Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003979

First-tier Tribunal No: HU/52314/2024
LH/05881/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

EDMOND DUSHI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMNT
Respondent

Representation:
For the Appellant: Mr A. Miah, counsel instructed by Harris Ali solicitors
For the Respondent: Ms A Ahmed, Senior Presenting Officer

Heard at Field House on 9 December 2025

DECISION AND REASONS

1. The Appellant is a citizen of Albania born on 18 March 1984.

2. He appeals, with the permission of the First-tier Tribunal (‘FTT’) (Judge Hollings-Tennant) against the decision of FTT Judge (‘FTTJ’) Hussain dated 19 May 2025. The FTTJ dismissed his appeal against the Respondent’s refusal dated 31 July 2023 of his human rights claim made on 24 June 2021.

Background

3. The Appellant entered the UK without valid leave on 18 February 2008. He remained in the UK without leave (having unsuccessfully sought to regularise his leave in 2012 and 2015) until 11 July 2016, when he was granted leave to remain outside of the Immigration Rules valid until 11 January 2019. His leave was extended so as to expire on 5 July 2021.

4. On 24 June 2021, the Appellant made an in-time application to extend his leave on the basis of his private life. That was initially refused and certified with no right of appeal. The Respondent reconsidered the decision following an application for judicial review. The claim was refused on 31 July 2023 with a right of appeal. The Respondent:

4.1. acknowledged that the application did not fall for refusal on suitability grounds;
4.2. did not accept that there were very significant obstacles to the Appellant’s integration in Albania (paragraph 276ADE(1)(vi) of the Immigration Rules); and
4.3. did not accept that there were exceptional circumstances which would render the refusal of leave to remain a breach of article 8 ECHR.

The appeal to the FTT

5. The Appellant appealed, in-time, to the FTT on private life grounds only.

6. The appeal was heard by the FTT on 9 April 2025. In a decision dated 19 April 2025, FTTJ Hussain:

6.1. acknowledged that there were no credibility issues;
6.2. referred to paragraph 276(1)(vi) (although the Judge incorrectly referred to the test as ‘insurmountable obstacles’ on more than one occasion, as opposed to the correct test of ‘very significant obstacles’. No point was taken on this by the Appellant in this appeal and there is no obvious error in terms of the application of the correct test);
6.3. acknowledged that the Appellant had been away from Albania for 17 years and is a very skilled builder;
6.4. noted that the Appellant would not be able to earn as well in Albania as he is earning in the UK;
6.5. noted that the Appellant has family in Albania who could help him re-settle in the country;
6.6. acknowledged that the Appellant would probably not be a burden on the taxpayer if allowed to stay in the UK;
6.7. confirmed that he had had regard to the public interest considerations in s.117B of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’); and
6.8. did not accept that the Immigration Rules were met or that there were exceptional circumstances which would justify a grant of leave under article 8 ECHR.

The appeal to the UT

7. The Appellant sought permission to appeal to the Upper Tribunal (‘UT’) on two grounds of appeal:

7.1. Breach of natural justice: the Appellant maintains that the FTTJ indicated at the outset of the hearing that he did not think the Appellant’s case had any merit (‘in essence’ saying that the Appellant had not been in the UK for 20 years, that there were no very insurmountable obstacles to integration and no exceptional circumstances) creating the impression that he was biased
7.2. Flawed approach to article 8 ECHR: the Appellant maintains that the FTTJ failed to adopt a proper balancing exercise taking into account all factors in the Appellant’s favour.

8. Permission was granted on all grounds.

9. The Respondent submitted a rule 24 response. The Respondent does not accept that any such preliminary discussions took place, as alleged, or that the approach to article 8 ECHR was flawed.

10. The matter was listed for hearing before this Tribunal on 9 December 2025. I was provided with a bundle of documents comprising 293 pages. I was also provided with an audio recording of the FTT hearing. Prior to the hearing, I listened to both the preliminary discussions and the closing submissions in that audio recording. I was not asked at the hearing to listen to the oral evidence, or any other part of the recording, nor do I consider it necessary for me to do so.

11. Within the bundle was a witness statement from counsel who appeared for the Appellant at the FTT. Within her statement she sets out her extensive experience representing in immigration appeals and her recollection of the FTTJ’s comments at the hearing. Specifically, she said that the FTTJ began commenting on the case before she had set out all of her papers and that, within his commentary, the FTTJ said words to the effect that the Appellant had not resided in the UK for 20 years, that there were no very significant obstacles to removal and there was nothing exceptional in his case. She said that this left the impression upon her that the FTTJ approached the appeal with a closed mind and that, when she left the hearing, she felt sure that the appeal would be dismissed. I note that she did not raise any concerns with the FTTJ at the hearing, nor before the decision was received. This is a matter to which I can have regard applying the approach in PA (Protection claim, Respondent’s enquiries, Bias) [2018] UKUT 337, although I have not found it to be a material point in my determination of this appeal.

12. At the outset of the hearing before me, it became clear that neither party had been offered an opportunity to listen to the audio recording or agree a transcript before the hearing. With the parties’ agreement, I played the audio recording in open court before hearing submissions. Mr Miah confirmed that only the preliminary discussions were relevant. I took a note of those discussions which I read back to the parties. We listened to the recording on more than one occasion and agreed a transcript/note as follows:

Appellant's counsel: C
Presenting Officer: PO
FTTJ Hussain: J
Appellant: A

Hearing started with preliminary discussions about the witnesses and who was giving live evidence.

C: ”Shall I ask A or other witnesses to leave the room. I am entirely in your hands. Don’t think there is any controversy in this case”
J: “What is this case going to, in the end, hang on. I mean he has got no children”
C: “No children”
J: “He thought there was one who was his but turned out to be someone else’s”
C: “Yes”
J: “So not playing a role in upbringing of any children”
C: “No”
J: “What is case about”
C: “His private life”
J: “Not been here 20 years”
C: “No”
J: “So going to have to rely on what was subparagraph (vi)”
C: “Yes”
J:” Very significant obstacles to integration”
C: “Yes, very significant obstacles or exceptional circumstances”
J: “No exceptional circumstances in the rules”
C: “No that would be article 8”
J: “Yes, outside the rules”
C: “Yes”
J: “Ok. So that is A’s case”
C: “Yes – just saying in terms of live evidence”
J: “Sorry yes – I can’t see what possible impact the other witnesses will have”
C: “They are going to his private life”
J: “I know but his private life is what it is – he works”
C: “Yes he works, he has got a business”
J: “SSHD is not going to deny that he works are you”
PO: “No”
J: “What else is he going to say – he has lived here, has loads of friends, is well liked”
C: “Understand what you say”
J: “So can’t see any difficulties in having all the witnesses present – that is my view. Mr Allott”
PO: “No concerns – not any issues of credibility”
J: “No credibility issues”

13. I am satisfied that given the existence of the live recording of the hearing, and the opportunity that all participants had to listen to it, there was no justification for a transcript in this case. I am also satisfied that, given the recording was the best evidence of what had in fact occurred at the hearing, there was no requirement for the FTTJ to be contacted for his comments on the first ground of appeal. That ground fell to be evaluated on the basis of the evidence of the hearing which had been recorded.

14. I heard submissions from both representatives. I do not propose to rehearse the submissions here but will consider what was said during my analysis of the grounds of appeal.

15. At the end of the hearing, I indicated that my decision would be reserved.

Discussion

16. As to the first ground of appeal, I have had regard to the guidance in BW (witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC). As explained in that case, justice must not only be done but must manifestly be seen to be done. It is a fundamental rule of adjudication that an open mind must be conscientiously maintained until the conclusion of the adjudication process. I have also had regard to the guidance in Elais (fairness and extended family members) [2022] UKUT 00300. In that case, the UT addressed the topic of judicial preliminary indications. Provided that a judge maintains an open mind to the conduct of the hearing and the determination of the issues, there can be no objection to a judge giving an indication of the tribunal’s preliminary or provisional judicial view.

17. As to the second ground of appeal, I have reminded myself of the authorities which set out the distinction between errors of fact and errors of law and which emphasise the importance of an appellate tribunal exercising judicial restraint when reviewing findings of fact reached by first instance judges (as summarised by Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464). In reaching my conclusions, I acknowledge that the UT should be slow to infer that a relevant point has not been taken into account simply because it is not expressly mentioned by the judge below (applying MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi) and should not too readily assume that the FTT misdirected itself just because not every step in its reasoning is fully set out (R (on the application of JR (Jamaica)) v SSHD [2014] EWCA Civ 477).

Ground 1

18. This was pursued by Mr Miah on the basis of both actual and apparent bias.

19. Mr Miah submitted that the FTTJ appeared to have closed his mind to the possibility of the appeal being successful. Paragraph 3 of the grounds of appeal says that the FTTJ indicated at the outset of the appeal hearing that he did not think the Appellant’s case had any merit. This echoes what was said by counsel in her witness statement.

20. This ground of appeal and counsel’s recollection of what the FTTJ said, however, is not supported by the agreed transcript above. Whilst I do not doubt that counsel’s recollection is genuine, it is wrong. The FTTJ did not say that there were no very significant obstacles nor that there were no exceptional circumstances. Mr Miah acknowledged that. Nor did the FTTJ indicate that he did not think the Appellant’s case had any merit (‘in essence’ or expressly).

21. The FTTJ did go through the elements of the Immigration Rules in a tick box fashion, identifying what was and was not in issue. Whilst I agree with Mr Miah that it would have been better for the FTTJ to use phraseology such as “what are the issues in the case?” instead of “what is this case going to hang on?”, I do not accept that by working through the issues in the way he did, the FTTJ demonstrated a closed mind. Nor do I accept that he gave an appearance to a fair-minded observer that he had such a closed mind.

22. I also agree with Mr Miah that the FTTJ could have used more neutral language when discussing the relevance of the live witnesses. Phrasing such as “is the evidence of the witnesses likely to be disputed?” rather than “I can’t see what possible impact the other witnesses will have” would have been better. This discussion, however, was in the context of whether the witnesses could be permitted to remain in the room whilst the Appellant gave evidence. It was not, and when considered in context, could not reasonably have been interpreted as, an indication that the FTTJ’s mind was closed in respect of the substantive appeal.

23. There was no actual or apparent bias as alleged. This ground of appeal is dismissed.

Ground 2

24. The FTTJ considered the Appellant’s article 8 ECHR claim both within and outside of the Immigration Rules. Mr Miah submitted that the reasoning was inadequate, that the FTTJ failed adequately to deal with the Appellant’s relationship with the child he had wrongly believed to be his, and that he failed properly to consider the Appellant’s lawful period of leave in the proportionality balance.

25. I do not accept that there was any such error. The FTTJ noted that the Appellant did not claim to have family or private life with the woman he had previously believed to be the mother of his child but acknowledged that the Appellant did claim to maintain an interest in the child’s welfare. That interest is set out in the Appellant’s witness statement and accurately reflected in the FTTJ’s decision. The Appellant is in contact with the child and often buys things for her. There was no suggestion in the evidence that he plays a significant, active role in the child’s life. That is reflected in the comments made by the Appellant’s counsel at the outset of the hearing (see above), that the Appellant was not playing a role in the upbringing of any children. A fair reading of the determination in its entirety suggests that the FTTJ was aware, and took into account, the limited role the Appellant played in the child’s life.

26. The FFTJ accurately recorded that the Appellant had away from Albania for about 17 years, that he has friends and supporters and is a skilled builder. He also recorded at the outset of the determination that the Appellant had been granted leave to remain in July 2016. He can be taken to have been aware, therefore, that part of the Appellant’s time in the UK was lawful. As set out above, I must be slow to infer that a relevant point has not been taken into account simply because it is not expressly mentioned (particularly where, as here, it was mentioned but in a different part of the determination).

27. A careful and fair reading of the determination does not demonstrate a flawed approach to the assessment under article 8 ECHR. There are no very significant obstacles or exceptional circumstances in this case. There was no material error of law. This ground of appeal is dismissed.

Notice of Decision

28. The decision of the FTT (Judge Hussain) dated 2 December 2024 did not contain material errors of law. The appeal is dismissed.

J. SMEATON

Deputy Upper Tribunal Judge Smeaton

23 December 2025