Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004313
First-tier Tribunal No: HU/62630/2023
IA/00653/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of June 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

THUVARAKESH VIJAYARANJAN
Respondent

Representation:
For the Appellant: Ms Nolan, Senior Presenting Officer
For the Respondent: Ms Tobin of counsel, instructed by S Satha & Co Solicitors

Heard at Field House on 27 April 2026

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals with the permission of the First-tier Tribunal against the decision of First-tier Tribunal Judge Rose. By his decision of 15 July 2025, Judge Rose (“the judge”) allowed the Mr Vijayaranjan’s appeal against the Secretary of State’s refusal of his human rights claim.

2. To avoid confusion, I will refer to the parties as they were before the FtT: Mr Vijayaranjan as the appellant and the Secretary of State as the respondent.

3. The relevant history to the appellant’s appeal was summarised concisely by the judge at [1]-[2] of his decision. He noted that the appellant is a Sri Lankan national who had entered the UK as a student in 2014 and had overstayed upon the expiry of his leave in 2016. The judge continued:

…the Appellant claims to have grown up in India and to have never visited Sri Lanka. Nevertheless, his family have a long history of involvement with Sri Lankan politics and the Tamil separatist movement. Since the expiry of the appellant’s leave to remain, he has claimed asylum, based on his own involvement in Sri Lankan political issues whilst in the UK. This was refused on the grounds that his involvement was not sufficient to put the appellant at any risk. In 2023, he married a Sri Lankan national, who is lawfully residing in the UK as a skilled worker migrant. Her visa expires in December of this year. He applied on the 17th August 2023 for leave to remain on the basis of his relationship with his partner and on his private life in the UK. This was refused on the 9th October 2023. The appellant’s wife gave birth to their first child on the 8th July 2024.

4. The appellant applied for leave to remain on 17 August 2023 (and therefore before the birth of their child). He relied on his relationship with his wife, stating that they had married on 9 June 2023 and lived together since then. He said that they could not live together outside the UK because his wife was in the UK as a Business Support Manager on a Skilled Worker visa.

5. The respondent refused the application on 9 October 2023. She noted that the appellant was in the UK without leave and she concluded that he could not meet the Immigration Status Requirement in Appendix FM of the Immigration Rules. She considered whether the appellant was able to meet paragraph EX1 of the Immigration Rules and she concluded that he could not because his wife was not settled and did not meet the relationship requirements as a result. Nor did she accept that the appellant would encounter very significant obstacles to integrating into Sri Lanka. Finally, she did not accept that his removal would otherwise be in breach of the ECHR.

The Appeal to the First-tier Tribunal

6. The appellant appealed to the First-tier Tribunal. In the course of that appeal, his representatives filed an Appeal Skeleton Argument settled by Ms Bayati of counsel and dated 16 July 2024. The ASA gave notice, alongside a separate Statement of Additional Grounds of the same date, that the appellant sought to rely on a claim that he would be at risk on return to Sri Lanka despite the dismissal of his previous appeal on protection grounds.

7. It was submitted in the ASA, firstly, that the appellant’s diaspora activities in the UK were significant and, secondly, that he would be at risk on return to Sri Lanka as a result. It was submitted, thirdly, that there would be very significant obstacles to the appellant’s integration to Sri Lanka and, fourthly, that his removal would in any event constitute an unlawful interference with his Article 8 ECHR rights. In total, therefore four submissions were advanced in the ASA, although the appellant recognised that he required the respondent’s permission to rely on protection grounds, since that was a new matter which had not been considered by the respondent in the decision under challenge.

8. The respondent undertook a review in light of the ASA on 1 November 2024. She did not give consent for the appellant to raise a protection claim, noting that there were “specific safeguards, security checks and considerations” given to such claims. She suggested that the appellant should withdrew the appeal and make further submissions in support of any protection claim but she acknowledged that he was able in the alternative to invite the tribunal to consider his asserted fear as part of the assessment of whether he would experience very significant obstacles to integration to Sri Lanka. (JA (Nigeria) [2021] UKUT 97 (IAC); [2021] Imm AR 952 refers.)

