Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004580

First-tier Tribunal No: HU/59605/2023
LH/06536/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th February 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

KULWANT SINGH
(ANONYMITY ORDER MADE NOT made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z. Nasim, Counsel instructed on behalf of the appellant
For the Respondent: Mr M. Diwnycz, Senior Presenting Officer

Heard at (IAC) on 17 December 2025

DECISION AND REASONS
1. The appellant appeals, with permission, against the determination of the First-tier Tribunal (Judge Moxon) promulgated on 20 January 2025. By its decision, the Tribunal dismissed the appellant’s appeal against the Secretary of State’s decision dated 25 July 2023 to refuse his human rights claim.
2. The FtTJ not did make an anonymity order, and no grounds were submitted during the hearing for such an order to be made. Anonymity is not granted because the facts of the appeal do not demonstrate that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR.
The background:
3. The factual background can be summarised as follows. The appellant is a national of India. He was granted a visa to enter the United Kingdom as a visitor which was described as a “multi-visit visa” which provides for entry and return within the period from 8 November 2012 and 8 May 2015. The appellant entered the United Kingdom as a visitor on 22 November 2012 but remained in the United Kingdom thereafter.
4. There is no dispute that the appellant did not seek to regularise his immigration status until he made an application for leave to remain as the partner of a British citizen, (“the sponsor”) in an application made to the respondent on 28 October 2022. The background to the application was that he had met the sponsor in or about June 2020 at the Gurdwara, they later began a relationship. The appellant refers in the application form to living in London and visiting the sponsor at her address at weekends and were religiously married at a ceremony which took place on 30 July 2022. They began to live with each other from that date ( see application form;p207 Cef). The application made on 28 October 2022 was accompanied by a letter from his legal representatives dated 2 November 2022.
5. The respondent refused the claim in a decision taken on 25th of July 2023. The respondent assessed the application under the requirements of Appendix FM and based on his application for leave to remain as an unmarried partner. He did not fall for refusal on suitability grounds, but he could not meet the eligibility relationship requirement because he could not meet the definition of a partner set out under GEN 1.2 based on the time they had stated that they had resided together and that the claim made that they had first lived together in July 2022 was significantly less than the two years prior to the date of the application. He was not a fiancé and therefore he had not been granted entry clearance in that respect. Further, he could not meet the eligibility requirement in light of his immigration status given that he had entered the United Kingdom as a visitor and had remained in United Kingdom at the conclusion of the visa in 2015 and had been granted no leave thereafter. His residence was therefore in breach of immigration law. Whilst it was accepted that the appellant and the sponsor had a genuine and subsisting relationship the respondent concluded that EX1 did not apply as it had not been established that there were insurmountable obstacles to family life being established outside of the United Kingdom in accordance with EX2 which means “very significant difficulties” which would be faced by him or his partner in continuing family life together outside the UK in India and which could not be overcome or would entail very serious hardship for him and his partner. The decision letter also addressed the issue of Appendix Private Life and set out the reasons given as to why the appellant could not meet Appendix PL.5.
6. The respondent addressed the issue of whether there were “exceptional circumstances” in detail in the decision letter. This included the claimed private and family life which were established with the full knowledge that he did not have permission to remain permanently in the UK and when his immigration status was precarious and when the vast majority of his time in the UK was spent with no leave at all and that he should have prepared himself for the possibility of return to India. It was noted that the relationship between the appellant and the sponsor began in June 2020 at a time when he did not have valid leave to remain in the UK and there was no expectation that they could continue family life in the United Kingdom and noting that a desire or preference within the UK does not amount to an “exceptional circumstance” and that the ECHR does not oblige the UK to accept the choice of residence. Other matters were addressed including the possibility to gain employment to maintain himself and his partner in India, and that it was a country had previously lived in. It considered the medical health issues of the sponsor, but that the sponsor had three daughters who could assist with her care needs and that medical treatment was available to her and as a British citizen she could avail herself of the full services available under the NHS and the local authority should she decide not to relocate. In the alternative, she would be able to explore the availability of treatment and care options in India. The appellant’s medical health was also addressed, both under article 3 and article 8 and reasons were given that the factual claim could not engage article 3 in light of the high threshold necessary and also in the light of the objective country material detailing the availability of treatment in India (Country of Information Note India: Medical and Healthcare Provision, dated April 2023). As regards the claim that he had worked in the community, it was considered he could do the same on return to India. The respondent concluded that there were no such “exceptional circumstances” that would warrant a grant of leave to remain outside Immigration Rules. The application was refused.
