Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004268

First-tier Tribunal No: HU/51420/2024
LH/01139/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

KEVIN ANDRE EDOUARD YAPO
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Pullinger, Counsel instructed by Calices Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 5 December 2025

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal, promulgated on 11th March 2025, dismissing the appellant’s appeal against a decision of the Secretary of State made on 5th February 2024, refusing his human rights claim.
Background to the appeal
2. The appellant is a national of Cote d’Ivoire. On 18th June 2018 the appellant was granted leave to enter as a Tier 4 (General) Student valid until 24th October 2014. On 5th July 2012, the appellant entered the UK. On 13th March 2013 the appellant’s leave was curtailed to expire on 29th November 2013. On 26th November 2013, the appellant applied for leave to remain as a Tier 4 (General) Student. On 13th April 2015, that application was refused.
3. On 4th March 2014, the appellant applied for an EEA residence card as the family member of an EEA national. That application was refused on 14th November 2014. On 5th September 2015, the appellant left the UK.
4. On 23rd January 2018, the appellant was granted leave to enter the UK as a spouse valid until. 23rd October 2020. On 2nd February 2018, the appellant entered the UK. On 5th October 2020, the appellant applied for further leave to remain as a spouse. On 11th March 2021, the appellant was granted leave to remain valid until 29th September 2023.
5. On 26th September 2023, the appellant applied for leave to remain as a spouse. On 5th February 2024, that application was refused. The appellant appealed against that decision.
6. The Tribunal dismissed the appeal. The judge found that the refusal of leave to remain did not lead to unjustifiably harsh consequences. The judge further found that the appellant could leave the UK and apply for leave to enter as a spouse. He also found that the appellant could apply in-country as the dependent of a skilled worker. The judge found that the decision of the respondent was a proportionate decision.
7. The appellant sought permission to appeal. Permission to appeal was initially refused by Judge Clarke (now RJ Clarke) on 25th July 2025. The appellant renewed his application for permission to appeal to the Upper Tribunal. Upper Tribunal Judge Reeds granted permission on 9th October 2025 on all grounds.
8. On 30th October 2025, the respondent lodged a Rule 24 response. On 22nd November 2024, the appellant lodged a response to the Rule 24 response and an application to adduce new evidence.
9. The appeal came before me at an error of law hearing on 5th December 2025. There was one issue:
a. Whether the judge had erred in his assessment of proportionality by failing to weigh the positive factors in favour of the appellant when making his assessment, by failing to adequately explain his reasons and by failing to explain how the appellant could pursue an in-country application
The error of law hearing
10. At the hearing before me, the appellant was represented by Mr Pullinger, Counsel instructed by Calices Solicitors. The respondent was represented by Mr Tufan, a Senior Home Office Presenting Officer.
11. In his submissions, Mr Pullinger submitted that there was a failure to provide adequate reasons and how the various factors related to the Article 8 balancing exercise. He submitted that, overall, the decision was confused. Mr Pullinger said that there was firstly a question of whether the point made at [27] of the decision was a submission or a finding. He said that it was unclear whether the judge was referring to an out of country application as a dependent or a spouse but that [34] clarifies that the judge was referring to an entry clearance application as a spouse which was something the appellant could not do as his spouse was not settled in the UK. Mr Pullinger said that the main issue was the in-country application as a dependent. He said that the appellant had lawful leave at the time that he made his application but at that stage his sponsor had been made redundant and did not have a job. He said that the judge recorded this as an explanation but failed to record that dismissing the appeal would have the effect of making the appellant an overstayer and he could only overcome that hurdle if the respondent agreed to overlook the overstaying. Mr Pullinger submitted that there was also no guarantee that the application would be successful and this was something which had not been considered by the judge when finding that the appellant could make an in-country application as a spouse. He submitted that the judge had also failed to analyse whether the other financial and technical requirements would be met as a dependent.
12. Mr Pullinger said that both parties had agreed that the case was advanced on Article 8 outside the Immigration Rules but the judge had failed to consider the reasonableness of continuing family life outside the UK and instead had said that he did not need to make a finding regarding this because the appellant and his family intended to live in the UK and he had options available to him. He submitted that if the judge found that the appellant could not continue his family life in Cote d’Ivoire then the appellant met the Immigration Rules. Mr Pullinger further submitted that there was no consideration of the effect on the sponsor if the appellant left the UK and that the judge did not explain why the appellant’s stepdaughter’s welfare would be preserved if the appellant left the UK to make an entry clearance application. He submitted that the judge should have done more in relation to the assessment of best interests.