9. The respondent maintained that the appellant would not be at risk on return to Sri Lanka, and relied on the decision in his previous appeal in that respect. It was not accepted that the appellant would experience very significant obstacles to integration or that there were insurmountable obstacles to the appellant continuing his family life in Sri Lanka. The appeal was therefore resisted on ECHR grounds.

10. The appeal was heard by the judge sitting at Taylor House on 9 July 2025. The appellant was represented by Ms Bayati. The respondent was represented by a Presenting Officer, Ms Simpson. The judge refused an adjournment application which was made on the basis that the appellant’s wife was unable to attend the hearing. He then heard oral evidence from the appellant and both of his parents. There were submissions from both representatives, after which the judge reserved his decision.

11. In his reserved decision, the judge made findings which might be summarised as follows. At [28], he noted a contradiction in the evidence as to whether the appellant had ever lived in Sri Lanka. At [28], he resolved that issue in the appellant’s favour, finding that the appellant’s father’s memory was such that he was unable to rely on what he said in this respect. The judge accepted that the appellant had no family in Sri Lanka: [29]. He did not accept that the appellant would be at risk from the Sri Lankan authorities for reasons he gave at [30]-[32]. Nor did he accept that the appellant would face very significant obstacles to integration to Sri Lanka despite never having lived there: [33]. At [34], the judge then turned to consider Article 8 ECHR outside the Immigration Rules, directing himself that he should consider whether the appellant’s removal would result in unjustifiably harsh consequences. Having weighed what he considered to be the competing considerations at [35]-[43], the judge decided that the appellant’s removal would be contrary to Article 8 ECHR and he allowed the appeal on that basis.

The Appeal to the Upper Tribunal

12. The respondent sought permission to appeal. The grounds are poorly pleaded. The title of the ground suggests that the judge misdirected himself in law or failed to give adequate reasons but the nine paragraphs of grounds of appeal which follow raised five separate challenges to the judge’s decision. The judge who granted permission considered each point to be arguable.

13. On 16 October 2025, shortly after the judge had granted the respondent permission to appeal, Ms Bayati settled a response to the grounds of appeal under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. She responded to the points raised by the respondent, submitting that the grounds of appeal failed to establish any error of law in the judge’s analysis. She also sought permission to appeal in order to challenge the judge’s finding that there would not be very significant obstacles to the appellant’s integration to Sri Lanka.

14. On 4 November 2025, having considered what was said by Ms Bayati in the rule 24 response, the Secretary of State filed a short reply under rule 25. She accepted that there was no evidence in support of the fifth point raised in the grounds of appeal and she withdrew that point. As a result of that proper but belated concession, the respondent relied at the hearing before me on four points which might be summarised in this way:

(i) The judge had not given adequate reasons for his finding that the appellant’s father had memory problems which explained the inconsistency in the evidence.
(ii) The judge had given insufficient reasons for his conclusion that it would not be a long-term solution for an extended family member to care for the appellant’s child in his absence.
(iii) The judge had impermissibly speculated on the outcome of an application for entry clearance and in relation to the stability of the appellant’s wife’s employment.
(iv) The judge had failed to make a finding as to whether there were insurmountable obstacles to the appellant relocating to Sri Lanka with his wife and child.

15. At the outset of the hearing before me, I noted that the appellant required permission to pursue the contention that the judge had erred in law in his assessment of whether there were very significant obstacles to integration: rule 24(1C) of the UT Procedure Rules and Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC) refer.

16. Ms Nolan indicated that she opposed the grant of permission, although she was content to leave the matter in my hands. I indicated that I considered the ground of appeal to be arguable and I granted permission. I therefore heard Ms Nolan in amplification of the respondent’s remaining grounds of appeal and in response to the appellant’s ground of appeal before hearing from Ms Tobin in amplification of the appellant’s ground of appeal and in response to the respondent’s grounds of appeal. I then heard Ms Nolan briefly in response. Their submissions were in summary as follows.