7. The appellant appealed that decision which brought the matter before the FtTJ. At the hearing, the FtTJ heard evidence from the appellant and his partner but in his decision which was promulgated on 20 January 2025 he dismissed the appeal having concluded that it was reasonable and proportionate for the appellant to leave the United Kingdom. As part of that assessment, he found on the evidence that there were no insurmountable obstacles to family life continuing outside the United Kingdom in his assessment. The decision will be considered in detail when assessing the grounds of challenge.
The appeal before the Upper Tribunal:
8. The appellant applied for permission to appeal, based on 2 grounds which challenged the decision on the basis of the assessment of Article 8 outside of the Rules. Permission to appeal was granted on 30 September 2025 by FtTJ Dainty.
9. The hearing took place before the Upper Tribunal. The appellant was represented by Mr Nasim of Counsel and Mr Diwnycz, Senior Presenting Officer. Neither advocate had appeared before the First-Tier Tribunal. The hearing proceeded as a remote hearing as requested and Mr Nasim appeared by video link with Mr Diwnycz present at the hearing centre. The appellant and his wife were also present. Mr Nasim informed the tribunal that he had previously spoken to the appellant concerning the appeal and that after the hearing he would also take steps to discuss the hearing with the appellant. I am grateful for that indication and the help and assistance given by Mr Nasim. I am also satisfied that at the hearing there were no technical difficulties and both parties were able to give their submissions to the tribunal.
10. Mr Nasim relied upon the grounds of challenge and supplemented them with his oral submissions. Dealing with a preliminary issue, when asked about Part B of the bundle and the Rule 15(2A) application, he confirmed that the Rule 15 (2A) application evidence was not relevant to the issue of error of law acknowledging that the documentation postdated the hearing before the FtTJ and as such Mr Nasim confirmed that such evidence would only be relevant to any remaking of the decision in the event of an error of law being found.
11. The respondent had filed a reply to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 dated 9 October 2025. The respondent’s position is that she opposes the appeal and submits that the FtTJ directed himself appropriately. It is submitted that the appellant’s grounds amount to nothing more than an attempt to re-argue the appeal. As the permission grant states the issues raised were considered within the context of article 8 in the rules. The respondent submitted that there was no requirement for the FtTJ to repeat the findings already made under the Regulations in the context of the consideration outside of the rules. It is further submitted that at paragraph 8 (a) of the grounds the author overlooks the fact that the FtTJ rejected the appellant’s claim that the houses in his wife’s name and therefore rejected the fact that he would have no house to return to.
12. I am grateful to the advocates for the helpful submissions made. The submissions are contained in the record of proceedings, and I will not rehearse them here. I will refer to them as relevant in the analysis of the issues raised and by reference to the grounds of challenge as advanced.
Analysis and discussion:
13. Before undertaking an assessment of the grounds, I take into account the following matters. First, I must read the decision of the FtTJ sensibly and holistically and exercise appropriate restraint before interfering with it. Secondly, a brief decision does not mean necessarily that it is erroneous in law. Thirdly, what is required in a decision will be case specific and will depend on the nature of the issue (s) in play.
14. The following principles that apply when considering whether there is an error of law can be summarised from the following : KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49 , AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464.
(1) The First-tier Tribunal is an expert tribunal, and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently.
(2) The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(3) The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.
(4) Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.
(5) The UT is an appellate court, and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.
(6) Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.
(7) Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
(8) Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.
15. I turn to Ground 1. Mr Nasim relied upon the written grounds which are as follows:
Ground 1 – Article 8 outside the Rules
The FTT Judge has materially erred in law by failing to consider the Appellant’s case outside the Immigration Rules under article 8 properly.
In R (on the application of MM (Lebanon) & Others v SSHD [2017] UKSC 10, at para 59:
Failure to qualify under the rules is not conclusive; rather it is (in Lord Bingham’s words) The point at which to begin, not end, consideration of the claim under article 8. The terms of the rules are relevant to that consideration, but they are not determinative.” Thus, whatever the defects there may be in the initial decision, it is the duty of the tribunal to ensure that the ultimate disposal of the application is consistent with the Convention.”
