Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004233
First-tier Tribunal No: HU/54469/2024
LH/01196/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 September 2026

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

ASAD RASUL OSMAN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 10 July 2026

DECISION AND REASONS
Outcome
1. Having discussed the appeal with Ms Simbi, and as per the respondent’s position in the rule 24 response that the appellant’s claim under Article 8 ECHR was accepted and that the Secretary of State was prepared to grant a further period of discretionary leave, she agreed that the appellant’s appeal on human rights grounds must be allowed.
2. We explained to the appellant that although his appeal was allowed that did not mean that he could, through this appeal, achieve the result he was hoping for, namely obtaining indefinite leave to remain.
3. We indicated that we would give our reasons in writing as we now do. The writer apologises to the appellant for the time taken to prepare the decision.
Background
4. We are hearing this appeal following the decision of UTJ O’Brien (see annexe attached) issued on 27 March 2026 to set aside the decision of the First-Tier Tribunal dismissing the appellant’s appeal and his giving directions for the appeal to be remade in the Upper Tribunal with no findings preserved.
5. The appellant appealed the respondent’s decision to refuse his application of 29 March 2023 for indefinite leave to remain based on 10 years continuous residence in the UK with leave and to refuse his human rights’ claim.
6. The important features of the appellant’s immigration history in the context of this appeal are the following:
• 2 June 2002 appellant entered UK (aged 16)
• 13 June 2002 appellant claimed asylum
• 6 February 2023 appellant granted exceptional leave to remain until 6 February 2007 (asylum refused)
• 8 September 2003 (aged 17) appellant commits offence of conspiracy to commit violent disorder
• 1 April 2005 appellant convicted and sentenced to 20 months’ detention in a young offenders’ institution (due to time served on remand the appellant did not return to detention)
• 28 March 2008 the appellant married Mrs Harris, a British citizen and they have 4 British citizen children (born in 2016, 2018, 2019 and 2020)
• December 2008 the appellant returns voluntarily to Iraq after he unsuccessfully appealed a decision to deport him, his wife followed him in February 2009 and then returned to the UK
• May 2010 the appellant returned to the UK
• September 2012 the appellant’s appeal against removal under the deportation decision was successful on human right’s grounds
• March 2013 the appellant was granted discretionary leave to remain with the latest leave on that route expiring on 31 January 2023
• 29 January 2023 the appellant applied for further leave
• 21 March 2023 the appellant applied for indefinite leave to remain and the application of 29 January 2023 was subsequently withdrawn
7. The appellant has attempted on several occasions to apply for indefinite leave to remain with the support of his MPs. He first applied for such leave in April 2015 having been told that he could not be granted ILR until he had lived in the UK for 10 years’ post-conviction. He was refused ILR at that time because he did not have 10 years’ continuous legal residence.
8. In March 2021, Kevin Foster MP, then the Minister for Borders and Immigration, wrote to the appellant’s MP, explaining that the 20 month sentence the appellant received in 2005 prevented him from qualifying for ILR for 15 years after the end of his sentence (we observe that provision was introduced in December 2012). He also wrote: “Whilst any future applications made by Mr Ozman will be considered under the new rules, consideration will also be given to any mitigating circumstances, such as his connections with the UK.”
9. Understandably, Mr Foster wrote at the end of the letter that as the appellant was not due to make a further application for two years or so, he could not guarantee the success of, or speculate on the outcome of, any further application the appellant might make.
10. It is unfortunate to say the least that the letter from Mr Foster did not make clear that since a change to immigration rules in December 2020, a custodial sentence of 12 months or more results in a mandatory refusal of ILR, as we explain below.
The appeal and its scope
11. The refusal letter accepted that the appellant had lived in the UK for ten years lawfully but concluded that he did not meet the suitability requirements of immigration rules because of the length of his custodial sentence. The letter also concluded that the appellant did not meet the requirements of the private life route (although he did meet the suitability requirements) saying that although he had lived in the UK for 20 years and 9 months at the date of consideration (sic) he could readapt to life in Iraq, and it would be open to him to live with his spouse and children in Iraq and the decision maker was not satisfied that there would be very significant obstacles to his return. A right of appeal was given. The respondent’s review clarified that it was the respondent’s case that the appellant failed to meet the requirements of suitability on the private life route (i.e. not only for ILR) based on his conviction.
12. An appellant only has a right of appeal to the tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 where the respondent has decided to refuse their protection claim, decided to refuse their human rights’ claim, or decided to revoke their protection status. A human rights’ claim has a specific statutory meaning. It is defined by section 113 of the 2002 Act as a claim that to remove a person from or require him to leave the UK would be unlawful under section 6 of the Human Rights Act 1998. By stating that the appellant had a right of appeal, the respondent accepted that they had refused such a claim by the appellant.
13. The only possible ground of appeal under section 84 of the 2002 Act is that the decision is unlawful under section 6 of the Human Rights Act 1998.
14. The case of Dani (non-removal human rights submissions) [2023] UKUT 293 makes clear that the Tribunal does not enjoy a broad, unencumbered jurisdiction to consider non-removal human rights submissions at large, and that section 7 (1) (b) of the Human Rights Act 1998 does not permit an appellant to advance a free-standing Article 8 claim in proceedings before the First-Tier Tribunal. That we are remaking the appeal in the Upper Tribunal matters not for these purposes. We only have the power in these circumstances to make decisions on appeal which the First-Tier Tribunal could make.
15. As UTJ O’Brien said, the refusal decision under appeal rendered the appellant prima facie liable for removal [10]. We are only empowered in a statutory appeal to decide whether removing the appellant or requiring him to leave would be a breach of his rights under Article 8 ECHR.
16. That means that we are not deciding, nor could we decide, whether the decision to refuse the appellant indefinite leave to remain breached his human rights, or whether the respondent should have exercised any discretion to grant the appellant indefinite leave to remain. We cannot exercise the judicial review functions of the Upper Tribunal on a statutory appeal.
