that this is clearly a mistake of fact arising from a failure to take the contents of the birth certificate and Universal Credit documents into account.

27. When considering the materiality of this error, I note that at paragraph [11] the SSHD conceded the Appellant’s paternity of RAH singularly upon the reliability of the birth certificate. I find nothing in the Decision, the RFRL or the Review to suggest that the SSHD in any way impugned the birth certificate in terms of its form or content.

28. During submissions, I asked Ms Kerr whether the birth certificate had been challenged by the SSHD at the FTT. In reply, Ms Kerr stated that the SSHD does not dispute birth certificates. Contrary to this submission, Ms Kerr then invited me to take Judicial notice that little evidence was required to register a child.

29. The inherent difficulty with this submission is that first, it was not argued before the FTT that the birth certificate was an unreliable document and second, I do not understand the SSHD’s rationale in distinguishing between the reliability of separate statements of fact within the birth certificate, in circumstances where she now states that “little evidence” was provided to the registrar. Ultimately, none of this was aired or considered at the FTT.

30. Whilst I note that Judge Coll at [50] remarks that “council employees make few if any checks during the process of registration”, nonetheless Judge Colls confirms that she is unable to go behind the SSHD’s concession made in the light of the “very great weight” placed upon the birth certificate by the SSHD. In any event, I find that paragraph [50] does not address the co-habitation evidence within the birth certificate in any way.

31. I therefore find in the absence of any challenge to the birth certificate by the SSHD that it was incumbent upon Judge Coll to explain why the thrust of the birth certificate did not lead her to a different conclusion at [33]; where it was found that the Appellant and HB had not co-habited “for any period”.

32. Whilst I recognise that co-habitation with HB in November 2022 will not assist HB in meeting the partner definition under Gen 1.2 (given that the Appellant’s application was made on 28 February 2023), if the Appellant was living with HB in November 2022 when RAH was born, this is evidently material to the FTIJ’s rejection of family life at [59] in circumstances where the Appellant’s paternity of RAH is undisputed.

33. I have further considered Ms Kerr’s submission that whether Judge Coll was alive to the contents of the birth certificate or not, in the light of the myriad adverse credibility findings against the Appellant, it would have made no difference to the outcome of this appeal.

34. In this regard, Laing LJ at [43] of ASO [2023] EWCA Civ 1282 identified the correct test to be followed as:

“Whether it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion'.”

35. Contrary to Ms Kerr’s able submissions, I find that the other adverse findings in the Decision were not reached in a vacuum, but rather in the round with a rejection of co-habitation at any time. A finding which arose – at least in part – from a failure to reconcile unchallenged evidence with material findings of fact. I am therefore unable to accept that any rational Tribunal would inevitably have reached the same conclusion as Judge Coll.

36. Whilst on its own, I would not have found the failure to consider the Universal Credit letter to have been capable of materially affecting the outcome of this appeal, when considered in conjunction with the failure to consider the unchallenged birth certificate, my conclusions on the materiality of ground 1 are reinforced.

CONCLUSION ON ERROR OF LAW

37. For the reasons above, I find that the Decision of the First-tier Tribunal discloses a material error of law and must be set aside. I find that the Judge failed to take material evidence into account which necessarily infects the other findings of fact. As such, it is unnecessary for me to go on and consider grounds 2 – 4.

38. I make clear that the grounds of appeal do not challenge the accuracy of the record of evidence set out within the Decision, as such I find that the record of oral evidence is preserved.

DISPOSAL

39. I have carefully considered the parties’ competing submissions for and against remittal of this appeal to the First-tier Tribunal, including the Appellant’s indication that he intends to make a limited rule 15(2A) application to adduce a divorce certificate from Bangladesh. In this regard, I am mindful of the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) that the general principle is for cases to be retained in the Upper Tribunal for remaking. In circumstances where there is no suggestion of procedural unfairness in this appeal and where I have preserved the record of oral evidence, I find it appropriate to retain this appeal in the Upper Tribunal for remaking.

NOTICE OF DECISION

1. The Decision of First-tier Tribunal Judge Coll dated 11 May 2025 involves the making of an error of law.

2. I set aside the Decision and all findings of fact but preserve the record of oral evidence.

3. The Appellant’s appeal is adjourned for re-making in the Upper Tribunal at Field House before any Upper Tribunal Judge with a time estimate of 3 hours.

4. A Bengali Sylheti interpreter is required.

5. The Appellant is at liberty to submit a rule 15(2A) application with updated evidence contained in a single consolidated hearing bundle, no later than 14 days before the relisting of this appeal.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 November 2025