At para 66:
“A third misconception is the implication that article 8 considerations could be fitted into a rigid template provided by the rules, so as in effect to exclude consideration by the tribunal of special cases outside the rules. As is now common ground, this would be a negation of the evaluative exercise required in assessing the proportionality of a measure under article 8 of the Convention which excludes any “hard-edged or bright-line rule to be applied to the generality of cases” (EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159, para 12, per Lord Bingham).”
At para 67, the Supreme Court recorded that the Secretary of State’s Counsel accepted that ‘the rules are only the starting point for consideration under the Convention.’ Further, ‘…the rules themselves have always made clear that they left open the possibility of separate consideration under article 8.’
The FTT Judge has adopted an erroneous approach by imposing a requirement to show ‘unjustifiably harsh result’ before considering whether the decision is proportionate. The FTT Judge has erred in law in failing to consider the Appellant’s case under article 8 properly outside the Immigration Rules.
16. Mr Nasim submitted that the FtTJ erred in law by failing to address the issues in the decision letter and that the appellant’s case was that he could meet the Immigration Rules under Appendix FM as he fell within the definition of a “partner” and that he also satisfied the requirements of EX1 to show that there were insurmountable obstacles of family life being established in India. In the alternative, he relied upon article 8 outside of the rules. He therefore submitted that the FtTJ failed to address whether the appellant was a “partner” and therefore satisfied the Rules.
17. When making that submission Mr Nasim acknowledged that this was not a ground raised in the grounds of challenge when seeking permission to appeal. There are a number of difficulties with the submission made. Firstly, as acknowledged by Mr Nasim the issue had not been raised in the written grounds of challenge and were not the basis upon which permission to appeal was sought or granted. The scope of the appeal is subject to procedural constraints. The application stands as notice of appeal subject to any direction of the Upper Tribunal. There has been no application at any stage of the proceedings for the grounds to be amended, either since permission had been granted by way of any notice or otherwise or at the hearing itself. No application was made. There is a need for procedural rigour as set out In R (Talpada)( v The Secretary of State for the Home Department[2018] EWCA Civ 84 Singh LJ said as follows (at [68-69]):
"... it is important that the grounds of appeal should be clearly and succinctly set out... Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise, there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest...."
18. Whilst that was a judicial review case, the Upper Tribunal has adopted the same approach (see Rai and DAM (grounds of appeal – limited grounds – permission) [2025] UKUT 150 stating “The Grounds of Appeal will not ordinarily be permitted to evolve during the course of the appeal. The Upper Tribunal is likely to take robust decisions and not permit grounds to be advanced if they have not been properly identified and pleaded or where permission has not been granted to raise them.” Rai at [15].
19. Furthermore, Mr Nasim does not seek to argue that the ground is implicit in any of the written grounds and the way in which it was advanced was this was a freestanding error of law. I also observe that the decision refers to the appeal as argued on the issue of article 8 outside of the rules ( see paragraph 8) and the decision assessed that issue. This provides the reason why the written grounds which were submitted in the application for permission to appeal plainly only sought to challenge the decision on the basis of the assessment of article 8 outside of the rules. Mr Nasim properly acknowledged that he sought to develop the grounds beyond which permission has been granted although no formal application was made as set out above. In accordance with the need for procedural rigour as also identified above I shall only consider the issue raised in the grounds alongside the oral submissions made in respect of them upon which permission has been granted.
20. I therefore turn to the grounds as raised. Mr Nasim submitted that there were difficulties in the decision and in particular the structure of the decision. He submitted that the FtTJ did not set out the evidence in this decision and that he had begun his findings at paragraph 21 and made no proper factual assessment on the issue of “insurmountable obstacles” and that there was no reference in the decision to the evidence given.
21. Dealing with those general points, there is no obligation on a FtTJ to recite all evidence given at a hearing. I further observe that the parties were aware of the evidence that had been presented before the FtTJ, both orally and in documentary form and the FtTJ expressly set out the evidence that he had considered and assessed in this appeal which included the 427 page electronic bundle alongside the supplementary bundle alongside the oral evidence given by the appellant and the sponsor ( see paragraphs 6 and 7 of the decision). In circumstances where the grounds make no challenge to the findings of fact made on the evidence by the FtTJ, it is not explained why the FtTJ erred in law in this regard.
