Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003236
First-tier Tribunal No: HU/64119/2023
LH/07249/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of September 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

KAMAL KUMAR
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr West, Counsel instructed by ALC Solicitors
For the Respondent: Mr Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 18 June 2026

DECISION AND REASONS

1. This is the remaking of the appellant’s appeal, following the decision at error of law hearing (see annex attached).

2. The central issue remaining was whether the appellant met EX.1 (a) and/or the provisions of section 117B (6) of the 2002 Act. If the appellant came within those provisions his appeal would succeed. If not, then the question of overall proportionality fell to be considered.

The hearing

3. I heard brief evidence from the appellant. He confirmed the truth of his witness statement of 8 April 2024. Under cross-examination, he explained that he had not been working in India before he came to the UK. His aunt, who had been referred to by the First-Tier Tribunal Judge, had sadly died since that time, but he had other family members in India, including his father. He said he did not know anything about his wife’s family home in India, that was his in-laws concern, he had never been there, and they had never discussed about the house. He said his son was nearly 18 months’ old and was going to nursery.

4. In response to my questions, the appellant said that his wife said that she was doing everything here and she would not go to India with him. If his child stayed here without him, it would affect the child, because he was the one who was doing everything. If the child were to go with him it would tear apart the family. The child was still being breast fed so every night he wanted to go to his mother.

5. Ms Masih gave evidence and confirmed the truth of her two witness statements. In cross-examination, she said she had last visited India in 2016 or 2017 and stayed in her mother’s house. She agreed she had come to the UK from India when she was 16, and that she still spoke Hindi but although they spoke both Hindi and English at home, it was mostly English. She said she did not plan to visit India with their son as all her close family are here, mother, siblings, niece, nephew, aunt and uncle, and her father’s grave was here. The family home in India was her mother’s house, and she had not asked if it was still there. She said she would stay in the UK if her husband had to go to India, her career was here, her family was here and she and her son were British she could not see her career in India. Her mother’s sister lived in India, but she did not speak to her. She said if she had to go to India to see her husband she would go for a visit for 12 – 15 days but she could not live there for a longer time, she did not know anything over there. Her husband was studying when he came to the UK, he had not worked in India so she did not know how he would get a job. She would have to be a provider for the family, so if he went back to India, she would have to look after both sides. She had never studied or worked in India, and it was very hot and there was a crisis going on, she could not see herself staying there for long.

6. I asked Ms Masih whether she appreciated when meeting the appellant and then entering into a relationship that he was here as a student and might have to return and she said that they were still young, they wanted to have a life in the UK when they met and they tried everything to legalise the appellant to be able to be in the UK and to stay here as a family.

7. After the evidence, the representatives made submissions. I analyse those as necessary when explaining my conclusions.

8. At the end of the submissions, I announced that I would allow the appeal; I was satisfied that Ms Masih would remain in the UK and I considered that it would not be reasonable to expect the couple’s child to leave the UK in those circumstances. I explained that I would give a written decision, as I now do.

Findings and reasons

9. When Ms Masih and the appellant began their relationship, she was only 21 and was still studying. Mr Sheikh submitted that she did not explain credibly why it did not occur to her that she might have to go to India to continue their relationship given she knew the appellant was a student, but I consider one can well imagine that at that age she was not thinking about the consequences of her partner also being a student and maybe having to return to India; young people in the excitement of entering a relationship do not typically give considered thought to the consequences. Of course, she appreciated the consequences later but by that stage she was invested in the relationship and the couple focussed on the appellant staying in the UK.

10. Mr Sheikh submitted that Ms Masih had visited India in 2016, and this suggested that she would return. There were obvious reasons why she would claim that she would not go to India, but her actions in the past showed that on the balance of probabilities she would return, she had lived there until she was 16, she spoke Hindi, she had a family home and a support network.

11. I have taken into account that Ms Masih has a strong incentive to claim that she would not go to India, but I am satisfied that she would not in fact leave the UK if the appellant were removed as I explain below.

12. The couple have a genuine relationship and do not want to be separated, and Ms Masih would naturally not want the appellant to be separated from his son. However although they would have her family home in India in which to live and the presence of extended family and a support network in the UK who I can infer would ensure that they had the means to live until at least one of them found work, she would be starting again in India, giving everything up she had worked for in the UK where she has now spent more than half her life and leaving behind her mother and siblings in the UK who provide her and her son with love and support. Ms Masih has returned to work again after maternity leave and that work provides for the appellant and their son. It makes complete sense in that context that if the appellant were to be removed to India, Ms Masih would remain in the UK and carry on working and support the appellant so that they are not beholden to family and the appellant is in the best position (in terms of location for example) to find a job and set himself up so that he can live comfortably and she can see whether it would be possible to sponsor him to return to the UK. Frankly, it is the practical option as it is not irreversible. A sponsor in the position of Ms Masih can always wait and see, and if the removed spouse sets himself up comfortably and/or it is not possible to sponsor the removed spouse to return, or the sponsor and child just miss their spouse/parent too much, reconsider the family’s position after some time apart and perhaps a visit to the country of removal. If Ms Masih were to leave the UK now with the appellant, she would be moving with their son to a financially uncertain situation where they would be dependent on relatives for a while and be establishing themselves all over again. In the context of their comparative situation in the UK and in India, I find it perfectly credible that Ms Masih would not move to India now with the appellant.

13. Although Mr Sheikh submitted that it would be reasonable to expect their son to return with his father, even if his father is returning on his own, I consider it would not be reasonable to expect this. I agree that there would be extended family and Ms Masih could visit, and I agree that since Ms Masih went back to work after maternity leave the appellant has been looking after their son when Ms Masih is at work and the child is not at nursery. I am however satisfied that it would not be reasonable to separate their son, a British citizen, both from his mother (who I accept still breast feeds him at times) and his familiar environment and wider family in the UK (the First-Tier Tribunal Judge accepted that Ms Masih’s family were a regular presence in the child’s life), for an unknown period. The best interests of the child are to remain with both parents, but if, Ms Masih remaining in the UK, the child has to be separated from one loving parent, I conclude that the child’s best interests lie in preserving the status quo as much as possible, so that the child remains with the parent who is staying in the familiar environment.