13. In his submissions, Mr Tufan acknowledged that the judge may have gone beyond his remit in suggesting that the appellant was in a position to apply in-country but he submitted that there were otiose comments and did not go to the heart of the adverse decision. He submitted that the adverse decision was based on the Chikwamba v SSHD [2008] UKHL 40 point which was the fact that the appellant could go and make an entry clearance application from abroad as the law and public interest requires. Mr Tufan referred to the decision in Younas (section 117B(6)(b): Chikwamba: Zambrano) [2020] UKUT 129 (IAC) and said that even if someone would still succeed on an application, the law required there to be very exceptional circumstances for them not to return to make an entry clearance application. He submitted that [28] did not impact on the findings in the last sentence of [27]. Mr Tufan said that the core finding was that there would not be unjustifiably harsh consequences if the appellant had to make an entry clearance application from abroad.
14. Mr Tufan said that it was accepted that Appendix FM could not succeed and that therefore paragraph EX.1 could not come into play. He said that it was Article 8 outside the Immigration Rules only i.e. whether there would be unjustifiably harsh consequences if the appellant had to return to Cote d’Ivoire to make an entry clearance application. He submitted that the judge had considered this.
15. In response, Mr Pullinger submitted that the question of the appellant making an in-country application clearly formed part of the judge’s Article 8 assessment and was fully within the judge’s mind as a significant feature. He said that if the judge was saying the appellant could go and make an entry clearance application but there was no consideration of whether it would be successful then that was clearly an error because it would be perverse to say the appellant can always make an application without knowing how likely it was to be successful. Mr Pullinger submitted that the appeal was primarily put forward as outside the Immigration Rules but EX.1 was considered by both parties and the judge throughout. He submitted that to then decline to make a finding regarding this was an error.
Error of law decision
16. I bear in mind that an appellate Tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so I apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]. I further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72].
17. However, I find that there is a material error of law in the judge’s decision.
18. At [27] of the decision, the judge states that the appellant would meet the requirements of the Immigration Rules for the purposes of an entry clearance application from abroad. It is not clear whether this refers to an entry clearance application as a dependent of a skilled worker or whether the judge was referring to an application under Appendix FM; if the latter, then the appellant cannot meet the requirements of Appendix FM because his spouse is not settled in the UK. She only has limited leave to remain as a skilled worker. A finding that the appellant could make a successful entry clearance application from abroad under Appendix FM would therefore be an erroneous finding.
19. It was submitted, on behalf of the appellant, that it was incumbent on the judge to consider Paragraph EX.1 of Appendix FM under any proportionality assessment because if the judge found that there were insurmountable obstacles which meant that the appellant and his spouse could not continue their family life outside the UK then the appellant would meet the requirements of Appendix FM. In fact, the appellant could not do so because his spouse is not settled in the UK.
20. The judge, at [28] of the decision, goes on to find that the appellant was in the position to apply in-country as the dependent of a skilled worker. There is no assessment of the requirements to be met for such an in-country application and it is unclear on what basis the judge has found that the appellant was eligible to make such an application. It was necessary for the judge to make clear findings with regard to whether the appellant would meet the requirements of the Immigration Rules particularly as it is on this basis that the judge finds at [28] that it was proportionate to refuse the appellant’s human rights appeal.
21. It was submitted, on behalf of the appellant, that the judge had failed to take account of the fact that the appellant would become an overstayer prior to being able to make an application after the refusal of his appeal. However, paragraph SUI 13.1(b)(ii)(4) confirms that an applicant will not be treated as an overstayer if the application is made within 14 days of an appeal in relation to the previous application being concluded. The requirement for the respondent to accept that there was a good reason why the appellant overstayed only becomes relevant where an application is made within 14 days of the expiry of a person’s leave to remain where there has not been an appeal [SUI 13.1(a)].