22. I would accept that the FtTJ’s decision could have been structured more clearly but that is more of a criticism of form rather than substance and what is important is when the decision is read as a whole whether the FtTJ addressed the legal issues in the light of the assessment and analysis of the evidence and reached a decision on proportionality which was open to him on that evidence. There is a legal duty to give a brief explanation of the conclusions of the central issue on which an appeal is determined and what is said in Shizad (sufficiency of reasons; set aside) [2013] UKUT 85 (IAC) that “reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the FtTJ.” When that is applied to this particular appeal, it has not been demonstrated that the FtTJ failed to apply the correct legal test or facts when assessing and reaching his decision in article 8 outside of the rules. I give my reasons as follows.
23. When the decision is read as a whole, the FtTJ made clear evidential findings on the issues raised in this appeal. He proceeded on his acceptance that the appellant had established a family life in the UK with the sponsor ( see paragraphs 15 in the findings of fact and also at paragraph 24). The FtTJ then went on to make findings of fact on the issues which were raised as to whether that family life as established could continue in India. In other words, the issue of insurmountable obstacles. Contrary to the submissions made, the FtTJ began his findings of fact on the issues from paragraph 9 of his decision. As to the appellant’s claim that family life could not be established outside the UK, the FtTJ set out the circumstances which he found would be available to the parties in India (see paragraph 11) which should be read alongside the assessment which relates solely to the appellant at paragraph 22. There the FtTJ found that the appellant would be able to reintegrate to India having spent most of his life there, he had retained his language and cultural tries and referencing the earlier finding made at paragraph 11 that he had access to accommodation and that he had the prospect of support from his adult daughter in the UK. The FtTJ also found that he would be able to obtain employment (see paragraph 10 and paragraph 22). The FtTJ also addressed the issue raised on behalf of the appellant that he could not leave the UK due to his medical health and was thus an “insurmountable obstacle” to family life. This was addressed by the FtTJ at paragraph 12 of the 13 of his decision and by reference to the evidence. He made a finding of fact that contrary to the evidence given by the appellant, he had provided no documentary evidence that there was a lack of medication available in India and therefore the FtTJ’s assessment was that he was satisfied that the appellant’s medical condition could be treated adequately in India thereby finding that it was not an “insurmountable obstacle” as relied upon.
24. The FtTJ also addressed the issues raised concerning the sponsor’s ill health as an “insurmountable obstacle” between paragraphs 16 and 17. He addressed her medical conditions based upon the evidence but in his analysis at paragraph 17 concluded that there would be medical treatment available in India and therefore having taken into account the evidence concluded there was no insurmountable obstacle to family life in India based on that factor.
25. He assessed further factors relied upon such as the sponsor’s circumstances that she had been born and had always lived in the United Kingdom and had not otherwise been outside of the UK ( see paragraph 15) but made a finding of fact that both of her parents were from India and that she retained both cultural and language ties; she spoke Punjabi and English (see paragraphs 15 and in his analysis at paragraph 22).
26. The FtTJ addressed the factor relied upon that the appellant had a fear of flying as an “insurmountable obstacle” or an “ exceptional circumstance” (see paragraph 15), but he found at paragraph 19 that this had not been evidenced, nor had any details been provided of any efforts made to overcome such a fear. The FtTJ addressed the sponsor’s evidence that she would not go to India (see paragraph 20). However the FtTJ made a finding of fact that he did not accept that to be a true reflection of her feelings in light of the closeness of the relationship but reasoned that in any event it did not preclude her visiting him or in the alternative the appellant could apply for entry clearance as a partner upon which would be considered on its merits (also see paragraph 20).
27. As to the sponsor remaining in the UK without the appellant, the FtTJ also addressed this and accepted that his relocation to India would have a detrimental effect upon her mental health (paragraph 16) but that she would have the support and assistance from her three adult children in the UK (see paragraphs 16 and 18). I observed that in the submissions made by Mr Nasim ( in relation to ground 2) he sought to argue that the FtTJ made an error in that finding that the appellant’s daughters could care for the appellant. He acknowledged that this had not been raised in the written grounds of appeal and also that there had been no challenge to the findings of fact made. His submission was that her daughters were not able to care for their mother as they have their own families.