14. Based on my findings, and the way we construed the law in the error of law decision, the appellant satisfies the requirements of EX.1 (a) and/or section 117B (6) of the 2002 Act as the appellant has a genuine and subsisting relationship with his British citizen son, and it would not be reasonable to expect the child to leave the UK. As Article 8 is engaged, the decision is therefore disproportionate and breaches Article 8 ECHR.

Notice of Decision

The appeal is allowed on remaking.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 September 2026

Annex (error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003236
First-tier Tribunal No: HU/64119/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27 April 2026

Before

THE HON. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE LANDES

Between

KAMAL KUMAR
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr West and Mr Mavrantonis, Counsel
For the Respondent: Ms Nolan, Senior Home Office Presenting Officer

Heard at Field House on 15 January 2026

DECISION AND REASONS
(1) Introduction
1. The appellant appeals, with the permission of the Upper Tribunal, against the decision of a First-tier Tribunal Judge (“the FtTJ”) promulgated on 5 February 2025 dismissing the appellant’s appeal against the respondent’s refusal on 21 November 2023 of the appellant’s human rights claim arising from his application made on 25 May 2023 for leave to remain as a spouse.

(2) Background
2. The appellant is a citizen of India. He came to the UK in 2009 with leave to enter as a student. His latest period of leave expired on 25 August 2014. He has said that he met his partner, Ms Masih (a British citizen who came to the UK from India when she was aged 16) in January 2011, that their relationship began in August 2011 and that they started to live together in February 2014. The couple married on 31 July 2021.
3. The appellant first applied for leave to remain as an unmarried partner on 23 December 2014, but this was refused with no right of appeal. He subsequently claimed asylum, which was refused on 11 March 2020 and then he applied again on 19 October 2020 for leave to remain as an unmarried partner. His application was refused on 1 September 2021 and he appealed to the First-tier Tribunal, but his appeal was dismissed in May 2022, the judge finding that there were no insurmountable obstacles to family life continuing in India and that “the balance sheet proportionality assessment is firmly against him.”
4. As we have said, on 25 May 2023 the appellant made a further application for leave to remain as a spouse, which was refused by the respondent on 21 November 2023 and the appellant appealed for a second time to the First-tier Tribunal.
5. Meanwhile, the couple had a British citizen child, born on 13 October 2024. Although the child’s birth post-dated the refusal decision, the respondent agreed that the existence of the child could be raised in the appeal as a “new matter”.
6. The FtTJ found that Ms Masih was currently on maternity leave from her employment. All of her immediate family lived in the UK, she met with them regularly and they provided support to each other, but the relationship between them and Ms Masih did not amount to family life within the meaning of Article 8 ECHR. The FtTJ found that the appellant and Ms Masih had extended family in India and that the Masih family had a family home in India. The FtTJ accepted that Ms Masih would find it difficult to adjust to life in India, as she had lived in the UK for 19 years, but she was not unfamiliar with the country, given both the age at which she left and the fact that she had visited India within the last 10 years. The extended family and the family home would help the couple to re-establish themselves in India and they were both capable of finding employment there. The FtTJ found that the appellant had failed to establish, for the purposes of paragraph EX.1(b) of appendix FM to the immigration rules, that there would be insurmountable obstacles to family life continuing in India.
7. When considering the best interests of the child, the FtTJ found that it was in the best interests of the child to be with his parents; there was nothing to suggest that the child, who was only 3 months old at the time, had any particular attachment to the UK or could not maintain ties with his maternal family at a distance. The FtTJ concluded that “if the parents have to leave the UK, the natural expectation would be that the child would go with them”. She found that, taking into account the child’s best interests as a primary consideration:
(1) the appellant had not shown, for the purposes of paragraph EX.1(a) of appendix FM to the immigration rules, that it would not be reasonable to expect the child to leave the UK; and
(2) that, for the purposes of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), it would be reasonable to expect the child to leave the UK.
8. The FtTJ considered that the respondent’s decision was proportionate. When so doing, she concluded (without further explanation, other than that the appellant had lived in the UK unlawfully since 25 August 2014) that, following section 117B(4)(b) of the 2002 Act, little weight should be given to his family life because it was established at a time when he was in the UK unlawfully.
(3) The Hearing before the Upper Tribunal
(3)(a) The Grounds of Appeal
9. By the time of the hearing, three grounds of appeal remained:
(1) Ground 1 was that the FtTJ had erred in her assessment of paragraph EX.1.
(2) Ground 2 was that she had erred in her approach to section 117(4)(b), since either:
(a) the appellant’s relationship with Ms Masih had been established in 2011, when he had lawful status, and so did not fall foul of the “little weight” provision; or
(b) if “established” was to be read in a present continuous sense, then not all of the relationship fell foul of the “little weight” provision.
(3) Ground 5 was that the FtTJ had failed to give adequate weight to the British child’s citizenship and had assessed the “reasonableness” question in section 117B(6) from the wrong standpoint, namely that the parents of the child had to leave the UK, when the mother was a British citizen and could not be required to leave the UK.
(3)(b) The Adjournment Application
10. The respondent applied for an adjournment on the day before the hearing. The presenting officer then due to conduct the hearing (Ms Ahmed) explained that, after the hearing was allocated to her on 6 January, she had made contact with internal stakeholders to ascertain the respondent’s position on the statutory interpretation point in Ground 2, but a response was still awaited from the Family Policy team and, as this was a novel and important point, she considered that she would not be in a position properly to address the panel without that response. The appellant indicated that he would be supportive of an adjournment, but we considered that, given the late stage of the application, it would be considered at the hearing on the next day. We drew the attention of the representatives to the case of Deelah and others (section 117B – ambit) [2015] UKUT 515 (IAC) (“Deelah”), as being a case where the meaning of “established” was considered by the then President of the Upper Tribunal.
11. At the hearing, Ms Nolan maintained the application for an adjournment. She acknowledged that nothing had been done before Ms Ahmed had been allocated the case on 6 January 2026, but the Family Policy team had still not responded and she asked for a 4-week extension of time so that a skeleton argument could be served addressing the point. Mr West on behalf of the appellant explained that they were supportive of the respondent’s position, particularly as Ms Nolan had had to take over conduct of the hearing at the very last minute. He submitted that Deelah concerned the issue of establishing private life, rather than a relationship, and that the establishment of a relationship had not been looked at by the Upper Tribunal or by any other court or tribunal. He noted that the original directions had required a skeleton argument from the respondent, which had not been provided, and he submitted that it would assist the appellant to know the respondent’s case in writing.
12. We decided that it was not necessary to adjourn the hearing. The effect of adjourning the hearing would be to delay the hearing of another case. We did not yet know whether the Family Policy team would have anything new to say about Ground 2, but we indicated that we would give both parties the opportunity to make further submissions in writing after the hearing both on Ground 2 and in relation to the case of Runa v Secretary of State for the Home Department [2020] 1 W.L.R. 3760; [2020] EWCA Civ 514 (“Runa”), which we considered to be relevant to Ground 5.
13. We put the case back so that Ms Nolan had adequate time to prepare. We then heard submissions from Mr West and Ms Nolan. At the conclusion of the hearing we directed that first the respondent and then the appellant file written submissions. We asked that any advice from the Family Policy team be considered and we invited both parties to reflect on the cases of Runa, Secretary of State for the Home Department v AB (Jamaica) and AO (Nigeria) [2019] 1 WLR 4541; [2019] EWCA Civ 661 (“AB (Jamaica)”) and SR (subsisting parental relationship - s117B(6)) Pakistan [2018] UKUT 334 (IAC).
(4) Ground 1
(4)(a) Ground 1: Submissions
14. The significance of paragraph EX.1 is that, when it applies, certain of the requirements in appendix FM to the immigration rules are disapplied. Paragraph EX.1 provides as follows:
“This paragraph applies if
(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, …;
(bb) is in the UK;
(cc) is a British Citizen … ; and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, … and there are insurmountable obstacles to family life with that partner continuing outside the UK.”
15. In the grounds of appeal, it was submitted that the FtTJ wrongly considered paragraph EX.1(b) from the standpoint that Ms Masih could choose whether to go with the appellant to India, whereas the rule presupposes that Ms Masih would go with the appellant to India. Furthermore, the appellant submitted that the FtTJ had not dealt with his submission that Ms Masih did not have Indian citizenship and that it had been held in the case of Gurdeep Kaur v Secretary of State for the Home Department [2023] EWCA Civ 1353 (“Kaur”), at [27], that there was no basis for assuming that a sponsor without the nationality of the country of the appellant’s return would be able to live there.
16. The rule 24 response simply submitted that the FtTJ had adequately assessed the findings in relation to paragraph EX.1. The appellant did not develop Ground 1 further in the rule 25 response or the skeleton argument.
17. Mr West did not develop Ground 1 further at the hearing. He accepted, however, that reliance on the paragraph in Kaur was misplaced. The Upper Tribunal’s conclusion in that case on insurmountable obstacles was very brief, to the effect that there were no insurmountable obstacles to the couple living together in India, of which they were both citizens, if they chose to do so. The Upper Tribunal in Kaur was, however, wrong as a matter of fact, since there was evidence that the sponsor was a naturalised British citizen. The Court of Appeal’s finding at [27], which is quoted in Ground 1, is a finding about whether that error was material. The Court of Appeal found it to be material because there was no basis to assume that the sponsor would be able to live in India as if he were an Indian citizen (i.e. clearly meaning with the same rights and benefits). This paragraph is not authority for the proposition that there is no basis for assuming that Ms Masih and the child would be able to obtain a visa for India or to live together with the appellant in India. Obviously, in any case an appellant may be able to show that British citizen family members would not be able to enter the appellant’s country of return or to live with him there because of visa problems or other similar difficulties, but, in the usual way, that would be for the appellant to prove and, absent such evidence, a judge would be entitled to infer that the appellant’s British citizen wife and child would be able to live with him in the country of return.
18. Ms Nolan submitted that there was no error. The FtTJ had gone through all of the factors relied upon as to why it was said that there were insurmountable obstacles and had taken in all the aspects. There had been no error in her approach.
(4)(b) Ground 1: Conclusion
19. We will only consider under this ground the question whether the FtTJ correctly applied paragraph EX.1(b) when she concluded that there were no insurmountable obstacles to the appellant’s family life with Ms Masih continuing outside the UK. We will leave consideration of whether the FtTJ properly approached paragraph EX.1(a) until we consider Ground 5, since paragraph EX.1(a) and section 117B(6) raise the same question.
20. The FtTJ’s decision contains a section, from [21] to [38], entitled “Paragraph EX.1. of Appendix FM to the Immigration Rules: insurmountable obstacles”. It is right that the FtTJ concluded [32], which was mainly about whether Ms Masih could adjust to life in India, with the sentence:
“The Appellant and Mrs Masih would also have each other for support and it would be open to Mrs Masih to accompany the Appellant to India or to visit him there or maintain contact remotely.”
21. The last part of this sentence suggests that the FtTJ was considering something very different from whether “there are insurmountable obstacles to family life with [Ms Masih] continuing outside the UK”, an issue which presupposes that the appellant and Ms Masih would be living together in India.
22. Nevertheless, the decision must be read as a whole. The FtTJ referred at [17] and [37] to the finding of the previous tribunal that there were no insurmountable obstacles, which finding was, of course, her starting point on Devaseelan principles. She made the findings to which we have referred in paragraphs 6 and 7 above. Significantly, her conclusion on paragraph EX.1(b), at [37], was as follows (emphasis added):
”With regard to all the evidence and the previous decision of the Tribunal, I find that on balance whilst the Appellant and Ms Masih would very likely face difficulties on return to India, the challenges which would be faced by them there would not amount to “very significant difficulties”, or “very serious hardship”. Accordingly, the Appellant has failed to establish that he or Mrs Masih would be likely to face insurmountable obstacles to family life in India and he fails to meet the requirements of paragraph EX.1.(b) of the Immigration Rules.”