17. Whether the appellant satisfies the provisions of immigration rules is important because where Article 8 is engaged and a person does satisfy the provisions of immigration rules, then that is positively determinative of that person’s appeal because it would then be disproportionate for them to be removed (see TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109).
18. At the date of application and the date of decision, rule 276B of the immigration rules provided that an applicant for indefinite leave to remain on the ground of long residence not only must have had at least 10 years’ continuous lawful residence in the UK but must not fall for refusal under the general grounds for refusal.
19. The general grounds for refusal applicable at the date of application and the date of decision, paragraph 9.4.1, provided that an application for permission to stay must be refused where the applicant has been convicted of a criminal offence in the UK for which they have received a custodial sentence of 12 months or more.
20. At the time of the error of law hearing before UTJ O’Brien, the respondent had not produced any record of the appellant’s conviction. UTJ O’Brien was concerned that the 20 months detention might have been part of a detention and training order which might mean that the appellant had not received a custodial sentence of 12 months or more.
21. The respondent produced a copy of a print of the appellant’s PNC record which was shown to the appellant during the hearing (the appellant did not have his glasses with him, so we read to him the contents of the record). That shows that he was sentenced to 20 months’ detention in a young offenders’ institution.
22. The immigration rules define “custodial sentence” as a period of imprisonment, not including a suspended sentence. “Period of imprisonment” is defined in immigration rules as having the same meaning as in section 38 (2) of the UK Borders Act 2007. That section explains that includes a reference to a person who is sentenced to detention in an institution other than a prison, including in particular a hospital, or an institution for young offenders.
23. The appellant therefore comes within the general grounds for refusal and cannot meet the terms of immigration rules relevant to indefinite leave to remain based on long residence. We are aware that the appellant is seeking to challenge his conviction, but unless and until there is a successful challenge, that conviction stands. We understand that the appellant believes that he did not receive a custodial sentence because he was remanded in custody before conviction and then told he would not need to serve any more after he pleaded guilty, but in law that still counts as a custodial sentence. A person who is sentenced to detention but is released because they have already served the relevant period is still taken in law as receiving a custodial sentence. We understand that the appellant feels suspicious because he was not interviewed and remanded until he had turned 18, a couple of months after the offence, but this makes no difference to the way he is treated under immigration rules post-conviction, and indeed he could under the criminal law have been remanded in a young offenders’ institution before he reached the age of 18.
24. When considering limited leave to remain under Appendix Private Life, or Appendix FM (as at the date of application and the date of decision) the suitability requirements were not so restrictive. Under Appendix Private Life, (PL 2.1) the application must not fall for refusal under the suitability grounds for refusal for leave to remain as set out in S-LTR 1.2 to S-LTR 2.2 and S-LTR 3.1 to S-LTR 4.5 of Appendix FM. Under S-LTR 1.4 a ground for refusal is that the presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months, unless a period of 10 years has passed since the end of the sentence. There are no other suitability grounds for refusal relevant to the appellant and more than 10 years has passed since the end of the appellant’s sentence. He therefore can potentially meet the requirements of immigration rules for limited leave to remain and does not automatically fail on suitability grounds.
25. Ms Simbi accepted in writing by response to UTJ O’Brien’s directions that the appellant’s Article 8 claim was accepted and the respondent was prepared to grant a further period of discretionary leave to remain, noting that following a grant of leave, any challenge to the refusal of indefinite leave to remain would properly fall to be pursued by way of judicial review. Her position was that once leave had been implemented, the statutory consequence under section 104 (4A) of the Nationality, Immigration and Asylum Act 2002 would be that the appeal would be treated as abandoned.
26. The statutory abandonment provisions only apply however if the appellant is granted leave. An appeal is not abandoned because the respondent is prepared in principle to grant the appellant further permission to stay in the UK.
27. As we concluded that the appeal had not been abandoned, Ms Simbi agreed that the appeal must be allowed. The respondent has accepted that the appellant’s Article 8 rights justify a further grant of leave and therefore that it would be a breach of Article 8 ECHR to remove the appellant from the UK or require him to leave the UK. This is no doubt due to the appellant’s private and family life in the UK enjoyed over a long period, and the best interests of his children.
28. We understand that the appellant and his wife have struggled for many years for the appellant to achieve indefinite leave to remain. The appellant told us what he and his family have suffered during that process, how his wife suffered with serious mental health problems, that he lost his job and felt broken by the stress, waiting and uncertainty, that he was not able to go to his stepfather’s funeral, his sister’s wedding or go to his brother’s wedding in Tunisia because they would not give him a visa if he only had discretionary leave, that he was not able to go with his children on holiday abroad or promise them he would still be here for them next year, and that sadly he and his wife are now separated. We reiterate as we told him, that all we can do by this appeal is to agree that it would be a breach of his human rights to remove him from the UK or require him to leave the UK. We understand that the appellant has refused again a recent offer of discretionary leave on the basis he pays the immigration health surcharge (or applies for a fee waiver if he cannot pay). Again, we cannot in this forum adjudicate on what leave if any the appellant should be given. That is a matter for the respondent, and we appreciate that limited permission to stay is usually dependent on paying the immigration health surcharge.
29. We urge the appellant to take legal advice on how best to proceed as by allowing his appeal, as we do, we are not resolving the issues between him and the respondent.
Notice of Decision
The appeal is allowed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 September 2026