28. However, that finding needs to be read in context. The FtTJ was not stating that the three adult daughters could care for their mother full-time but that he identified that the sponsor did have three adult daughters all of whom were present in the United Kingdom and who had provided support for her. This was consistent with the evidence in the NHS letter but also on the factual matrix which referred to the appellant having been living alone before the parties began their cohabitation in July 2022. Many of her medical conditions are described as long-standing and it was plainly open to the FtTJ against that background to make a finding that she would have the help and support of other family members alongside that she received from the health services in the UK and as set out in the decision letter.
29. Having made those findings of fact, the FtTJ concluded that there were no insurmountable obstacles to family life being established outside the UK (see paragraph 21). As the same facts were relied upon as establishing whether there were “exceptional circumstances “or as the FtTJ set out whether the refusal of leave would result in “unjustifiably harsh consequences,” he was entitled to reach the conclusion that he did at paragraph 21. The remainder of the decision also contains his assessment of article 8 outside of the rules and did so within the correct legal framework by setting out the well-established five stage test in Razgar and he set out again his acceptance that the appellant had established a private and family life in the UK (see paragraph 24) and plainly turned to the issue of proportionality reiterating that “I have in mind” the section 117B public interest considerations (see paragraph 25). I accept the submission made by the respondent that the FtTJ had made the findings of fact on the relevant issues relating to the public interest within his findings of fact and it was not necessary to recite them all again.
30. Section 117A NIAA 2002 applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life and as a result would be unlawful under section 6 of the Human Rights Act 1998 (‘HRA 1998’). In considering ‘the public interest question’ a court or tribunal must have regard to the considerations listed in section 117B.
31. The FtTJ’s assessment plainly took account that ‘the maintenance of immigration control is in the public interest’ (section 117B(1)). He also identified relevant factors for this appeal which included (i) the ability to speak English (section 117B(2)); (ii) to be financially independent (section 117B(3)); (iii) that little weight be placed on a private life or a relationship formed with a qualifying partner at a time when the person is in the United Kingdom unlawfully (section 117B(4)).
32. When applying those relevant considerations, the FtTJ found that the appellant had a poor immigration history having entered the UK with leave as a visitor overstaying for almost 10 years before seeking to regularise his immigration status. The FtTJ did not seek to rely solely on the long period of overstaying but also assessed the reasons that the appellant had given which he recorded at paragraph 9 but which the FtTJ had rejected with his reasons within that paragraph. The FtTJ was entitled to take into account the finding made at paragraph 14 that both parties knew of the appellant’s immigration status from the outset of the relationship. Those factors were also addressed at paragraph 26 of his analysis and that the appellant’s time in the UK had been precarious at best and therefore he gave limited weight to that but also that both the appellant and the sponsor knew of his lack of status and appreciated that, “they may have to continue their relationship from afar or in a country other than the United Kingdom” and the FtTJ directed himself correctly to the Supreme Court’s decision in R(Agyarko) v SSHD [2017] UKSC 11.
33. Whilst Mr Nasim sought to argue that the FtTJ erred in law in reaching the assessment that he was not financially independent, he accepted that the grounds of challenge to the Upper Tribunal did seek to challenge any of the findings of fact that had been made by the FtTJ. However, it was not suggested that the appellant had utilised private medical treatment and in any event, the ability to be financially independent is a neutral factor ( see Ruppiah v SSHD [2016] 1WLR 4203.
34. The FtTJ’s assessment of the evidence was that there were no insurmountable obstacles to family life being established outside the UK and that in the event of a separation, the parties could maintain family life for the reasons set out at paragraphs 20 and 27, and in the alternative the appellant could apply for entry clearance as a partner from outside the United Kingdom. The FtTJ set out his omnibus conclusions at paragraph 28 in the following terms, “having considered all the factors in this case, including the matters outlined above, I am satisfied that the interference of any private and family life is proportionate to the legitimate public end sought to be achieved”. The FtTJ therefore drew together all the factors identified by the parties including those weighty issues relating to the public interest as identified in paragraph 26 and the limited weight to both family and private life, the FtTJ made a decision that was open to him on the evidence when assessing article 8 outside of the rules.
35. As I observed earlier the structure the decision could have been clearer but when the decision is read as a whole and in the context of the issues raised, the FtTJ properly assessed the legal issues that had arisen in the context of the evidence; he made clear findings of fact and reached a decision on proportionality that was open to him. It has not been demonstrated that any perceived problems of structure have resulted in an erroneous decision when the substance of the decision is properly considered and read. Thus, it has not been demonstrated that the FtTJ failed to consider the appellant’s case under article 8 outside of the rules as paragraph 6 of the written grounds assert.
