Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003190

First-tier Tribunal No: HU/63104/2023
LH/02460/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of September 2025

Before

UPPER TRIBUNAL JUDGE KHAN
DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

LAKHWINDER SINGH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Broachwalla, Counsel instructed by F R Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 17 September 2025

DECISION AND REASONS
1. The appellant is a national of India. He appeals against the determination of First-tier Tribunal (‘FtT’) Judge S Khan (‘the Judge’) promulgated on 17 April 2025 (‘the Determination’), in which the Judge dismissed his appeal against the respondent’s decision of 25 October 2023 to refuse his application for leave to remain as a parent of a British citizen child.
2. The appellant entered the UK on 29 June 2016 on a visit visa valid until 6 December 2016. On 28 November 2020, he applied for leave to remain as a partner of a British citizen which was granted until 5 December 2023.
3. On 15 September 2022, the appellant’s leave was curtailed to 19 December 2022 on account of the relationship having broken down.
4. On 18 November 2022, the appellant applied for leave to remain as the parent of a British citizen child. This was refused by the respondent on 25 October 2023 on the basis that he did not meet the eligibility requirements of the Immigration Rules, specifically paragraphs E-LTRPT.2.2.-2.4. nor paragraph EX.1. because he did not have a genuine and subsisting parental relationship with the child. No exceptional circumstances were identified which would render a refusal a breach of Article 8 ECHR.
5. The appellant appealed the respondent’s refusal decision to the FtT.
FTT’s Determination
6. The First-tier Tribunal heard the appeal on 1 April 2025. The central issues in the appeal focused on: (i) whether the requirements of paragraphs E-LTRP.2.2-2.4 of Appendix Family Life (FM) were met; (ii) whether the requirements of paragraph EX.1. of Appendix Family Life (FM) were met; and (iii) whether the respondent’s refusal of leave was a breach of Article 8 of the European Convention on Human Rights (ECHR).
7. The Judge considered as a preliminary issue a renewed application for an adjournment made by the appellant on the basis that he had a pending application to the Family Court for contact with the child which was not listed until August 2025. An earlier application for an adjournment had been refused on paper by Judge Moon on 25 March 2025 who observed the following: ‘The hearing listed in the Family Court on 27 August 2025 is unlikely to be a final hearing because the time estimate given is only one hour. This appeal has already been delayed as a result of the proceedings in the Family Court and at the moment there is no timescale for when proceedings in the Family Court are likely to conclude. The appellant’s Immigration Appeal cannot be adjourned indefinitely. At the substantive hearing one of the issues for the Judge to consider is whether the appellant ought to be granted some form of leave at least until conclusion of proceedings in the Family Court.’
8. In considering the renewed application, the Judge noted that the appeal hearing had previously been adjourned on account of the same family court matter. She noted that the appellant had submitted limited evidence relating to the human rights claim, save for repeated applications for an adjournment based on the family court matter.
9. The Judge refused the renewed application for an adjournment noting that the immigration and family court matters should be kept separate. Mindful also of the lack of evidence and slow progress in the Family Court matter, the Judge determined that the appeal should go ahead due to the overriding objective and the interests of justice [6]-[7].
10. Turning to the substance of the determination, the Judge found that the appellant had no direct or indirect contact with the child even though the child was born on 29 August 2020. The appellant did not live with the child, have direct access to the child, or have sole responsibility for the child. In light of these findings, the Judge found that the Immigration Rules were not met.
11. In respect of Article 8 ECHR, the Judge found that there was no evidence to demonstrate family life with the child. Although the appellant had established a private life in the UK, when looking at the totality of the evidence, there were no insurmountable obstacles to the appellant returning to India [28]. Furthermore, there were no significant obstacles to the appellant’s integration into India under the Immigration Rules [30]. Accordingly, the Judge dismissed the appeal.
Appeal to the Upper Tribunal
12. The Appellant sought permission to appeal, advancing two grounds of appeal:
(i) The Tribunal erred as it never asked itself whether the refusal to adjourn would affect the appellant’s right to a fair hearing: Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). The ability to make a fair and just decision was predicated on the outcome of the family court proceedings, i.e. if the family court had ordered the appellant to have some form of direct contact, then that would have a significant bearing in determining whether there was a parental relationship with the child.
(ii) The Tribunal failed to consider whether the appeal should be allowed in order for the applicant to conclude family court proceedings: MH and CJ (family proceedings and deportation) [2022] UKUT 00336 (IAC).
13. On 13 July 2025, First-tier Tribunal Judge Mills granted permission on both grounds stating that they identified arguable errors of law.
14. The Respondent did not file a Rule 24 response. It is against this background that the Upper Tribunal heard the appeal.
Hearing
15. We heard from Mr Broachwalla and Mr Tufan at the hearing and thank them both for their helpful and clear submissions. Mr Broachwalla addressed us in line with the grounds of appeal. He stated that family proceedings had commenced in 2022 and that the Judge was aware of the ongoing family matter when she refused the adjournment. She had before her draft orders relating to the family matter as part of the adjournment applications, and also the earlier decision of Judge Moon.
16. Mr Broachwalla confirmed that the family matter was heard in the West London Family Court on 27 August 2025 and that he was authorised to disclose the order to the Tribunal. We confirm that we have reviewed the order. However, in light of the breadth of the confidentiality warning made by the Family Court we have decided not to disclose any of its details in our decision. It is sufficient for us to note that the ongoing Family proceedings have the potential to have a significant bearing on the appellant’s parental relationship with the child within the context of his claim under Article 8 ECHR. We also note that a further hearing in the family matter is scheduled on 22 September 2025.
17. In light of Mr Broachwalla’s submissions, Mr Tufan was asked by the Tribunal if he considered that the decision of MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, cited with approval in CJ (family proceedings and deportation) South Africa [2022] UKUT 00336 (IAC) applied to this appeal. That latter case held that where an appellant in an appeal challenging the refusal of a human rights claim is engaged in proceedings before the Family Court, the general approach concerning the need for the appellant to be permitted to remain in the UK in order to prosecute family proceedings remains applicable.
18. Mr Tufan accepted that MS (Ivory Coast) did apply in the circumstances of this appeal and that the Judge’s Determination involved the making of an error of law.
19. We agree that the Determination contains a material error of law as set out in the appellant’s grounds. The Judge failed to consider whether the appeal should be allowed in order for the appellant to conclude family court proceedings. The observation made by Judge Moon was correct.
20. Having made this finding, it is unnecessary to consider the appellant’s other ground of appeal concerning the failure of the FtT Judge to ask herself whether the refusal to adjourn would affect his right to a fair hearing: See: Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC).
21. Both parties agreed that this matter should be remitted to the First-tier Tribunal if an error were found. Given the extent of the factual findings needed once a decision is made by the Family Court, and having considered the decision of Begum [2023] UKUT 46 IAC we consider that it is appropriate for the hearing to be remitted for a de novo hearing before a judge other than Judge S Khan.

Notice of Decision
22. The appeal is allowed as the making of the decision of the First-tier Tribunal involved a material error of law.
23. The decision of the First-tier Tribunal is set aside.
24. This matter will be remitted to the First-tier Tribunal for a fresh hearing. No findings are preserved.

K.A. Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2025