Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003358

First-tier Tribunal Nos: HU/51955/2024
LH/00389/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 October 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

HM
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Slater of Counsel instructed by Ali & Ali Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 25 September 2025

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.

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan, who on 30th October 2023, applied for indefinite leave to remain in the United Kingdom on the basis of ten years’ continuous lawful residence. On 13th February 2024 a decision was made to refuse the application.
2. On 22nd February 2024, the Appellant gave Notice of appeal to the First-tier Tribunal and on 24th June 2025 his appeal was heard in Nottingham.
3. The relevant Immigration Rule was 276B. That Rule sets out the conditions, which an Applicant must meet if they are to be granted leave to remain on the basis of long residence.
4. Sub-rule (ii) requires the Respondent to be satisfied that: “having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence”. It would then follow in the provision a number of considerations to be taken into account in making the assessment:
“(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations, and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf.”
5. Sub-rules (iii) to (v) impose other conditions which the Appellant must not be found to be in breach of, including not falling for refusal under the general grounds for refusal.
6. In this matter the Respondent had referenced non-conducive grounds at rules 9.3.1 and criminality grounds at 9.4.1. It was the Respondent’s case that the applicant’s presence in the UK not conducive to the public good because of his conduct, and that he had caused serious harm.
7. The judge at first instance helpfully set out the background to this appeal in a very clear manner, it is helpful if I repeat what was set out in the decision and reasons now under appeal before me:
“5. The appellant is a national of Afghanistan. His parents are also nationals of Afghanistan. The appellant, his mother, and six siblings joined their father in the United Kingdom in 2012.
6. The appellant was 13 years old at the time. He has been lawfully in the United Kingdom since then. He lives with his parents and his six siblings.
7. The appellant is working. He is well thought of by his employers, colleagues, and his family members. There are letters to confirm this.
8. He has passed the equivalent of A-levels in engineering. He hopes to go to university to study engineering.
9. His application for indefinite leave to remain on the basis of 10 years’ continuous residence was refused because of his conviction of a criminal offence.
The Offence
10. The appellant appeared in a Magistrate’s Court on 12 October 2022. He had pleaded guilty to an offence of sexual assault on a female aged over 21 contrary to section 3 of the Sexual Offences Act 2003, page 140. He was sentenced to a community order for three years. He had to complete 80 hours unpaid work. He had to complete a Horizon Programme.
11. He was required to sign the sex offenders register for a period of 5 years.
12. The pre-sentence report is [contained in the bundle]. It gives details of the offence.
13. The victim was a 21-year-old female who had gone to work out in a gym. It was the first time she had gone to the gym. She became aware that the appellant was showing a particular interest in her. She felt uncomfortable. She covered herself up to avoid his attention. He followed her around the building and waited for her.
14. When she left the building, the appellant followed her and touched her back. He spoke to her. She tried to get away. He followed her and grabbed her buttock.
15. At the time of the presentence report the probation officer who prepared it said that the appellant was more concerned about his situation than having a genuine regret for having committed the offence. He had little understanding of how intimidating his conduct had been.
16. The victim said that she had not gone back to that gym because she was scared of meeting the appellant. She felt afraid in her own house. She had joined another gym with a female only section because of her experience.
17. The appellant has completed with his community order. He has not reoffended. He completed his 80 hours unpaid work by 15 December 2022. By June 2023 he had completed almost all his Horizon Programme. The probation officer thought that his conduct was such that he applied for early termination of the community order. This was granted. The probation officer thought that he was a low risk of reoffending.”
8. It was the Respondent’s case that the offence was such that it represented “serious harm” sufficient to displace his right of residence on the basis of ten years’ residency and there was no other sufficient basis to permit the Appellant to succeed. The judge agreed. The judge also found that the Appellant’s behaviour was such that it would not be conducive to the public good to allow his application.
9. In challenging the judge’s decision, the Appellant contended that the judge:
(a) Gave no separate consideration to the issue, whether it not be conducive to the public good to permit the Appellant to grant indefinite leave to remain.
(b) Failed to have regard to the fact that it was for the Respondent to establish that the offence was serious harm.
(c) Failed to following the guidance in guidance in R (Mahmood) and others -v- SSHD [2020] EWCA Civ 317.
(d) Found that there were no very significant obstacles to return when there was no sufficient evidence for the finding, all the more so given the area from which the Appellant had come, namely Nangahar.
(e) He erred in the general Article 8 considerations.
The Hearing before Me
10. After some lengthy consideration of the first ground, there was focus on where the judge had put the burden of proof. These are dealt with at paragraphs 10, 11 and 12. At paragraph 12 the judge had said:
“The burden of proof is upon the appellant on the balance of probabilities to show that he has an Article 8 ECHR private life in the United Kingdom which is interfered with by the decision under appeal. If that is shown it is for the respondent to satisfy me that the decision is legitimate, taken in pursuit of a legitimate aim, and necessary and proportionate in a democratic society.”
11. The difficulty is what is stated at paragraph 10. Because at paragraph 10, the judge stated:
“The burden of proof is upon the Appellant on the balance of probabilities to show that he meets requirements of paragraph 276B.”
However, rule 276B has various parts to it. Whilst it is right that it is for the Appellant to establish that he had been lawfully resident for ten years in the United Kingdom in accordance with the provisions of the Rule, it was for the Secretary of State to demonstrate those parts of 276B which defeat the Appellant in his application. The way in which the judge has drafted the various paragraphs under the heading burden of proof suggests that it was only with respect to the wider application of Article 8 that the burden was on the Secretary of State.
12. Without conceding the appeal, Ms McKenzie did accept that the legal burden in determining whether of not there had been serious harm and whether it was conducive to the public good for the Appellant to be removed were matters for the Secretary of State to prove.
13. In the circumstances, the balance of the decision becomes unreliable and has to be set aside. I considered whether or not I could remake the decision from the findings made by the judge but it seems to me that a whole reconsideration is necessary in this case so that the starting point, once the ten years’ lawful residence has been established, is determined by setting out in the first instance what the Secretary of State’s case is more fully from the evidence with the Appellant then meeting that.
DECISION
14. The appeal to the Upper Tribunal is allowed. The decision of the First tier Tribunal is set aside. This matter is remitted to be heard afresh at either Birmingham or Taylor House for a face-to-face hearing. No interpreter is required. Not to be listed before Judge Row.

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
26 September 2025