36. Turning to ground 2, the written grounds of challenge are as follows:
37. Ground 2 – Positive Findings and Article 8 assessment
2. The FTT Judge has made the following positive findings:
(a) The Appellant and his partner are in a genuine and subsisting relationship.
3. Having taken into account the above findings, the FTT Judge has failed to take into account the extent to which family life would be ruptured and in particular, the following:
(a)The Appellant is a heart patient and has recent had surgery. In his condition and at this stage of his life he cannot return back to India where he has nothing left. His house was in the name of his ex-wife and because he is in this country he cannot fight a case against her as she has lived there, and it is in her sole name. The Appellant has nowhere to go. Although he has a son in India, he is not willing to take any responsibility for his father after he remarried and decided to remain in the UK.
(b) The Appellant was born in the UK and has all her family here. She has decided to reside in the UK. She should not be compelled to go and live in a foreign country in order to continue her family life with her partner. The Appellant and his partner have been residing together and established a family life in the UK.
(c) The appellant and his wife both have medical conditions that they are dealing with the support of each other. Separating them will have a detrimental effect on both their health’s. The appellants wife is suffering from anxiety and depression and separating her husband that she enjoys family life will affect her health.
(d) The appellants wife is living with the Appellant. She does have three daughters in the UK, but they cannot come and live with her as they have their own families. The daughters are there for support but full-time support that is being given to her by the Appellant who is living with her.
(e) The appellant should have the opportunity to be in the UK with his wife where they have their house and family around them. . The couple have no home India or any means of support there, and they are likely to face exceptional hardship.
(f) The FTT judge states at paragraph 19 that the Appellants wife can travel to India without a flight. The appellants wife has a fear of travelling and although her parents are from India she has never travelled to India because of this fear. It is unfair to expect the Appellants wife to travel to India knowing she has a fear of flying and embarking on a journey to India taking into consideration how many countries she would need to go through and how long it will take. She is vulnerable old lady with medical conditions and expecting her to travel in this way is not reasonable.
(g) Further, the Appellant has been resident in the UK and he himself has developed exceptionally strong ties in the UK. He is studying English classes. He has made his life here and has been in a relationship with his wife. Given their circumstances, it was submitted that requiring the Appellant to upheave with his partner to start their life afresh overseas would be wholly unreasonable and, therefore, constitute an insurmountable obstacle.
4. The conclusion reached by the FTT Judge is not one which was open to him considering the positive findings he has made in respect of family life with his partner.
38. Mr Nasim submitted that he relied upon the written grounds in relation to ground 2 as set out above. He submitted that the FtTJ failed to take into account all the important factors raised by the appellant and in particular that the sponsor had never visited India or indeed had been outside of the UK both of which were not considered by the FtTJ.
39. The point relied upon by the respondent is that the grounds in this respect are no more than an attempt to re-argue the case and that the FtTJ addressed those points in his decision.
40. Having considered the submissions made in light of the decision, and also by reference to the matters referenced in relation to ground 1, it has not been established that the FtTJ erred in law on the basis submitted in ground 2.
41. As regards paragraph 7 (a) of Ground 2, there is no dispute that the FtTJ accepted that the appellant and his partner were in a genuine and subsisting relationship. That is reflected in his assessment of family life being established in the UK between the appellant and the sponsor. However, I am satisfied that the FtTJ did take into account those matters which are set out in the grounds at paragraph 8. In this context 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. Maintaining the distinction between errors of law and disagreements of fact is essential; it reflects the jurisdictional delimitation between the first-instance role of the FTT and the appellate role of the UT and reflects the institutional competence of the FTT as the primary fact-finding tribunal. The distinction, however, is often blurred. As Warby LJ put it in AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948; [2021] Imm AR 1499 at [32]:
“Commonly, the suggestion on appeal is that the FTT has misdirected itself in law. But it is not an error of law to make a finding of fact which the appellate tribunal might not make, or to draw an inference or reach a conclusion with which the UT disagrees. The temptation to dress up or re-package disagreement as a finding that there has been an error of law must be resisted.” As Warby LJ recalled the judgment of Floyd LJ in UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [19]:
“… although 'error of law' is widely defined, it is not the case that the UT is entitled to remake the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. Thus, the reasons given for considering there to be an error of law really matter.”