23. It is clear that she was approaching the issue under paragraph EX.1(b) from the correct standpoint, i.e. by asking herself what would happen if the appellant and Ms Masih were together in India. She did not refer in that paragraph to the possibility of Ms Masih merely visiting India or maintaining contact remotely. We note also that not all of the findings at [21] to [36] are exclusively referable to paragraph EX.1(b) and so not everything in those paragraphs informed her conclusion on the issue under paragraph EX.1(b). For instance, at [25] she made findings about the lack of family life between Ms Masih and her mother and siblings, which is not itself part of the paragraph EX.1(b) test.
24. We conclude that the FtTJ made no error of law. Her conclusion at [37] on paragraph EX.1(b) was open to her on the evidence and fully reasoned in her earlier paragraphs. Even if she had wrongly taken into account that Ms Masih could visit India or maintain contact remotely with the appellant, the error would not have been material, since, bearing in mind the findings of the previous tribunal and her own findings about the lack of difficulties which the couple would face on return to India, she could not rationally have come to any other conclusion but that paragraph EX.1(b) did not apply.
(5) Ground 2
(5)(a) Ground 2: Submissions
25. Section 117A of the 2002 Act requires a tribunal, when determining the question of whether a decision made under the Immigration Acts breaches a person’s rights under Article 8 ECHR, and in considering the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2), to have regard, in all cases, to the considerations listed in section 117B.
26. Section 117B(4) reads as follows:
“Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.”
27. The definition of “qualifying partner” in section 117D(1) includes a child who is a British citizen.
28. Mr West relied on the way in which he had explained Ground 2 in his rule 25 reply, rather than in the grounds of appeal. This was, in summary, that, whilst the words “formed” and “established” should be read in a past continuous tense, the single point in time at which the relationship was formed was important in the assessment of the statutory provision. A tribunal had to assess which periods of time after a relationship had been formed should be ascribed little weight and which periods of time might not be subject to the “little weight” provision. He submitted that “formed” should be given its ordinary meaning, so as to refer to a relationship commencing or being entered into. The FtTJ had erred in applying the “little weight” provision in blanket fashion, saying that the relationship was “established” at a time when the appellant was in the UK unlawfully, when in fact it had been first established or formed when he was here lawfully.
29. He submitted that the case of Deelah, to which we had referred the representatives, was a case in which the Upper Tribunal had considered the meaning of “established” in section 117B(4)(a) and (5), but that there was no case which had considered the meaning of the word “formed”. As to the meaning of “established”, the then President said as follows in Deelah, at [25] to [27]:
“25. In the context of section 117B(4) and (5) of the 2002 Act, is the establishment (or establishing) of private life confined to its initiation, or creation? Mr Malik submitted that the normal meaning of the verb “establish” impels to an affirmative answer. In response to a question from the Tribunal, Mr Malik accepted that private lives and relationships are by their vary nature effervescent and dynamic rather than static. He agreed that neither comes into existence abruptly. Rather, both are developed progressively, with a distinct element of evolution. While it is a truism that every person’s private life and relationships develop at different paces, some more quickly than others, I consider that this does not assist the Appellants’ argument. On the contrary it confounds it.
26. In choosing the verb “establish” in section 117B(4) and (5), it seems likely that the draftsman has simply drawn from the long standing and repeated judicial espousal of this term. Developing the analysis begun in [24] above, I consider that, in this statutory context, “established” is synonymous with “developed”. The construction of “established” advanced on behalf of the Appellants is, in my view, artificially narrow. It is further defeated by the long established absurdity principle of statutory construction, familiar to all: Parliament is presumed not to have intended an absurd effect or consequence. The suggestion that the “little weight” instruction enshrined in section 117B(4) and (5) applies only to the beginning of a person’s private life or the commencement of a relationship formed with a qualifying partner and not the continuance of either results in a construction of these provisions which, in my estimation, is manifestly unsustainable to the point of absurdity. Why penalise the former and not the latter? No rational explanation or justification for this differential treatment was advanced in argument and I am unable to conceive of any.
27. Furthermore, the construction advocated on behalf of the Appellants would, in my opinion, be unworkable in practice. The exercise of attempting to delineate the formation of a person’s private life or relationship with a qualifying partner from the continuation and extension thereof would be an impossible one in practice. In this context one is reminded of the truism that Parliament legislates in the real world. There is no conceivable rational distinction to be made between the two concepts, or scenarios. For this combination of reasons the third ground of appeal must fail.”
30. Mr West agreed that, as set out in Deelah at [26], “established” could not just apply to the beginning of a relationship formed with a qualifying partner. Nevertheless, he submitted that the FtTJ had erred by applying the “little weight” provision to the whole of the appellant’s relationship with Ms Masih and not just to that part of the relationship which was established when the appellant was in the UK unlawfully. It had been an error for the FtTJ to exclude from the appellant’s side of the proportionality balance the periods of the relationship when it was being established while the appellant was in the UK lawfully. Those periods were: (a) from the start of the relationship in August 2011 to the expiry of his leave to remain on 15 January 2012; and (b) from 24 July 2012 to 25 August 2014, when the appellant again had leave to remain.
31. Mr West referred to the case of Lal v Secretary of State for the Home Department [2020] 1 WLR 858; [2019] EWCA Civ 1925 (“Lal”). In that case, the appellant had had student leave throughout, but, when considering the effect of the “precariousness” of his immigration status, the Court of Appeal considered, at [56], [57] and [59], that this did not mean that any relationship formed when one partner did not (or did not to the other’s knowledge) have a right of permanent residence in the UK should be given little weight, or that, for that purpose, all persons who did not have settled status should be viewed identically. Rather, it was necessary to consider the particular circumstances of the individuals involved, including their immigration status and history, and it would be unreasonable to attach equal weight to family relationships established by individuals in different legal situations, giving the same weight to a family relationship established by someone who had been in the UK for some years and was on a pathway to settled status and someone who had been in the country in breach of immigration laws and was liable to removal. It was open to courts and tribunals, where a relationship with a qualifying partner was established at a time when a person was lawfully present in the UK (but did not have indefinite leave to remain), to give such weight to the relationship as was appropriate in the particular circumstances: see [56], [57] and [59].
32. Mr West submitted that the only way to give the appropriate weight to the relationship was, as Lal suggested, to look at the particular circumstances of an individual’s leave at different times, if the individual had not always been in the UK unlawfully when he was in the relationship. Otherwise, however long the relationship might have continued when the person had been here with leave, if he remained unlawfully, the whole of the relationship would be subject to the “little weight” provision. He submitted that a tribunal would need to assess which periods of time in a person’s immigration history after a relationship had been “formed” should be ascribed little weight and which periods might not be subject to the “little weight” provision, bearing in mind the singular point in time at which the relationship was “formed”. He submitted that “formed” just meant a relationship commencing or being entered into, and that a relationship was “formed” at the point at which the individual understood that they had entered into a relationship.
33. That being so, Mr West’s submission was that the FtTJ had erred, because she had attached the “little weight” provision in blanket fashion to the whole of the appellant’s relationship, although the relationship had first been established or formed in August 2011, when the appellant was in the UK lawfully. He said that the FtTJ should only have applied the “little weight” provision to that part of the relationship established when the appellant was in the UK unlawfully.
34. Ms Nolan submitted that the word “formed” did not add anything to the fact that the relationship existed. She submitted that “established” meant developed. A relationship was a living thing, which developed over time. The appellant’s relationship with Ms Masih continued to develop until their marriage in 2021. The Upper Tribunal had already given guidance in the case of Deelah on what “established” meant and the word extended to the continuation or development of a relationship. Whilst that case concerned private life, the observations of the then President were not confined to private life and clearly the interpretation of the statute had to be the same across section 117B(4)(a) and (b). The FtTJ had not erred in giving little weight to the relationship, because the relationship was established, in part, at a time when the appellant was in the UK unlawfully. If we were not with her on that point, then she submitted that any error of law was immaterial when looking at the decision as a whole, since the FtTJ had set out, at [47], the factors in favour of maintaining family life in the UK, which included the appellant’s initial lawful residence in the UK and his relationship with Ms Masih and their child, but had explained that a compelling claim would be required to offset the considerable public interest.
35. In the event, after consultation with the Family Policy team, the respondent decided that she had no additional written submissions to make on the interpretation of section 117B(4)(b).
(5)(b) Ground 2: Conclusion
36. We agree with Ms Nolan that the word “formed” in section 117B(4) does not add anything. The word is there simply to explain what it is that little weight should be given to. It makes no difference that section 117B(4)(b) refers to a relationship “formed with a qualifying partner”, as opposed to a relationship “between a person and a qualifying partner” or simply a relationship “with a qualifying partner”.
37. We consider that it is important in this respect to note the place of the word “formed” in the structure of section 117B(4). It is to be found in section 117B(4)(b) and not in the final clause of section 117B(4): “that is established by a person at a time when the person is in the United Kingdom unlawfully.” Yet it is only that final clause which contains the temporal aspect of section 117B(4). The word in the final clause is “established”, not “formed”.
38. As to the meaning of the word “established”, we consider that the approach of the then President in the case of Deelah is to be adopted. It is right, as Mr West said, that the First-tier Tribunal had dismissed the appeal in Deelah without considering section 117B(4). Nevertheless, the grounds of appeal in Deelah clearly focussed on section 117B(4)(a) and so the then President’s conclusions as to the meaning of “established” in the context of private life were part of the ratio of the case. We agree that “established” must be construed in the same way in both subsections of section 117B(4) and that “established” is indeed synonymous with “developed”. We note that the then President observed at [27] of Deelah that attempting to delineate the formation of a person’s private life or relationship from its continuation and extension would be impossible in practice. We need say nothing in this case about the question whether, and if so when and in what circumstances, there can come a time at which a relationship is fully developed and established.
39. Adopting that meaning of the word “established”, the parties contended, as we have noted, for two different ways in which section 117B(4)(b) might apply in a case such as this:
(1) Ms Nolan submitted, in effect, that it is a matter of “all or nothing”, i.e. that if, at any time, the relationship was being established at a time when an appellant was in the UK unlawfully, then the consideration in section 117B(4)(b) is that little weight should be given to the relationship as a whole.
(2) Mr West submitted that the consideration in section 117B(4)(b) is that little weight should be given to that portion of the relationship which was being established at a time when the appellant was in the UK unlawfully, but that it would be for the tribunal to assess how much weight should be given to that portion of the relationship which was being established at a time when the appellant was in the UK lawfully.
40. We have concluded that Mr West is right and that a tribunal only has to have regard to the consideration that little weight should be given to the relationship in respect of that aspect of the relationship which was being established when the appellant was in the UK unlawfully. Whilst the case of Lal does not concern the meaning of section 117B(4), it is clearly relevant that the case law, including the case law of the European Court of Human Rights, has made it clear that, in striking the balance between the right to respect for family life and the state’s interest in controlling immigration, it is necessary to consider the particular circumstances of the individuals involved, including their immigration status and history. In this context, we consider that it is appropriate, if possible, to avoid a construction of section 117B(4)(b) which would mean that individual circumstances were not considered and (for example) the relationship of a person who had always been in the UK illegally would be treated in precisely the same way as that of a person who had had leave to remain for many years, including when the relationship was formed and perhaps for a long time thereafter, but who later remained illegally. It is right that the case of Rhuppiah v Secretary of State for the Home Department [2018] 1 W.L.R. 5536; [2018] UKSC 58 explains that the provisions of section 117B cannot put decision-makers into a straitjacket which constrains them to determine claims inconsistently with Article 8 and (quoting from Sales LJ’s judgment in the Court of Appeal in the same case) that the generalised normative guidance in sections 117A and 117B may be overridden in an exceptional case by particularly strong features of the private or family life in question, but clearly that would only be in an exceptional case. We consider that section 117B(4)(b) does not have to be construed in an “all or nothing" way and that reading “established” in the past continuous tense means that different periods or portions of the relationship can be considered differently.
41. We are fortified in our conclusion by the decision of the Outer House of the Court of Session in the case of SS, Petition for Judicial Review [2016] ScotCS CSOH 122. In that case, Deelah was referred to and adopted and the Court accepted the submission of counsel for the respondent that, when considering when a relationship was established, there could be moments of significance in a deepening relationship and that the effect of section 117B(4) was that the portion of the relationship which took place when the petitioner’s presence in the country was illegal was given little weight and the portion which took place before his status was illegal was essentially neutral and a judge could give such weight as he or she thought fit to any period prior to illegality: see [23] and [30].
42. Adopting that interpretation, the FtTJ erred in simply saying, without more, that “little weight should be given to the family and private life of the appellant because it was established at a time when he was in the UK unlawfully – section 117B (4) of the 2002 Act.” Nevertheless, if the FtTJ was right in her other conclusions, which are challenged in Ground 5, then this error would not be a material one. Whilst the relationship began in August 2011, when the appellant was in the UK with leave to remain, the couple did not marry and have a child, until long after the appellant’s leave had expired. By far the greater and most significant part of their relationship was developed when the appellant was in the UK without leave. In any event, as Ms Nolan pointed out, when conducting the proportionality balance, the FtTJ did take into account in the appellant’s favour the fact of his relationship with Ms Masih [47(b)]. If the FtTJ was right in her other conclusions, the fact that the considerations to which she was bound to have regard did not include a supposed consideration that little weight was to be given to the first three years of the couple’s relationship, for most of which period they were not living together, could not possibly have made the difference between the decision being proportionate, as she found, or disproportionate.
(6) Ground 5
(6)(a) Ground 5: Submissions
43. It was averred in the grounds of appeal that the FtTJ had failed to give adequate weight to the child’s British citizenship, particularly given that the starting point in the respondent’s family policy was that a qualifying child would not normally be expected to leave the UK.
44. There was only limited reference in the grounds of appeal to section 117B(6) of the 2002 Act, which has come to assume central importance in relation to ground 5. Section 117B(6) provides as follows:
“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.”
45. The definition of “qualifying child” in section 117D(1) includes a child who is a British citizen.
46. Ground 5 was developed extensively in the appellant’s skeleton argument. It was said that the FtTJ had erred by considering the “reasonableness question” in section 117B(6) from the standpoint that the parents of the child had to leave the UK, whereas Ms Masih was a British citizen and could not be expected to leave the UK.
47. It was also said that the FtTJ had not applied the decision in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874 (“EV (Philippines)”), at [58], where Lewison LJ said:
“In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment must be conducted. If neither parent has the right to remain, then that is the background against which the assessment must be conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?”
48. We note that this passage from EV (Philippines) was not about the reasonableness question posed by section 117B(6) (which was not in effect when EV (Philippines) was decided), but about the assessment of the best interests of a child. Nevertheless, Mr West submitted that where, as in this case, one parent had a right to remain, that was the backdrop against which the reasonableness question had to be answered and so the FtTJ should have considered the reasonableness question against the backdrop of the child hypothetically leaving with the father only.
49. As we have said, we drew the representatives’ attention to Runa. That was a case where British citizen children had a British citizen father and a mother who was a national of Bangladesh and who had remained in the UK unlawfully after her visit visa had expired. One of the grounds of appeal was that the DUTJ, on remaking the decision, had erred in the construction and application of section 117B(6) and the reasonableness test.
50. The DUTJ had concluded that, where there were no insurmountable obstacles to family life between the appellant and her husband continuing outside the UK, the natural expectation would be that the children would go with them and that there was nothing in the evidence to suggest that that would not be reasonable. He had also contemplated that it would be reasonable for the children to remain in the UK with their father alone. The Court of Appeal rejected the appellant’s primary submission that whenever one parent has a right to live in the UK and the other does not, it would be unreasonable to expect the child to leave the UK. Singh LJ said, at [27], that, if Parliament had intended to enact such a rule of law, they could easily have said so, adding that:
“Section 117B(6) does not enact a rule of law but rather calls for a question to be asked and answered on the facts of each particular case.”
51. Singh LJ said, at [36], that the provision called for a fact-finding exercise so that the full background facts must be established against which the statutory question could be addressed. He added, at [37], that the test was not whether there were insurmountable obstacles to the maintenance of family life outside the UK and that the DUTJ had wrongly focussed on that question. He said, at [42], in relation to the question whether it would be reasonable to expect the children to leave the UK, that:
“That is not, as Mr Biggs submitted, a hypothetical question but it is a normative question, not merely an exercise in prediction: see AB (Jamaica), at paras 73—75 (Singh LJ), approving what was said by Upper Tribunal Judge Plimmer in SR (Pakistan) v Secretary of State for the Home Department [2018] UKUT 334 (IAC) at [51]; and see also AB (Jamaica), at para 116 (Underhill LJ).”