22. At [33], the judge states that little weight should be placed on the private and family life which has been accrued whilst the appellant’s status in the UK is precarious. The judge then goes on to refer to private life but not family life but later in the same paragraph refers to the appellant’s spouse and therefore the appellant’s family life. The judge notes that the appellant entered into his current marriage when he had limited leave to remain in the UK on the basis of his previous marriage. The implication in that paragraph is that the judge has accorded little weight to the appellant’s family life because he had limited leave to remain in the UK. In fact, whilst little weight should be placed on a private life which is established at a time when the person’s leave to remain in the UK is precarious, a different test is applied for a family life established in the UK. Section 117B(4) confirms that little weight should be placed on a relationship formed with a qualifying partner which was established at a time when the person was lawfully in the UK. In this appeal, of course, the appellant’s spouse was not a qualifying person in any event because she was not settled in the UK. The reasoning within [33] is somewhat unclear given the reference to both family and private life initially, then to the test relating to private life and then to the appellant’s family life.
23. At [34] the judge finds that there would be no unjustifiably harsh consequences if the appellant returned to Cote d’Ivoire but does not make any findings as to whether he finds this to be the case because the appellant would be able to make an entry clearance application to return to the UK or because family life could continue outside the UK. The judge then finds that the appellant would not leave the UK in ‘real life’ in any event. The basis for this finding is unclear. It is not clear whether the judge is finding that the appellant would actively choose not to do so in which case there are no clear findings as to why he would not or whether the appellant does not have to leave because he can make an in-country application as the dependent of a skilled worker in which case there are no clear findings as to whether the appellant would, in fact, meet the requirements as a dependent. Furthermore, if the appellant would be successful in an in-country application because he meets the requirements of the Immigration Rules, this is not clearly factored into the proportionality assessment as a positive factor on the side of the appellant. It is only factored in as a negative factor against the appellant.
24. At [35] the judge notes that both representatives made submissions regarding the reasonableness of the family continuing their family life in Cote d’Ivoire. The judge finds that he is not required to make findings regarding this because the appellant has other options available to him. However, that is infected by the lack of clear findings about whether the appellant could, in fact, make an application in-country as a dependent of a skilled worker.
25. At [36] the judge finds that it is the best interests of the appellant’s stepchild for the status quo to remain. This again is based on the finding that the appellant is able to make an in-country application as a dependent. At the end of [35] the judge finds that in any event if the appellant left the UK to make an entry clearance application, the appellant’s stepdaughter’s welfare would ‘equally be preserved’. The judge gives no clear reasons for making the finding that the appellant’s stepchild’s welfare would be preserved in the absence of the appellant although this may be a reference back to findings at [27].
26. The judge’s findings are predominantly based on the appellant being able to make an in-country application and not having to leave the UK. However, in making that finding, there is no clear consideration and application of the Immigration Rules regarding the dependents of skilled workers and whether the appellant would, in fact, meet those requirements. In the absence of those findings, it is difficult to see on what basis the judge concluded that there would be no disruption to the appellant’s family life. That then infects the rest of the judge’s findings as he does not go on to consider the proportionality of continuing family life outside the UK and the reference to being able to apply for entry clearance appears to relate to applying under Appendix FM which is not open to the appellant because his spouse is not settled in the UK.
27. For the reasons given above, I conclude that the First-tier Tribunal decision did involve the making of an error of law.
28. I have considered whether it is necessary to remit the matter to the First-tier Tribunal. There is a need for findings to be made regarding the evidence of the appellant and any witnesses. In those circumstances, I find that it is appropriate for the decision to be wholly set aside and for the appeal to be remitted to be reheard before the First-tier Tribunal afresh.
Notice of decision
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the appeal to the First-tier Tribunal to be heard by a different judge. For the avoidance of doubt, none of the findings of fact are preserved.

F Beach

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th December 2025