42. The matters set out at paragraph 8 amount to no more than reciting factual issues which the appellant relied upon during his appeal. That recitation does not demonstrate any error of law, but in reality amounts to seeking to reargue the case. By way of example, paragraph 8 (a) refers to appellant’s medical condition and that he is a heart patient who had recent surgery and that “ at this stage of his life he cannot return back to India where he has nothing left” with reference being made to the house being in the name of his ex-wife. This is also referred to at sub-paragraph ( e) . The grounds fail to make any reference to the findings of fact made by the FtTJ and in particular those at paragraphs 12 to 13 which related to his medical condition. The FtTJ accepted that the appellant had a heart attack in 2017 and had a stent inserted and also that he had further heart surgery in September 2024 and had taken various types of medication. That assessment is consistent with the written evidence (page 153 and letter 26/9/2017 and the letter page 190 from Dr Kurman), the finding of fact made in this context was that the appellant had not provided any documentary evidence that there would be a lack of medication available in India and expressly rejected his claim relying on the material provided by the respondent as set out in that paragraph by reference to the relevant CPIN. The second part of paragraph 8 (a) was also taken into account of and assessed by the FtTJ at paragraph 11, by reference to previous employment in India but also in the UK, paragraph 11 as concerns his circumstances in India where the FtTJ rejected his claim that he would have nowhere to live in India. In addition, the FtTJ addressed circumstances at paragraph 22, and that he retained his language and cultural ties to India, he spent most of his life in that country, that there are no reasons why he could not obtain work, that he had access to a house and could obtain the support from his adult daughter in the UK.
43. The factual issues set out at paragraph 8(b) and (f) were expressly addressed by the FtTJ at paragraph 15 and whilst he accepted that she was born and had always lived in the United Kingdom, he found as a fact that she retained links both cultural and linguistic to India, finding that her parents were from India and that she spoke both English and Punjabi and that was factored into his assessment also at paragraph 22. The grounds at subparagraph (b) misstate the law- it is not a matter of compelling the sponsor to live outside of the United Kingdom but whether there were insurmountable obstacles to family life being established outside of the United Kingdom. The FtTJ directed himself to the decision of R (Agyarko & Anor) v SSHD, where Lord Reed traced the history of paragraph EX1. At [42], he referred to the decision of the Grand Chamber in Jeunesse v the Netherlands (2015) 60 EHRR 17 and whether there were "insurmountable obstacles" in the way of the family living in the country of origin of the non-national concerned". At [43], Lord Reed stated that the ECtHR intended the words 'insurmountable obstacles' to be understood in a "practical and realistic sense, rather than as referring solely to obstacles which make it literally impossible for the family to live together in the country of origin of the non-national concerned." The FtTJ applied that test but found that it was not met on the facts of the appeal for the reasons he set out. The issue of fear of flying ( e ) was addressed at paragraphs 15 and 19.
44. In his assessment of the evidence the FtTJ set out his findings of fact and determination of the factual issues relevant to article 8 outside of the Rules. As with any decision of an FtTJ those findings of fact should be read together. Those findings were concise and succinct, and they adequately dealt with the relevant factual issues between the parties and are supported by the evidence the FtTJ had read and heard. As already stated, is of relevance to this appeal that the grounds submitted do not seek to challenge the factual findings made by the FtTJ.
45. In conclusion and when properly analysed, the grounds of challenge are not made out and amount to no more than a disagreement with the decision. I remind myself that judges of the specialist tribunal are best placed to make factual findings and that appellate courts should not rush to find misdirection’s simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. The FtTJ was required to consider the evidence that was before the First-tier Tribunal as a whole, he addressed the issues, and he plainly did so by giving adequate reasons for his decision concerning article 8 outside of the Rules when reaching his conclusion at paragraph 28 as to proportionality.
46. Consequently, for those reasons the appellant has not established that the FtTJ’s decision involved the making of an error on a point of law that was material and therefore the decision shall stand.
47. I note that Mr Nasim referred to further evidence and/or change in circumstances, and whilst they do not demonstrate any material error of law in the decision of the FtTJ, it is open to the appellant to make a fresh application.
Notice of Decision:
The decision of the First-tier Tribunal did not involve the making of a material error on a point of law ; the decision of the FtTJ shall stand.

30 December 2025

Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds