Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003169
First-tier Tribunal No:
PA/59474/2023
LP/09207/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th August 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

AD
(Anonymity ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Ms Sonya Kalyan, counsel instructed by Migrant Legal Project
For the Respondent: Ms Sian Rushworth, a Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 19 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court. The parties are entitled to apply on notice to vary this direction.

DECISION AND REASONS
Introduction
1. The Appellant is a national of India. In this matter I am remaking the decision following the Upper Tribunal concluding that there was a material error of law in the decision of the First-tier Tribunal which had dismissed the Appellant’s appeal.
2. The hearing before me is to consider Article 8 of the European Convention on Human Rights.
The Documents Before Me
3. The Appellant relied on a large bundle comprising 1529 pages. The bundle was far too large and did not need to contain as many documents as it did because many were not in fact referred to during the hearing. I therefore invite the Appellant’s solicitors to be much more selective in future cases to limit the size of the bundle. In addition, there was a separate 120 paged bundle filed with a Rule 15(2A) application by the Appellant. The Respondent did not object to the Appellant’s Rule 15(2A) application which was made on the basis that this was new material since the original hearing and that the new material would assist in the remaking decision. I allow the Rule 15(2A) application and admitted this additional bundle of 120 pages into evidence.
4. The Appellant also relied on a medical report sent separately from the bundle dated 7 May 2026. Dr Jenniger Doughty states that [Andrea]i takes Sertraline for mood and Propranolol for anxiety alongside medication for thyroid and for cardiovascular and bladder health. Urology and hearing issues are also referred to. Dr Doughty said, “I am completing this from notes, as [Andrea] and I have not met for some time now”. [Andrea] said that the impact of potential immigration would severely increase her anxiety.
5. I was provided with a skeleton argument from Ms Kalyan dated 19 May 2026 on the day of the hearing. Ms Rushworth relied on a skeleton argument drafted by Mr Wain dated 14 May 2026 and provided to me on the day of the hearing.
The Issue For Me to Decide:
6. Ms Kalyan states in her skeleton argument that:
“The sole issue for determination is therefore whether the Respondent’s decision constitutes a disproportionate interference with the Appellant’s and his family members’ right to respect for family life pursuant to Article 8 ECHR. “
The Procedural History
7. The Appellant had made an international protection and human rights claim but it had been refused by the Respondent. The Appellant had appealed against the Respondent’s decision.
8. The appeal proceeded to hearing. First-tier Tribunal Judge Hayball had dismissed the Appellant’s appeal on 20 February 2025. The Appellant had sought permission to appeal against that decision. Permission to appeal was refused by the First-tier Tribunal. On a renewed application, permission to appeal was granted by Upper Tribunal Judge Hoffman by way of a decision dated 13 August 2025 on limited grounds.
9. Following an Error of Law hearing on 16 December 2025, Upper Tribunal Judge Owens ordered by way of an order sealed on 18 February 2026, that the Article 8 ECHR matter be remade at the Upper Tribunal.
10. There were preserved findings as follows:
“There is no real risk of serious harm to the appellant in India as a result of the difficulties he had in relation to his arranged marriage. The appellant can access state protection in India. The appellant can reasonably and safely relocate to another area in India. There is no Article 3 medical claim. The appellant has family life with his partner [Andrea] and Article 8(1) is engaged [44].”
11. Upper Tribunal Judge Owens set aside the First-tier’s Tribunal’s decision in respect of Article 8. However, the First-tier Tribunal’s decision dismissing the appeal protection and Article 3 grounds was maintained.
12. None of the findings in respect of Article 8 ECHR were preserved and the matter was then adjourned to be listed for a remaking hearing. That was the hearing before me.
The Hearing Before Me
13. At the hearing before me I had heard evidence from the Appellant and his witnesses. I provide a summary of their evidence. It is not necessary or proportionate to refer to all of their evidence.
14. When assessing the evidence of the Appellant, I have in mind the Appellant’s vulnerability. I note Dr Battersby’s report. Whilst curiously the Appellant’s then counsel did not seek to rely on vulnerability at the First-tier Tribunal in 2025, I do so in view of the expert report which states there ought to be breaks during cross examination and with no ‘rough’ cross examination. I take into account the effect that vulnerability has on witnesses, over and above the usual difficulties witnesses face in a court setting and the nerves that brings. I also apply vulnerability to the Appellant’s partner. She has various ailments which call for care in assessing her evidence too.
15. As the Court of Appeal made clear in OM v Secretary of State for the Home Department [2025] EWCA Civ 1585 the Guidance is guidance and not a rule of law. For the avoidance of doubt, I have treated the Appellant and his partner and as vulnerable witnesses and I have made every allowance when considering their evidence and before making my findings.
16. The Appellant relied on his witness statements. The first main one is dated 12 July 2024, the second dated 8 May 2026 (in the 152A) bundle.