Submissions

17. For the respondent, Ms Nolan submitted that the judge had speculated impermissibly in a number of respects. There was no medical evidence which supported the judge’s conclusion that the appellant’s father had a problem with his memory. The attempt to support the judge’s reasoning at [11] of the rule 24 response was noted but that too was impermissible because it was ex post facto reasoning which did not feature in the decision under appeal. The judge had also given no reasons for concluding that long term care could not be provided by an extended family member. The judge had speculated about the sponsor having stable long-term employment because the stability of her employment was contingent upon her securing further leave to remain. There was yet further speculation about the appellant being unable to succeed in an entry clearance application.

18. Ms Nolan submitted that the judge had failed to consider at any point whether the appellant and his wife and child could relocate to Sri Lanka and enjoy their family life there. In light of the fact that the appellant’s wife was on a temporary visa, that would be the usual expectation.

19. As for the appellant’s submission that the judge had erred in assessing very significant obstacles under paragraph PL5.1 of the Immigration Rules, that was opposed. The judge had been fully cognisant of the findings made by Judge Cary in the appellant’s first appeal and he had concluded for sound reasons that there was no proper basis to go behind those findings.

20. For the appellant, Ms Tobin submitted that the judge had been entitled to draw the conclusion that there was a problem with the appellant’s father’s memory; he had given his reasons for reaching that conclusion. Equally, the judge had been entitled to find that it would not be a “long-term solution” for the appellant’s extended family to look after his young child. Given the age of the child, who was just a year old at the date of the hearing, no further elucidation was required. The same was true of the judge’s finding that the appellant’s wife was in stable employment. The appellant’s wife had indicated in her witness statement that she intended to renew her visa and the respondent had told the judge, in response to the adjournment application, that she had no questions for the appellant’s wife. Nor was there any error in the judge’s conclusion that the appellant would likely be unsuccessful in a future application for entry clearance. He was an overstayer and a failed asylum seeker who had been refused leave to remain for the same reason.

21. Ms Tobin submitted that the judge had erred in considering the obstacles to the appellant’s integration to Sri Lanka. Judge Cary had expressed a concern that there was no evidence from a senior figure in the Transitional Government of Tamil Eelam (“TGTE”) but that deficiency had been addressed in the evidence before Judge Rose. Nor had there been any evidence before Judge Cary of the appellant being part of a WhatsApp group of organisers, whereas that evidence was also before Judge Rose. The evidence also showed that the appellant had been attending Heroes Day since 2014. The appellant had travelled to Scotland to attend one protest. There was a question of scale. Judge Cary had found that there was no risk from the appellant’s sur place activity but there was considerable further evidence before Judge Rose and he had failed to engage with that evidence sufficiently or at all. The finding he had reached as to risk was inadequately reasoned and should be set aside. There was in any event a serious question over the appellant’s subjectively held fear of returning to Sri Lanka and that had not been examined at all.

22. In reply, Ms Nolan submitted that the sur place evidence was limited. Dr Yogalingam of the TGTE confirmed the appellant’s attendance at various events but did not show that he had a heightened profile. Nor did the WhatsApp evidence.

23. I indicated at the end of the submissions that I considered both parties to have established errors of law on the part of the judge. Whilst I did not find the respondent’s first three grounds to be made out, I considered the fourth to establish a clear error, in that the judge had failed to consider whether the family could return to Sri Lanka as a whole. And I accepted that the judge had failed to engage with the evidence before concluding that the appellant would not be at risk on return to Sri Lanka. I stated that written reasons would follow.

24. I asked the advocates for submissions on relief. They both submitted that the appeal should be remitted to the FtT de novo. Given the scope of the findings required and the fact that the parties were in agreement as to relief, I indicated that I would make that order.

Analysis

25. There is no merit in the Secretary of State’s first three points. I reach that conclusion for the following reasons.

26. The judge heard the appellant’s father give oral evidence. He noted that the appellant’s father had given evidence which was flatly inconsistent in one important respect with the evidence given by the appellant and his mother. They had stated that the appellant had never been to Sri Lanka, whereas his father suggested that the appellant had lived in Sri Lanka to the point that he came to the UK. The judge resolved that contradiction by concluding that the appellant’s father’s memory was such that it could not be relied upon, and that it was the evidence of the appellant and his mother which the judge preferred.

27. Whilst Ms Nolan is correct to submit that there was no medical evidence before the judge to support his finding that the appellant’s father’s memory was not to be relied upon, the respondent’s submission overlooks the reasons given by the judge for his finding at [28]. He did not simply conjure memory problems from nowhere; he noted that the appellant’s father had been seriously wrong to suggest that the appellant had been in his early thirties when he moved to the UK because he was actually in his early twenties at that point. The appellant’s father was in his seventies at the date of the hearing before the FtT. The judge saw and heard him give evidence. He was perfectly entitled to conclude that the explanation for the inconsistent and frankly incorrect evidence that the appellant’s father gave was that his memory was not to be relied upon. That finding did not require medical evidence; it was a finding which was open to the judge on the other evidence before him.

28. I agree with Ms Tobin that the judge’s finding that it would not be a “long-term solution” for an extended family member to care for the appellant’s son did not require further elucidation. His son was 366 days old at the date of the hearing before the FtT and the evidence before the judge was that the appellant was his primary carer whilst his wife went to work. The appellant was asked to speculate in his evidence about what the arrangements which might be made for his son’s care in the event that he was sent to Sri Lanka. He said that an extended family member would probably take his place in caring for his son. The judge was obviously entitled, in light of the best interests of the child to remain in contact with both parents, to conclude that this was not a viable long-term solution. Nothing further was required, and what the respondent seeks in pursuing this ground is reasons for reasons.

29. The respondent is correct that the judge speculated on the outcome of an application for entry clearance but she is wrong to submit that such speculation was impermissible. As Ms Tobin noted, the appellant was refused leave to remain because he had overstayed by a significant margin. There are parts of the Immigration Rules which mandate the refusal of entry clearance applications made by such persons. The judge evidently had those provisions properly in mind in concluding as he did.

30. Nor was there anything impermissible about the judge’s conclusion in relation to the stability of the appellant’s wife’s employment. There was evidence before him about her employment. She had started on a lower salary and progressed to earning £40,000 per annum by the date of the hearing. The judge was obviously aware that she had limited leave to remain as a Skilled Worker but there was no reason to think that she would be unable to renew that visa, given that her employment remained in place. She had made an in-time application and the judge was entitled to proceed on the basis that all things were probably equal and that she would continue in the employment she had enjoyed for some time.

31. It is not necessary in this context to consider the now extensive jurisprudence on the latitude which is properly to be given to trial judges in the findings that they make and the reasons they provide to support those findings. It is obviously necessary for appellate judges to exercise a degree of restraint and to recognise that the way in which findings are expressed is always surrounded by a penumbra of imprecision. In this case, the findings I have considered immediately above really spoke for themselves. They were grounded in the appellant’s father’s obvious muddle when he gave evidence and in the best interests of a one year old child, for example. It was not incumbent on the judge to do more than he did and to find otherwise would be to act contrary to the principles underscored by the Senior President of Tribunals in his June 2024 Practice Direction entitled Reasons for Decisions.

32. The Secretary of State’s final ground is inarguable, however. The appellant was an overstayer when he made his application for leave to remain but he was unable to satisfy paragraph EX1 of the Immigration Rules because his wife did not hold qualifying status. Under the Rules, therefore, it did not matter whether there were insurmountable obstacles to the continuation of family life in Sri Lanka because the appellant could not meet the Rules for other reasons. That did not entitle the judge to overlook that question when it came to the consideration of proportionality outside the Rules. It is established by long-standing domestic and Strasbourg authority that it is necessary to consider in any such analysis whether there are insurmountable obstacles in the way of a family living in the country of origin of the non-national. I have taken those words from [42] of R (Agyarko) & Anor v SSHD [2017] UKSC 11; [2017] 1 WLR 823, where Lord Reed set out a number of factors which were to be taken into account in assessing proportionality. He had taken those factors from Jeunesse v The Netherlands (2015) 60 EHRR 17, although he stated that what was said in that case was consistent with earlier judgments, a number of which he went on to consider at [43]. At its root, those judgments flow from the principle which was recognised in even older cases, not least of which is Abdulaziz, Cabales and Balkandali v The United Kingdom (1985) 7 EHRR 471; that the duty imposed by Article 8 “cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.”

33. The judge did not consider whether the appellant and his wife and son could live together in Sri Lanka. He was required to consider that question because of the authorities cited above and because the respondent had positively submitted at [27] of her Review that “the family unit can relocate to Sri Lanka”. Although that error was squarely identified within the grounds of appeal to the Upper Tribunal, Ms Bayati offered no response to it in the rule 24 response. I asked Ms Tobin for her submissions on it. She was constrained to accept that the judge should have considered that question. I find that the judge erred in failing to confront that issue any point in his decision.

34. I consider it equally clear that the judge erred in law in considering what risk there was to the appellant on return to Sri Lanka. Judge Cary considered the appellant’s appeal in July 2022 and wrote a detailed decision explaining why he did not consider that the appellant would be at risk, whether on account of his family connections to Tamil separatism or his own sur place activity since arriving in the UK in 2014. Judge Cary concluded, for reasons I need not rehearse here, that it was not reasonably likely that the appellant would be perceived by the Sri Lankan authorities as having a significant role in Tamil separatist activities, that being the test from the country guidance decision in KK & RS (sur place activities: risk) Sri Lanka (CG) [2021] UKUT 130 (IAC).

35. The appellant did not submit before Judge Rose that Judge Cary was wrong in that conclusion; he submitted that matters had moved on. He submitted that he had continued to undertake activities which might be associated with Tamil separatism in the eyes of the Sri Lankan authorities and he submitted that there was evidence in support of his profile which had not been before Judge Cary.

36. As was noted by Ms Bayati in her rule 24 response and by Ms Tobin in her able and concise submissions, one such piece of evidence was a letter from Dr Sockalingam Yogalingam of the TGTE. That and the letter from the Tamil Coordinating Committee UK spoke to the appellant’s participation in events including the Martyr’s Day or Heroes Day. The judge’s engagement with that evidence was insufficient on any view. At [31], he concluded that the additional evidence showed at its highest that that the appellant had been involved in political campaigning in the UK and that it did not “demonstrate that Judge Carey [sic] was wrong in concluding that, notwithstanding the appellant’s participation in political campaigning in the UK, the appellant is unlikely to be of interest to the Sri Lankan authorities”.

37. What the judge was required to do, and what he was expressly invited to do in Ms Bayati’s ASA, was to take Judge Cary’s decision as his starting point and then to consider whether the evidence adduced in this appeal showed that the appellant’s activity had reached the point where he would be at risk from the authorities. It did not suffice, with respect, for him to consider whether Judge Cary was wrong; that was not the correct question in this appeal. The judge’s error is multi-faceted. He not only asked himself the wrong question in this respect; he also failed to give adequate consideration to the evidence in the case. The appellant cannot know what he made of the letter from the TGTE or the letter from the TCC, both of which post-dated Judge Cary’s decision, because the judge did not make any reference to those documents. It follows that the judge’s assessment of the appellant’s risk profile is legally erroneous and that it must be set aside, as I announced at the hearing.

38. The representatives agreed before me that there was nothing in Judge Rose’s decision which could be preserved and that the appeal was to be remitted to the First-tier Tribunal for consideration afresh. As I have already said, I considered them to be correct in that submission and that is the order which I will make.

Notice of Decision

The First-tier Tribunal erred in law in its decision on the appellant’s appeal and that decision is set aside in full. The appeal is remitted to the First-tier Tribunal for consideration afresh by a judge other than Judge Rose.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2026