Annex (error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004233
First-tier Tribunal No: HU/54469/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27/03/2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

ASAD RASUL OSMAN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mrs R Harris (spouse and lay representative)
For the Respondent: Mrs R Abdul-Karim, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 19 December 2025

DECISION AND REASONS
1. The appellant appeals against the decision of a Judge of the First-tier Tribunal (‘the judge’) dated 13 August 2025 dismissing his appeal against the respondent’s refusal dated 8 April 2024 to grant him indefinite leave to remain.
2. The judge found that the decision had been made in accordance with the applicable Immigration Rules and would not result in unjustifiable harshness for the appellant and his family. Consequently, the judge found that the decision was not unlawful.
3. Permission to appeal was granted by another Judge of the First-tier Tribunal on all pleaded grounds. The grounds of appeal in short assert that the judge erred in incorrectly applying the Immigration Rules, undertaking a flawed assessment of ‘very significant obstacles’, failed properly to assess proportionality, incorrectly finding that the appellant had provided no arguments on the issue of reintegration, and failing properly to assess the consequences of the decision, especially on his family.
4. I had the benefit of a combined bundle of documents produced by the Tribunal, which included the judge’s decision, the grant of permission and the material before the judge, as well as obtaining for myself the grounds of appeal uploaded by the appellant to MyHMCTS. The parties both made oral submissions. Whilst I refer below only to those matters necessary to understand my decision, I took the materials and submissions into account in their entirety.
Consideration

5. The judge correctly directed himself that the ultimate issue was whether the refusal breached Article 8 ECHR [34] but that the applicable Immigration Rules were the starting point [36]. In the same paragraph, the judge directed himself that the public interest ‘does not normally require refusal of leave to enter or remain’ if the Immigration Rules are met. In fact, the then Senior President of Tribunals, Sir Ernest Ryder made clear in TZ (Pakistan) v SSHD [2018] EWCA Civ 1109 at [34] that where a person’s case engages Article 8(1) a finding that they satisfy the Rules is positively determinative of their Article 8 appeal. Whether or not the judge’s self-direction was strictly consistent with TZ is, however, immaterial given the judge’s findings that the appellant did not meet the Rules.
6. It is that conclusion, and the judge’s consequential Article 8 assessment which must be examined.
7. The grounds criticise the judge’s application of the suitability provisions in Part 9 of the Immigration Rules. The grounds as pleaded assert that the judge applied Part 9 when assessing his application under Appendix PL, and the appellant’s skeleton argument asserts that the judge applied the suitability provisions of Appendix FM to the application under paragraph 276B. It is clear, however, that the judge did not do either, expressly applying Part 9 to the appellant’s case under paragraph 276B (see [42]) and noting at [48] that Part 9 did not apply to Appendix PL.
8. The criticisms which do have merit, however, are those regarding the judge’s approach to the consequences of refusal and his proportionality balancing exercise.
9. Dealing first with the judge’s findings on the consequences of refusal, he said the following at [65]:
‘65. I find that the refusal decision does not interfere with the Appellant’s right to respect for private and family life. The decision is one to refuse indefinite leave to remain and not to remove the Appellant from the UK. It does not restrict his right to continue his private of family life as he has done in the past. The best interests of the children are met because the family unit can be maintained.’
10. The judge had noted at [14] that the appellant’s application on 29 January 2023 for further leave to remain had been treated as withdrawn upon his applying on 29 March 2023 to vary the application to seek indefinite leave to remain. Consequently, the judge’s findings at [65] failed to take into account that refusal rendered the appellant without leave to remain (save as preserved by s3C of the Immigration Act 1971 until exhaustion of appeal rights). In short, the refusal rendered the appellant prima facie liable for removal. In any event, the judge considered and rejected the appellant’s case under Appendix PL. He could hardly expect any renewed application to succeed under that Appendix.
11. To the extent that the judge considered that there could be no significant interference in the appellant’s right to respect for family and private life until a removal decision was made, I am unable to accept that as a correct statement of the law. Otherwise, no appeal against a human rights decision could succeed until a removal decision is taken. The First-tier Tribunal regularly deals with and often allows appeals from appellants whose human rights claims have been refused but for whom removal decisions have not yet been made.
12. In any event, the judge sets out at [69] the consequences of refusal claimed by the appellant which at [70] he accepts may cause hardship and difficulties for the appellant and his family. It is impossible to reconcile those findings with having found there to be no significant interference in the family’s Article 8 rights.
13. Consequently, I find that the judge’s conclusion in effect that Article 8 was not engaged was not one reasonably open to him. Moreover, it appears that that was the determining factor in the judge’s proportionality assessment, and certainly was the determining factor in the judge's assessment of the children’s best interests.
14. Even if the judge’s conclusions on interference were not determinative, it is inevitable that they infected his assessment of proportionality. It is axiomatic that the less interference caused by a decision, the easier it will be for the public interest to prevail in a proportionality assessment.
15. I am in any event concerned by the lack of any apparent consideration of the letter from Kevin Foster MP, Minister for Future Borders and Immigration, dated 9 March 2021 (and so after the change to Part 9 relied upon in the refusal) quoting instead the previous provisions as if they remained extant, and also indicating the consideration ‘will also be given to any mitigating circumstances, such as [the appellant’s] connections with the UK.’
16. For the above reasons, I conclude that the judge’s conclusion that the decision was not disproportionate involved the making of an error of law and must be set aside.
17. I have considered whether it is necessary to remit the case to the First-tier Tribunal or whether this is a matter which can be retained for remaking. I have concluded that the latter course of action is appropriate. I also consider it appropriate for me to consider afresh the appellant’s satisfaction or otherwise of the Immigration Rules. It appears to me that whether the appellant falls foul of paragraph 9.4.1 depends on whether he was sentenced to 20 months’ detention in a Youth Offender Institution or a 20-month detention and training order, and I have seen no evidence on the point. To that end, I would expect the respondent to be able to provide me with a memorandum of the appellant’s conviction and sentence.

Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The appeal is retained for remaking in the Upper Tribunal with no findings preserved.

Directions
1. The parties shall file with the Tribunal and serve on each other a bundle of all of the evidence on which they rely no later than 14 days prior to the hearing to remake the decision.
2. The respondent’s evidence shall include a copy of a memorandum of the appellant’s conviction and sentence and/or any other documentation in her possession or control regarding his conviction and sentence.
3. The parties shall file with the Tribunal and serve on each other any skeleton argument on which they intend to rely no later than 7 days prior to the hearing to remake the decision.
4. The matter shall be listed for rehearing on the first available date after 9 April 2026.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 March 2026