17. The Appellant’s first witness statement dealt mainly with the protection issues, but those have already been dismissed. I note in particular paragraph 19 of the Appellant’s 12 July 2024 witness statement which states as follows:
“I have now been living in the UK with Andrea since April 2022. Our relationship started in 2006 – we met on New Year’s Eve in Turkey. We became separated because of the collapse in the business in 2019 so we were separated for about three years. In that time, we stayed in touch almost daily on whats app. It was a very traumatic time for us and we never imagined we would ever be able to live together again. It seemed impossible. I didn’t tell Andrea what was happening in India. I would just say there was a family problem as I didn’t want to upset her. When I arrived in the UK on 12/02/2022 I was detained by customs and then moved me to a hotel in Hackney. After calling Andrea I was given permission to reside with her and I have been living with Andrea since April 2022. Our relationship resumed as if we had never been parted. The relationship with Andrea is very strong, I’ve been part of her family for many years, including her two children and brother who accept me as her partner. Our relationship can’t continue overseas as Andrea has many ongoing medical issues.”
18. In his 8 May 2026 witness statement, the Appellant explained that:
“I find it difficult to explain my mental health problems because in my culture these things are not openly spoken about. Growing up, mental health was seen as something shameful. Because of this, I have always tried to hide my struggles rather than ask for help. Andrea has helped me change the way I see this. She understands when I am struggling and encourages me to seek medical help and speak openly instead of keeping everything inside. When I become overwhelmed, Andrea calms me down and reassures me. She sits with me, talks things through with me and helps me think rationally again when my mind starts spiralling.
10. A recent example of this was when we received the hearing date for this appeal. I became extremely anxious and started imagining the worst possible outcome. I could not think clearly and felt completely hopeless about the future. Andrea sat with me for hours reassuring me and helping me focus on what needed to be done, including gathering my medical evidence and preparing my statement.
11. Without Andrea’s support, I genuinely believe my mental health would deteriorate significantly. I do not think I would cope emotionally if we were separated.
12. Andrea also relies heavily on me because of her own physical and mental health problems.
13. I attend her GP and hospital appointments with her because she struggles badly with anxiety and panic when travelling or attending appointments alone.
14. I support her before, during and after medical treatment. When she has procedures or appointments, I make sure she gets home safely, rests properly and takes her medication.
15. This is not occasional help. Supporting one another has become part of our daily life and routine together.
16. On 03/10/2024 Andrea underwent surgery at Practice Plus Hospital, including a hysterectomy and vaginal anterior prolapse repair. After she was discharged, she was placed on bed rest and was unable to lift anything or move around properly for some time.
17. During this period I did everything for her. I prepared all her meals, helped her move around the house, assisted her with toileting because she could not walk properly on her own, and carried out all household chores while she recovered. 18. I did this because I love her and because caring for each other is simply part of our relationship.
19. Andrea’s family have also become my family. Her sons have accepted me completely and made me feel loved and welcomed.
20. Her son Trent and his partner recently had a baby boy called Lincoln. They live nearby and I see them very regularly. Being part of Lincoln’s life means a great deal to me.
21. I am honoured that they see me as Lincoln’s grandad. It makes me incredibly happy to feel accepted as part of the family and I hope I will be able to watch him grow up and continue being part of his life.
22. The thought of losing all of this is extremely painful for me.
23. It has been suggested that Andrea and I could maintain our relationship through phone calls or social media. I do not believe this is realistic in any meaningful sense.
24. Our relationship depends on being physically present for one another every day. The support, reassurance and care we give each other cannot be replaced through messages or video calls.
25. It has also been suggested that Andrea could relocate to India. I do not believe this would be realistic or fair.
26. Andrea has complex medical needs and ongoing treatment in the UK. Her anxiety also makes travelling and unfamiliar situations extremely difficult for her.
27. I would not be able to provide stability for her in India. I have no financial security there and no realistic means of establishing a home for us.
28. My parents are elderly and unwell and are not in a position to support us financially or practically. My brother already supports them financially and would not be able to support me as well.
29. I would most likely have to try to find low-paid manual work without any real support network. We would also have no ability to afford private healthcare for Andrea. 30. I also believe Andrea would feel isolated there. Because of our age difference and because she is foreign, I do not believe our relationship would be accepted by parts of my wider family or community.
31. Returning to India would therefore mean losing the emotional support, safety and stability we currently have in the UK while also facing uncertainty and hardship.
32. I now consider Andrea’s family to be my own family. The support, acceptance and love they have shown me means more to me than I can properly express.
33. If I were forced to leave the UK, I would lose not only my partner but the family life and support system that has become central to my wellbeing and stability.
34. I hope in the future to be able to work, support Andrea properly and give something back to her and her family for everything they have done for me during these difficult years.
36. If I had to leave the UK, I would struggle with my mental health and I do not believe I would be able to cope without her.”
19. In cross examination the Appellant said that he applied for a visa when he was in Turkey but it had been refused. He was asked if he had entered the UK unlawfully. He said it was genuine work through an agency. He was asked if he knew from the start he had no right to work in the UK. He said he could not go back to India. He said he had chosen to come to the UK when he got the job. He was asked if Andrea knew he did not have leave to remain in the UK. He said she did not. He said he had to quarantine in the UK. He had been allowed to make a telephone call. He told Andrea he was in the UK. He said he did not say anything about his immigration status. He said he had lived in Turkey for around 16 years.
20. The Appellant agreed that Andrea had experience of living abroad when they were both younger. The Appellant said that when he left Turkey he went to India. He said he had remained in contact with Andrea over the telephone. The Appellant said that he was getting ‘lots’ of medical treatment and he has depression. He said they could not support each other over the telephone. The Appellant said that Andrea had an operation in 2204 and since then her health has improved was not true as it was being monitored. He said Andrea still has lots of appointments with reference to audiology. There was a tumour in the right ear. Pressed, he said that Andrea was deemed to be fit for work on reduced hours. He said that he thought Andrea worked 2 days in a bar for 10 to 12 hours. He also said it was a restaurant.
21. The Appellant said that treatment was available in India but it was privately paying and he could not afford it. It was put to the Appellant that because he had intended to work in the UK if permitted to remain, then why was it he could not work in India. He said he had a seaman’s licence. He said he had always wanted to be in the merchant navy because he loves the sea. He said instead he would have to do low paid manual work because he was not a professional to work on land. He said he had no qualifications to do an office job. Asked why he could not do any job in India, the Appellant said “I wish to be with her” referring to Andrea. He said they shared a lot of emotion and support each other. In respect of his seaman’s licence, he said it was hard to find a job “unlike before”.
22. The Appellant was asked why he had stopped was because he was with Andrea and he then started a business in India.
23. The Appellant said that they had a beach front restaurant and he had been working at the front manager. Andrea was mainly getting the shows ready and there was reference to ticket agents. Asked why he could not work in a restaurant again the Appellant said that his parents live with his brother and he might not let the Appellant in because of Andrea of whom the family disapprove due to age differences. The Appellant said he had spoken to them about this when he was in Turkey.
24. The Appellant said that Andrea does not own a home in the UK. The Appellant said that he feels isolated in the UK because he cannot work. He said he could not find treatment in India for his mental health. He said he would prefer to stay in the UK with Andrea. The Appellant was asked if aside from that whether there was any reason that was stopping him going to India. He said the reason was that they did not have “anything financial”.
25. The Appellant was asked about the Respondent’s Voluntary Returns Scheme. The Appellant said that his lawyer had spoken to him about it.
26. The Appellant was asked if Andrea was unwilling to go to India whether there was a reason why he could not go there temporarily. He said he could not because he was physically in the UK and that “it was better to do my immigration here”. He was asked the question again by Ms Rushworth and he said, “I am physically here now”.
27. The Appellant was asked why there was any reason why he could not apply for entry clearance from India and he said he did not know what the time periods were.
28. In re-examination the Appellant said that he had last spoken to his parents about Andrea when he was in India. He said more generally he had spoken with his family a week before this hearing. He said that his parents were not aware of the relationship that he has with Andrea. Asked why he had not raised the relationship with them, the Appellant said that it was to do with the age difference. He said they will say “you can live like that, but not in our family”.
29. Asked what his family thought he was doing in the UK, the Appellant said that his family know that he has immigration problems.
30. The Appellant said that he does not talk to his family about his mental health or his partner’s mental health. He said he just has a “normal” conversation with them. Such as what he had for lunch. He said it was shameful to speak about mental health. He said that they know he is not allowed to work. He said he did gardening and jobs at home and referred to cleaning. He said he speaks with his family in India every week. He said “I speak to mum. I do not speak much to dad”. He said they call him on his mobile phone and they had never spoken to Andrea.
31. Andrea then provided evidence. She referred to her original witness statement dated 12 July 2024 at page 198 of the 1590 paged bundle. She also relied on her statement age page 32 of the 120 paged bundle dated 8 May 2026. She said she was deaf and said that her hearing aid batteries were low She therefore moved closer to Ms Kalyan and I ensured that the court room was set up so that she could see who was asking questions and was sitting close to them.
32. There was no additional examination in chief. In cross examination the witness said that she knew from when the Appellant arrived in the UK that he did not have permission to remain long term. She said that her ultimate hope was that he would be allowed to stay. She said she had stayed in Turkey for around 15 to 16 years. She was asked about the different laws and a different country but she said it was different circumstances. Asked why she could not go to India, the witness said that there were financial reasons because she had money in Turkey and she has got older and has medical problems. She had a business in Turkey at that time.
33. She said she had a whole way of life before she met the Appellant and she had lived with her 2 children initially.
34. In relation to medical issues, she was asked if since operation in 2024 her health has improved. She said she was just being monitored and was being treated in respect of her hearing. She said she has a small tumor in her right ear. It requires yearly monitoring by scan and her head is scanned to see if it has grown. She said she also has urinary problems for which she was being investigated for. She said the urology problems might need surgical intervention but “they” were not sure until concrete rests had taken place. She said there were also mental health problems. She said they had got worse in 4 years.
35. When Andrea was asked whether treatment was available in India. She said there was probably, “ …but I have no money now”. She said she lives in rented home and I cannot generate money. She said she would have to provide everything. As for returning to the UK for treatment, she asked how she could pay for it.
36. The witness was asked about being deemed fit for work. She said she was on reduced hours. 10 hours. She said she had been working 20 hours and with anxiety and depression but had to be ‘happy and smiley’ to the general public. She said her employers had been “really good” and so she works less hours. Asked if her mental health might improve if these proceedings are resolved but she said it would not because the application might be refused. She said , “I cannot speak for what will happen in future with my mental health. I cannot say. I am sorry”.
37. Asked if the Appellant was able to work in India and if the Voluntary Returns Service money from the Home Office would assist to access medical treatment in India, the witness said that the Appellant told her that the £3000 was not guaranteed. She said they would need a home and all of the expenses. She said it would need a well-paid join in India which the Appellant did not have.
38. The witness said that when she left Turkey, she had come to the UK and the Appellant had gone back to India. She said that they had maintained contact over the computer. Asked why that would be unreasonable now, the witness said that they had left Turkey because the business was failing there. There has been an effect on tourism. She had cashed in her pensions. The witness said that she had left Turkey a year before the Appellant and she had left him to run the business and sold the business at a ‘massive loss’. She said he then had to go back to India. She said although they continued a correspondence, she did not consider it to be a full-on proper relationship even though she loved him and it was purely an online correspondence. They would speak daily but it was ‘not the relationship we previously had’. She said, “It was a correspondence and someone you talk to and not the same as being with someone”.
39. It was put to the witness that she has experience of running a business and why it was that she could not use that experience in India. She said she did not speak the language. It was put to her that tourists are English or European. She said she was older than she previously was. She said “With health and various things going on. I do not feel I would be able to run a business or to work. Tourism is not a 9 to 5”. She said it would be impossible for her.
40. Asked why the Appellant could not apply temporarily go to India and make an application for entry clearance She said re-entry was not a guarantee and it would be devastating for her if he could not.
41. In her witness statement the witness said that she gets lots of help from the Appellant including that he prepares her medication for her in the mornings and assisted her to recover after the operation in 2024. She said it was overwhelming to think about travelling abroad and indeed even within the UK. She gets severe anxiety even thinking about it.
42. There was no re-examination. In response to my questions for clarification the witness said that the Appellants parents live on their own in Kerala, India. They had not worked for some years. The Appellant has a brother who lives in India. He has no other siblings. She said that the Appellant’s mother and father speak to the Appellant on the telephone. She said she did not know what he tells them. She said the Appellant did the housework at home and did the gardening and walked the dogs. She relaxed before going to work. She said there was a little baby across the road and she would go to see him across the road. The witness said that the Appellant did not have friends in the UK. He had some friends in Turkey and other friends in India. She said the Appellant keeps in touch with his brother.
43. The third and final witness to give evidence was Andrea’s son. I shall call him Trent for reasons of privacy. He referred to his witness statements at pages 114 to 116 and page 231 of the large bundle. The witness said that his partner lives at the same address as him and works self employed in a modelling agency.
44. I had heard closing submissions from each of the advocates and I had considered their skeleton arguments. I refer to those written and oral submissions as necessary within my consideration and analysis.
45. There is a substantial amount of medical evidence in this case. It is not proportionate or necessary for me to set it out all out. I refer to parts only. There were numerous pages of medical notes. I was not taken to many during the hearing.
46. I have been provided with a screenshot of prescriptions from the NHS App showing that as of April 2026 Atorvastatin, mirtazapine, metformin and dapagliflozin were prescribed. Dr Ralphs made a referral to the sleep clinic. There is also reference to “talking therapies” being available around Bristol. Mirtaz had apparently helped with sleeping. But he said, “can’t go back to my country”. There was no active suicidal ideation at page 14. Blood pressure readings were said to be high. The Appellant was a smoker and dinks alcohol.
47. Ms Kalyan referred to other medical evidence in her skeleton argument including that in his updated witness statement, the Appellant describes ongoing anxiety, depression, severe sleep disturbance and emotional deterioration arising from the uncertainty of his immigration position and the prospect of separation from Andrea. The Appellant’s GP records confirm continuing prescription medication including Mirtazapine and ongoing mental health difficulties.
48. Andrea’s evidence is said to demonstrate ongoing medical problems requiring NHS intervention and monitoring, including:
(a) ENT and audiology treatment;
(b) ongoing urological investigations;
(c) repeated colposcopy and gynaecological monitoring;
(d) histology investigations;
(e) reduced fitness for work; and
(f) ongoing medication and specialist follow-up.
49. I had reserved my decision.
The Law
50. There is no real difference between the parties in terms of the applicable legal principles. Ms Kalyan correctly refers to the structured proportionality assessment pursuant to Article 8 ECHR and Part 5A of the Nationality, Immigration and Asylum Act 2002. It is accepted by the Appellant in Ms Kalyan’s skeleton argument that he cannot satisfy the requirements of Appendix FM.
51. Ms Kalyan states thought that,
“However, as confirmed by the Supreme Court in Agyarko v SSHD [2017] UKSC 11 at [47]-[60], the fact that an individual cannot satisfy the Immigration Rules is not determinative of the Article 8 assessment. The Tribunal must still consider whether refusal would result in “unjustifiably harsh consequences” such that removal would be disproportionate.”
“Whilst Parliament has directed that weight must be attached to the maintenance of effective immigration control under s.117B(1), the Supreme Court in Rhuppiah v SSHD [2018] UKSC 58 confirmed that the “little weight” provisions in s.117B(4)-(5) are not rigid or automatic rules. At [49]-[53], the Court made clear that a degree of flexibility remains and that compelling factual circumstances may justify the attachment of greater weight to family or private life notwithstanding precarious or unlawful immigration status. The Tribunal is invited to adopt the balance-sheet approach endorsed by the Supreme Court in Hesham Ali v SSHD [2016] UKSC 60.”
Consideration and Analysis
52. I remind myself of the vulnerability of the Appellant and Andrea in terms of their evidence and as stated above, I make every allowance for that when I assess their evidence.
53. My impression of the witnesses was that the Appellant genuinely wishes to be with Andrea. He has a good life living with her in the UK doing the gardening, walking the dogs and doing the housework. I get the impression he feels he has left his life in India behind and does not wish to return to it. He has worked hard as a seaman and as a restaurant manager at the beach restaurant in Turkey. My impression of Andrea was that she has worked very hard in her life both in the UK and in Turkey. She seeks to deal with her anxiety and depression and genuinely likes having the Appellant around to assist her. My impression of Trent was that he loves his mother and that living across the road from her helps him and her. He has two children, one a baby and he has his partner. He sees Andrea everyday because she visits him and the baby. Trent likes the Appellant and sees the good relationship that he and his mother have. I will not be surprised if the Trent’s children did not like the Appellant.
54. It is a feature of this case that the “worse” the medical situation for the Appellant and Andrea, the “better” the Appellant’s argument and case become. It is therefore perhaps not surprising that there were attempts by the Appellant, in particular, to suggest that things will be worse in India than they might actually be and if there was a separation than might actually be the case. An example o this is the previous decision in respect of the findings relating to the Appellant’s protection claim. I refer to this further below.
55. I accept that the Appellant has age related medical ailments such as his cholesterol and high blood pressure issues for which eh receives medication. He has sleep problems with a referral to the sleep clinic. He has been receiving assistance for his mental health and thankfully he has now shown suicidal ideation although he does question if live will be worth living if he has to return to India.
56. This case was not advanced before me on a clear J v SSHD [2005] EWCA Civ 629 basis. In any event, even if it had, there is simply no evidence to show the same in is met in any event.
57. The Appellant’s parents live in Kerala in India. His brother lives in Dubai. The Appellant has friends in India and also in Turkey where he lived for very many years running a business with Andrea when he as the breach restaurant manager. The Appellant told me he loves the sea and worked for many years as seaman. He works now at Andrea’s house doing gardening and assists around the house. He is educated and speaks English to a very high standard. He has skills and would prefer not to do manual or unskilled jobs. It is not surprising he does not wish to do so such jobs because he has worked in high level work in the past and has much experience.
58. Andrea has worked hard in her life and has raised her children who are now adults. Trent is one of her children and he lives across the street from Andrea. Trent lives with his partner and they have 2 children. One is a teenager who has disabilities and for whom they receive state benefits which were set out in a document at pages 118 to 120 of the new bundle. The couple also have a newborn. I can see the real pleasure that Andrea gets from seeing her grandchildren and the support she gets from that and from her son and daughter-in-law. It is pleasing to see the family get on so well.
59. Andrea impressed me with wanting to try to do the right thing but said she felt constrained by her medical ailments and did not know how she could live in India. The further issue was that the Appellant’s parents did not appear to know about their son’s relationship with Andrea who is older than the Appellant. They are said to be likely to disapprove of the relationship for that reason. My view is that Andrea is torn between wanting to have the Appellant around her but she has her own life in the UK in the house she is familiar with and with her son and grandchildren just across the street. She does not wish to live in India.
60. Devalseelan applies and so the findings made in 2025 are a staring point. The findings in respect of the protection claim were preserved and I take into account that the protection claim was dismissed by the First-tier Tribunal following the hearing in February 2025 in the following terms:
37. When considering and weighing all the evidence in this case (including that covered above) and taking matters in the round (including the relevant country background information) I do not consider that the Appellant has demonstrated that the non-state actors he fears could or would likely relocate him away from his home area in India primarily given the size of the country (in terms of land mass and population numbers) and where no evidence has been provided to me that a centralised registration now exists such that persons would even be able to pay or otherwise corrupt officials or the police to reveal his location.
38. Although the Appellant says that his parents may tell those seeking to persecute him of his location in India (if he were to return), given that the Appellant has confirmed in his Asylum Interview at Question 45 (page 1410 of the stitched bundle) that his mum and dad (and a few cousins) have not turned against him and he still trusts his mum and dad then, I do not consider that the Appellant has demonstrated this to be likely. Therefore, I do consider that the Appellant can safely relocate elsewhere in India and including to Goa as suggested by the Respondent.
39. I turn then to consider whether any relocation would be reasonable or, would it be unduly harsh on the Appellant.
40. Whilst I accept that the Appellant has demonstrated that some of his family may not be supportive of his return (including his uncle who is said to helped arrange the previous marriage and now is said to side with the aggrieved family), as outlined above, he still has trust in his mother and father. Whilst the Appellant says he doesn’t speak Hindi, he does speak Malayalam and which is an officially recognised language of India. He also speaks English, has learnt Turkish and has previous work experience in the maritime industry as well as owning and helping to run a bar in Turkey when previously living and working there for many years. I consider that these particular skills and attributes may be particularly useful in an area such as Goa which is frequented by tourists and which would mean the Appellant would have potentially good work prospects. I also do not consider that the Appellant has demonstrated that his mother and father or his partner in the UK would not be able to support (or partially support) him and when the likely day to day living costs in India are likely to be less than in the UK.
41. Although the Appellant has lived away from India for long periods, it is the country of his birth and where he lived for many years of his life and so he is likely still familiar with many of its cultures and practices. The Appellant has also regularly visited India whilst working in the maritime sector and could apply for a grant of up to £3,000 in financial support under the Voluntary Returns Scheme. I also consider that it is likely that the Appellant could access any required medical treatment or prescribed medication he may require in India and indeed at the hearing the Appellant concluded that this would likely be available. Albeit, that it may need to be obtained privately and therefore not likely publicly funded in all cases. I therefore conclude that the Appellant has not demonstrated there are any very significant obstacles so that his relocation inside India and such that it would be unduly harsh.”
61. The Respondent provided evidence in her skeleton argument and referred this further at the hearing that the medication required by the Appellant and indeed by Andrea is available in India. Albeit Andrea said it would have to be paid for privately.
62. I take into account that the couple rekindled their relationship when the Appellant re-entered the UK; albeit they were a couple when they lived together in Turkey. It appears that the Appellant ‘just turned up’ and the relationship commenced again. Andrea explained to me, and I accept, that although the Appellant used to contact her via the computer the previous romantic relationship had ended. The relationship after Turkey was, as Andrea put it, ‘correspondence’.
63. I accept that the couple like spending time with each other and that they want to continue to do so. I accept that they ‘look after each other’ which is what couples do. I accept that they feel better when they are around each other and would be anxious and upset if they were not able to live together. They are both depressed and the depression would not be assisted. Andrea had an operation in 2024 and more recently there have been some hearing and urology issues. I accept that Andrea receives treatment albeit there is nothing substantially more recently as there was in 2024. The hearing is being dealt with checks annually.
64. I do not accept that the Appellant’s parents would not permit their son to go to their home in Kerala. The Appellant states he has not told them about Andrea in the sense of being in a romantic relationship with her. I am unable to accept that on the balance of probabilities because it seems odd to say the least that he has not. I do not hold that against the Appellant though and I will assume that he has not told his parents about his romantic relationship with Andrea. Even if the Appellant has not told his parents (or his brother) about Andrea, on return, he still does not need to do so. I see no reason why he would not be able to temporarily live with his parents.
65. Even if he cannot live temporarily with his parents, there is no reason why the Appellant cannot work, doing what he does now in the UK.
66. He will not like manual work (similar to the gardening and cleaning he does now). The Appellant also does housework and he can do the same in India. Of course, I accept he will feel this is beneath him because he is skilled as a seaman and was a restaurant manager in Turkey, but he might even be able to secure the more skilled and professional jobs too. He does not appear to have checked whether he could and there was no evidence he had. The Appellant has significant skills and he speaks English and at least one local language of India as the previous judge said. As that judge also said, working in a place such as Goa will particularly call for the skills of the Appellant. He speaks English, the language of the tourists, who frequent there and he has the skills of a bar and restaurant manager at the seafront in the past.
67. The unchallenged evidence is that entry clearance from India is relatively swift with it being dealt within 12 weeks. That in this case, even with the unhappiness that the couple will feel at being separated, is not an unduly lengthy period of time. Indeed, it is a relatively short period of time against a background in which Andrea works, albeit limited hours because her employers have been so understanding, and whereby the Andrea has her son and his family across the street. Whilst it will not be the same, the couple will be able to speak to each other and contact each other frequently via their computers and on their telephones. I accept it will not be the same as giving each other a hug, but that is what couples sometimes have to endure, whether because of work or other matters. Even for as long as 3 months.
68. I of course accept that Andrea would much prefer to have the Appellant prepare her tablets in the morning and to walk the dogs and to do the gardening, but alternatives can be sought such as the pharmacy preparing the medication for her for her daily use and for Andrea to see if she can find others to walk the dogs if she is not able to do so herself. I know some people find it therapeutic to take their dogs for a walk themselves too. As I say there will be difficulties which will need solutions, but Andrea is an experienced businesswoman who lived abroad for a very long period of around 15 years. I accept she is older now and not in the same health, but the time period that is involved for entry clearance is short being some 12 weeks.
69. There was no real response from the Appellant or from Andrea in respect of the up to £3000 that the Home Office’s Voluntary Returns Scheme will pay the Appellant on return to India. It is for the Appellant to decide whether he will apply for and to accept that payment, but it is clearly yet another source of money for the Appellant, should he choose to apply and to receive it. I accept it is said to be ‘up to” £3000 and might not the whole amount of £3000. The CPIN shows that India has a relatively low cost of living compared to the UK in any event.
70. If I have understood the position correctly then the Appellant currently receives medical treatment and medication via the NHS. I accept he will have to pay for his treatment and medication in India. He is aware which medication is required and there is no evidence on balance that it is not available in India. I do not accept that the medication will be so expensive so as to be inaccessible to the Appellant. In any event, the Appellant will be able to take some medication with him. His time away from the UK is likely to be limited whilst he applies for entry clearance. I know he will want to get on with making that application swifty and that he has the English skills, computer literacy and intelligence to ensure it is done correctly because he is educated and was a businessman for over a decade.
71. Therefore, when I bring all of the matters together and when considering the case to the required balance of probabilities test, the balance sheet above and below reveals itself as follows.
72. When assessing proportionality, the starting point is that the Appellant is in the UK unlawfully and does not meet Appendix FM or the Immigration rules. There are no insurmountable obstacles to family life continuing abroad under EX.1, which are ‘powerful factors’ carrying great weight against the Article 8 claim (para 112, Alam v SSHD [2023] EWCA Civ 30):
“112. The two present appeals, subject to A1's ground 2, are both cases in which neither appellant's application could succeed under the Rules, to which courts must give great weight. The finding that there are no insurmountable obstacles to family life abroad is a further powerful factor militating against the article 8 claims, as is the finding that the relationships were formed when each appellant was in the United Kingdom unlawfully. The relevant tribunal in each case was obliged to take both those factors into account, entitled to decide that the public interest in immigration removal outweighed the appellants' weak article 8 claims, and to hold that removal would therefore be proportionate...”
73. Where the Rules are met then this will be positively determinative of a person’s Article 8 appeal where the decision to refuse and remove engages article 8(1) (TZ Pakistan v SSHD [2018] EWCA Civ 1109, [34]). The rules reflect the SSHD’s policy of how individual rights under Article 8 should be balanced against the competing public interests (Agyarko and Ikuga v SSHD [2017] UKSC 11, [46]) under section 117B 2002 Act relating to the maintenance of effect immigration controls where weight must be attached (Agyarko, [47]).
74. On balance I conclude that it will not cause unjustifiably harsh consequences for the Appellant and Andrea in leaving the UK and continuing family life abroad, either together in India or through temporary separation for the Appellant to make an entry clearance application to the UK from abroad. I accept that they cannot live abroad permanently in view of the Andrea’s wish to live in the UK. The Appellant and Andrea both lived together in Turkey previously where they both ran a restaurant business together for several years. Living abroad whilst an entry clearance application is made to enjoy their family life is therefore a familiar experience to them. It would not unjustifiably harsh because Andrea has annual check ups for her audiology and other appointments, if they cannot be done online from India, then they can be sought in India which has very good medical treatment; albeit it will have to be paid for. I do not accept that the Appellant cannot secure work, albeit he will not want to do manual work initially.