52. In their written submissions after the hearing, counsel for the appellant submitted that, although there seemed to be divergent approaches in the case law, what was clear was that the tribunal could not circumvent the question by saying that the British child could remain in the UK with the British parent. They cited AB (Jamaica) as one of a number of cases in which it was held that the section 117B(6) question must be answered, even if there was no realistic prospect of the child actually leaving the UK because one parent had the right to remain, and would remain, in the UK.
53. Counsel submitted, however, that there was a divergent approach in the cases, in that the paragraph which we have quoted from EV (Philippines), even if technically obiter, was endorsed by Lord Carnwarth in KO (Nigeria) v Secretary of State for the Home Department [2018] 1 WLR 5273; [2018] UKSC 53 (“KO (Nigeria)”), at [19], and Lord Carnwath’s judgment, at [18] and [19] that the section 117B(6) question should be determined by assuming that a parent who has no right to remain will leave the UK with the qualifying child.
54. Counsel submitted that it was difficult to see how section 117B(6) could, on the one hand, require a single question to be asked on the hypothesis that the qualifying child is to leave the UK, while, on the other hand, mandate the court or tribunal to make a finding of fact as to where each of the qualifying children’s parents will be.
55. It was submitted that the “real world” context was that the child hypothetically left with the appellant only, given that Ms Masih had a right to remain. However, even if the approach in Runa was to be preferred, the FtTJ had simply failed to carry out the necessary fact-finding exercise.
56. Counsel for the appellant also relied on NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 to submit that the presumption should be that the parent with the right to remain in the UK will remain in the UK.
57. Ms Nolan in her written submissions said that the FtTJ had answered the question whether it would be reasonable to expect the child to leave the UK and had concluded that it had not been shown that it would not be reasonable to expect the child to leave the UK. She had not fallen into the error considered in Runa, because she had not asked whether it was reasonable for the child to remain in the UK with the British mother. Whilst the FtTJ had not made a finding that Ms Masih would leave the UK, the question was simply whether it would be reasonable for the child to leave the UK. The FtTJ had considered the real-world situation that, if the parents had to leave the UK, the natural expectation would be that the child would go with them and had then concluded that it would not be unreasonable to expect the child to leave the UK. There was no error of law.
(6)(b) Ground 5: Conclusion
58. We have found it helpful to begin with the law as laid down in Runa that the section 117B(6) question must be asked and answered if one parent is to be removed, whether or not both parents are expected to leave the UK. Given that the question has to be asked and answered in both of those situations, it is self-evident that, in answering that question, it will be relevant for the tribunal to determine which situation the child would be in if one parent were removed.
59. We have already cited Singh LJ’s statement in Runa, at [42], that the section 117B(6) question is not a hypothetical question, but a normative question. In order to understand what Singh LJ meant by that, it is appropriate to refer to what he said in his judgment in AB (Jamaica), at [73] to [75], to which reference was made at the hearing:
“73. … In my view, the concept of “to expect” something can be ambiguous. It can be, as the UT thought, at para 25, simply a prediction of a future event. However, it can have a more normative aspect. That is the sense in which Admiral Nelson reputedly used the word at Trafalgar, when he said that “England expects every man to do his duty.” That is not a prediction but is something less than an order. To take another example, if a judge says late in the day at a hearing that she expects counsel to have filed and served supplementary skeleton arguments by 9 am the following morning, so that there is no delay to the start of a hearing an hour later: although she may not be ordering the production of that skeleton argument, that is what she considers should happen. That is not a prediction of a future occurrence. It carries some normative force.
74. Finally, in that regard, I agree with and would endorse the following passage in the judgment of Upper Tribunal Judge Plimmer in SR (Pakistan) v Secretary of State for the Home Department [2018] UKUT 334 (IAC), a case which was decided before the decision of the Supreme Court in KO (Nigeria), at para 51:
“It is difficult to see how section 117B(6)(b) can be said to be of no application or to pose a merely hypothetical question. Section 117B(6) dictates whether or not the public interest requires removal where a person not liable to deportation has a genuine and subsisting parental relation with a qualifying child. The question that must be answered is whether it would not be reasonable to expect the child to leave the UK. That question as contained in statute, cannot be ignored or glossed over. Self-evidently, section 117B(6) is engaged whether the child will or will not in fact or practice leave the UK. It addresses the normative and straightforward question - should the child be “expected to leave” the UK?”
75. I respectfully agree. It is clear, in my view, that the question which the statute requires to be addressed is a single question: is it reasonable to expect the child to leave the UK? It does not consist of two questions, as suggested by the Secretary of State. If the answer to the single question is obvious, because it is common ground that the child will not be expected to leave the UK, that does not mean that the question does not have to be asked; it merely means that the answer to the question is: No.”
60. So far as we are aware, the Court of Appeal had not, before Runa, considered under section 117B(6) a factual scenario in which one parent had a right to remain in the UK and the other did not. The Court of Appeal explained in Runa what a tribunal should do in those circumstances, namely make findings as to what the parent with a right to remain would do (i.e. would they stay, or would they leave with the parent who had no right to remain and, if they did leave, what would the family’s circumstances be in the country of return) and then, having made those findings, answer the question whether, in those circumstances, it was reasonable to expect the child to leave the UK.
61. We do not agree with counsel for the appellant that there is a divergent approach in the cases. Even if EV (Philippines) had been a decision on section 117B(6), which it was not, what Lewison LJ said in EV (Philippines) at [58] would be entirely consistent with the decisions in Runa and in the other cases referred to by Singh LJ in Runa at [42]. Whether the tribunal is considering what is in the best interests of the child or the question whether it would be reasonable to expect the child to leave the UK, it is clearly relevant for the tribunal to determine whether, as a matter of fact, or, to put it another way, in “the real world”, the removal of one parent would lead to both parents leaving the UK or would lead to one parent leaving, and the other parent remaining in, the UK. The answer to that factual question forms an important, and potentially determinative, part of the context, since it would be a significant factor in considering both the best interests of the child and whether it would be reasonable to expect the child to leave the UK if the removal of one parent would, in fact, or in “the real world”:
(1) lead to both parents leaving the UK, in which case the child would only be able to live with either parent if the child left the UK; or
(2) lead to only one parent leaving the UK, in which case the child would not be able to live with both parents at the same time and a decision would have to be made as to where, and with whom, the child was to live.
62. As for counsel’s submission about Lord Carnwath’s decision in KO, it is the case that the section 117B(6) question requires the tribunal to assume that the child might leave the UK with the parent whom the respondent seeks to remove. Only then can the tribunal ask itself whether it would be reasonable to expect the child to do that. We do not read anything which Lord Carnwath said as contrary to that analysis. Moreover, if the tribunal asks itself whether it would be in the best interests of the child, or whether it would be reasonable to expect the child, to leave the UK then it is, as we have said, clearly relevant for the tribunal first to determine whether the child would be leaving the UK with both parents or with only one parent. Again, we do not read anything which Lord Carnwath said as inconsistent with that proposition.
63. We note that a Presidential Panel of the Upper Tribunal decided much the same in Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC) (“Younas”) (promulgated only a month before the decision in Runa) when considering a case in which the father was a British citizen and the mother (with no right to remain) would only need to leave the UK with the child for the several months necessary to obtain entry clearance. The panel made clear that the tribunal had to base its analysis on the facts as they were in the real world and that that included consideration of everything relating to the child, both in the UK and in the country of return, such as: whether they would be leaving the UK with both or just one parent; how removal would affect their education, health and relationships with family or friends; and the circumstances in the country of return (see [111] – [112]).
64. Our only caveat is that care must be taken when reading the decision in Younas not to misunderstand. The Upper Tribunal said at [111]:
“A court or tribunal must base its analysis of reasonableness on the facts as they are (having assumed, for the purpose of this analysis, that the child will leave the UK with his or her parent or parents).”
65. The headnote reads:
“Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.”
66. For the avoidance of doubt, we do not consider that the panel was, by starting with the assumption that the child would leave the UK, suggesting that a tribunal must assume, hypothetically, that the child was going to leave the UK, and then ask the question what the parent who had a right to remain would do if the child were leaving with the other parent. We consider that they were simply underlining that the section 117B(6) question must be asked, regardless of whether the child would in fact leave the UK. In AB (Jamaica), no-one suggested that the tribunal had to consider whether the mother of the children would leave the UK to live in the country of her former partner, rather than be separated from her child. Instead, it was recognised that, in fact, no-one expected the child to leave the UK, but the question had to be asked whether, in a scenario where the father was leaving and the mother was staying, it was reasonable to expect the child to leave the UK. Singh LJ was quite clear about this in Runa, explaining that in AB (Jamaica) (in which he was part of the Court) it had been decided that the question was a normative one, in other words that the full background facts must be found, and the question then asked whether, in those circumstances, it would be reasonable to expect the child to leave the UK.
67. As for the submission based on NA, we do not consider that it is necessary for us to decide, for the purposes of this appeal, whether there is either a legal or evidential presumption that a parent with a right to remain in the UK will remain in the UK if the other parent leaves the UK. We note, however, that, in a different context, the Court of Appeal held in NA that there was no presumption either way: expecting a child to leave with their parents was simply a starting point. It may be that a similar position applies in cases such as the present: expecting that a parent with the right to remain will remain is not a presumption, but simply a starting point.
68. We do, however, agree with counsel for the appellant that the FtTJ appeared to consider the child’s position as if the test were whether there would be insurmountable obstacles to the family unit, including the child living in India. The FtTJ said, at [38]:
“it is normally reasonable for a child to be with their parents and if the parents have to leave the UK, the natural expectation would be that the child would go with them.”
69. There is no recognition in that paragraph, or anywhere else in the FtTJ’s decision, that Ms Masih is a British citizen who cannot be required to leave the UK, so that only one of the child’s parents had to leave the UK. The FtTJ simply did not embark on the right fact-finding exercise in respect of section 117(B)(6) or paragraph EX.1(a), which has similar wording and should be construed similarly.
70. The error is a material one. Whether Ms Masih would stay in the UK or go to India could clearly make a difference to the answer to the question whether it was reasonable to expect her child to leave the UK.
71. Accordingly, we conclude that the decision involved an error of law and must be set aside. We consider that the appeal should be retained in the Upper Tribunal for remaking, given that the factual issues which remain to be decided are narrow.
72. We have found no error in the FtTJ’s conclusions: that the appellant fails to meet the requirements of paragraph EX.1(b) (“insurmountable obstacles”); that there was no family life between the appellant or Ms Masih and Ms Masih’s mother and siblings; or that there were no very significant obstacles to the appellant’s integration into India. It follows that those findings will be preserved.
(7) Notice of Decision
73. The FtTJ’s decision is set aside for material error of law.
74. The findings at [23] to [25], [28] to [30], [32, apart from the last sentence], [36], [37] and [40] are preserved.
75. Remaking of the decision is retained in the Upper Tribunal.
(8) Directions
76. The remaking hearing will be listed with a time estimate of 2 hours, subject to any contrary time estimates, which are to be supplied within 7 days. Counsel for the appellant’s availability will be taken into account when listing.
77. The appellant may rely on any updating evidence, such evidence to be filed and served at least 7 days before the remaking hearing.
78. If an interpreter is required for the remaking hearing, the Upper Tribunal is to be notified as soon as possible, and no later than 14 days before the remaking hearing.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2026