75. The undisputed background evidence shows that there is mental health treatment available in India and is accessible, including both public and private healthcare that can assist the Appellant and/or Andrea in India (CPIN India: Medical and healthcare provision [1.2] – [1.4], [15]). I accept that there is some stigma in some communities in India about mental health, but the Appellant is a well educated man who will be in a different situation to others. In any event, he will be able to have access to being able to speak with his parents (as he does now) and also to Andrea, albeit by remote means.
76. I conclude that the Appellant (and even Andrea because she works now) would be able to obtain work, based on their work history and experiences, to pay for this as well as other costs to live in India. The Appellant would also be eligible to apply for the Voluntary Return Scheme.
77. Should Andrea not wish to go with the Appellant temporarily, in any event I conclude that there would not be unjustifiably harsh consequences in the Appellant leaving the UK to make an entry clearance application to join Andrea in the UK. This temporary separation would not be disproportionate and cause unjustifiably harsh consequences. This could either be temporary separation with the Appellant leaving for India on his own or with Andrea accompanying the Appellant to India for the duration of the entry clearance application process. I conclude they can do either. It is for them to decide which.
78. Given the preserved findings, the appellant does not satisfy EX.1 as there are not insurmountable obstacles in family life being continued abroad. This is relevant given the development of Appendix FM and creation of EX.1 since Chikwamba was decided; there is no general rule that Chikwamba binds the Upper Tribunal in finding the decision to remove being disproportionate where an appellant is certain to succeed in an entry clearance application (Alam [2023] EWCA Civ 30, [106 (iii)] – [109]). Younas [2020] UKUT 129, makes clear that even if the Appellant is likely to satisfy the requirements of an entry clearance application, it does not obviate the need to address the public interest in the maintenance of effective immigration control. The Appellant failed to properly regularise his leave and legal status in the UK, and the expectation to remain permanently was precarious.
79. Significant weight must be placed by me on the public interest to maintain effective immigration control under s.117B(1) NIAA 2002 and in the interests of the economic wellbeing of the country in respect of those who have periods of unlawful or precarious residence in the UK. S.117B (4) & (5) 2002 Act applies to the Appellant’s case. The Appellant’s family life with his partner has been developed whilst he has been in the UK unlawfully. Little weight should be attached to such family life with a qualifying partner in those circumstances (s.117B(4) 2002 Act; Alam [106 (ii)]. I appreciate that the argument is that this couple lived together in Turkey too, but as the evidence showed, that relationship moved and commenced again when the Appellant came to the UK unlawfully much more recently.
80. I am well aware that the Supreme Court confirmed in Rhuppiah v SSHD [2018] UKSC 58 the “little weight” provisions in s.117B(4)-(5) are not rigid or automatic rules. At [49]-[53], the Court made clear that a degree of flexibility remains and that compelling factual circumstances may justify the attachment of greater weight to family or private life notwithstanding precarious or unlawful immigration status. In my judgment there are no sufficient or even arguable compelling factual circumstances which justify the attachment of greater weight to the family life or private life in this case.
81. I unhesitatingly conclude that Appellant’s and Andrea’s circumstances do not create unjustifiably harsh consequences following the Supreme Court’s decision Agyarko. There are no factors that outweigh the public interest in this case under s.117B(1) 2002 Act and in the Appellant’s favour, when considering proportionality and the balance sheet exercise under Hesham Ali.
Conclusion
82. I conclude when considering the House of Lords decision in Razgar that it is proportionate to dismiss the Appellant’s claim having extensively analysed Article 8(2) ECHR for myself.
83. I accept that the Appellant and particularly Andrea will be upset when reading this decision but having considered matters carefully that is the decision I have reached. It is for the Appellant and for Andrea to now decide whether the Appellant will go alone to India to make his application for entry clearance, if that is what he wishes to do.
84. Addressing the issue, I referred to at the head of this decision, I conclude that “the Respondent’s decision does not constitute a disproportionate interference with the Appellant’s and his family members’ right to respect for family life pursuant to Article 8 ECHR. “
85. I thank Ms Kalyan for her very helpful written submissions, but I am unable to agree with her submissions.
86. I accordingly I dismiss the Appellant’s Article 8 ECHR claim.

NOTICE OF DECISION
The decision of the First-tier Tribunal contained a material error of law.
The decision of the First-tier Tribunal was set aside on Article 8 ECHR grounds at the Error of Law hearing.
I remake the decision in respect of Article 8 ECHR by dismissing it.
The Appellant’s appeal remains dismissed on all grounds because the First-tier Tribunal Judge had dismissed the appeal on all protection grounds.
Therefore, the Appellant’s appeal is dismissed on all grounds.

12 August 2026

Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber