Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004904
First-tier Tribunal No: HU/64961/2023
LH/07915/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2nd January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

Between

PK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mavrantonis, counsel, instructed by Gaffrey Brown Solicitors LLP
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 16 December 2025

Order Regarding Anonymity

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information that is likely to lead members of the public to identify her, including her name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. By a decision dated 5 May 2025, the First-tier Tribunal dismissed the Appellant’s appeal against the Respondent’s 22 November 2023 decision to refuse her 2 November 2023 human rights claim.
2. Thereafter, the Appellant applied for permission to appeal. By a decision dated 20 October 2025, the First-tier Tribunal granted permission to appeal (purportedly extending time in order to do so – in fact, it appears that the application was made in time). The appeal came before me for an error of law hearing on 16 December 2025.
Background
3. The Appellant is a national and resident of India now aged 30 years. Her husband is a national of India now aged 42 years. He resides in the UK, subject to limited leave to remain. He entered the UK as a child aged 13 and remained here unlawfully until he qualified for leave to remain under the Immigration Rules on the basis of 20 years’ continuous residence. He has resided in the UK for around 29 years now. The Appellant and her husband married in India on 23 June 2022.
4. On 2 November 2023, the Appellant made an Article 8 ECHR human rights claim, in the form of an application for leave to enter the UK in order to join her husband. It was accepted that the immigration status requirements of the Immigration Rules were not met because the Appellant’s husband held limited leave to remain (though all of the other requirements, including the financial requirements, were met at the date of the application). However, the Respondent was invited to grant entry clearance outside the Immigration Rules, essentially on the basis of the Appellant’s husband deeply entrenched ties to the UK.
5. The Respondent refused the application on 22 November 2023, essentially on the basis that the refusal of entry clearance would not result in unjustifiably harsh consequences rendering refusal disproportionate under Article 8 ECHR.
6. The Appellant proceeded to appeal to the First-tier Tribunal. By the time of the hearing, the basis of her claim had developed. She still accepted that she could not meet the requirements of the Immigration Rules because of her husband’s immigration status. However, she now invited the Tribunal to allow the appeal under Article 8 ECHR assessed outside the Immigration Rules based on both her husband deeply entrenched ties to the UK and her own parlous circumstances in India. Her previous marriage had broken down due to her then husband’s cruelty. She was living alone because her family had emigrated to Canada. It was dangerous for her to live in India as a lone woman who had transgressed social mores by getting divorced.
7. The First-tier Tribunal dismissed the Appellant’s appeal on 5 May 2025. The Judge rejected the credibility of the account advanced by the Appellant and her husband, and found that they had exaggerated her parlous circumstances to bolster her claim. The Judge concluded that the refusal of entry clearance would not breach Article 8 ECHR.
8. The Appellant’s applied for permission to appeal, in time, on two grounds, namely that: (a) the Judge failed to take into account material matters, gave inadequate reasons, and/or failed to resolve material conflicts; and (b) the Judge impermissibly took into account that the increased financial requirements of the Immigration Rules were not met and/or caused unfairness by failing to raise that as an issue with the parties at the hearing.
9. On 20 October 2025, the First-tier Tribunal granted of permission to appeal on all grounds.
Hearing
10. Before me, the documentation was contained in a consolidated bundle of 399 pages. Ms Clewley confirmed that the Respondent had not filed a rule 24 response and that she was intending to defend the appeal on all grounds.
11. Mr Mavrantonis applied for the anonymity order on behalf of the Appellant, essentially on the basis that she claims to be in a vulnerable position in India and disclosing her identity could potentially give rise to increased risks to her. Ms Clewley had no objection to this on behalf of the Respondent. I acknowledge the importance of the principle of open justice. However, I grant the application because I consider that disclosing the Appellant’s identity could potentially cause her harm in India.
12. Mr Mavrantonis adopted the grounds of appeal (which he had drafted) and made further oral submissions which may be summarised as follows:
Ground 1
a. In finding at §11 that the Appellant “has not produced corroboratory evidence that her family have also relocated to Canada”, the Judge failed to take into account that there was, in fact, documentary corroboration in the form of the Appellant’s family’s Canadian visas.
b. In finding at §11 that the Appellant “has not produced any background country evidence to show that she would be unsafe in India”, the Judge failed to take into account that there was, in fact, such evidence, in the Respondent’s ‘Country policy and information note: women fearing gender-based violence, India’ (excerpts of which had been cited in the Appellant’s appeal skeleton argument).
c. The Judge failed to make a clear finding on whether the Appellant’s relationship with her ex-husband had broken-down due his cruelty as claimed (in circumstances where the Judge acknowledged that documentary corroboration had been provided in the form of a Indian court order apparently accepting that the Appellant had been treated with the “utmost cruelty”).
d. In rejecting the credibility of the Appellant’s and her husband’s account, the Judge relied on a single purported inconsistency in the Appellant’s husband’s oral evidence; the purported absence of corroboration; and the development in the Appellant’s narrative between her application and her appeal. This was inadequate reasoning in the circumstances, particularly since the corroboration was not in fact absent.
Ground 2
e. Since it was not in dispute that the Appellant met the financial requirements of the Immigration Rules at the date of application, it was impermissible for the Judge to take into account that the Appellant no longer met them at the date of the appeal.
f. The Judge had ‘double-counted’ by giving weight to both the fact that the Appellant no longer met the financial requirements of the Immigration Rules and, under section 117B(3) Nationality, Immigration and Asylum Act 2002 (‘2002 Act’), that the Appellant was not financially independent because she no longer met the financial requirements of the Immigration Rules.
g. In circumstances where the parties were in agreement that the financial requirements of the Immigration Rules were met, fairness required the Judge to raise this issue with the parties and that had not happened (though Mr Mavrantonis confirmed that he did not himself appear below, did not have any evidence from the advocate that did, and did not have a transcript of the First-tier Tribunal hearing – he said that he was acting on instructions).
13. In response, Ms Clewley made oral submissions which may be summarised as follows:
Ground 1
a. The Appellant’s family’s visas did not show that they had permanently emigrated to Canada, and therefore the Judge was correct to find that the Appellant had not produced documentary corroboration that they had done so.
b. The Judge had not taken into account the Respondent’s ‘Country policy and information note: women fearing gender-based violence, India’. However, this was not an error of law because the evidence did not demonstrate that the Appellant personally would be at risk; alternatively, it was not a material for that reason.
c. It was tolerably clear that the Judge had accepted at §11 that the Appellant’s relationship with her ex-husband had broken-down due his cruelty as claimed; indeed, this did not appear to be in dispute.
d. The Judge’s three reasons for rejecting the credibility of the Appellant’s and her husband’s account were adequate.
Ground 2
e. It was accepted that the Appellant did not meet the requirements of the Immigration Rules at the date of the application, because her husband did not meet the immigration status requirements. Therefore, in assessing Article 8 ECHR outside the Immigration Rules, it was incumbent upon the Judge to consider the position as at the date of the hearing. They were therefore entitled to take into account the increased financial threshold.
f. The Judge had not ‘double-counted’ – they had simply recorded that the Appellant no longer met the financial requirements of the Immigration Rules (at §9) and then given that weight under section 117B(3) 2002 Act (at §20).
g. The Judge recorded at §9 that the Appellant had given oral evidence that his income remained at around £19,000-£20,000 – this showed that this issue had been raised with him, which was sufficient.
14. Mr Mavrantonis made concise further submissions in reply. In particular, in respect of Ground 2, he noted that there was no indication in the First-tier Tribunal’s decision that the legal issue of the impact of no longer meeting the financial requirements of the Immigration Rules had been raised with the Appellant.
15. In terms of disposal, if I were to find a material error of law in respect of either ground, the representatives both agreed that the decision should be set aside in its entirety and the appeal should be remitted to the First-tier Tribunal for a de novo hearing.
16. At the conclusion of the hearing, I reserved my decision.
Decision and reasons
Ground 1
17. I remind myself that an appeal court should not interfere with a trial judge’s conclusions on primary facts unless it is satisfied that they were plainly wrong (Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, per Lewison LJ at §2). Nevertheless, on careful consideration, I have come to the conclusion that the First-tier Tribunal erred in law in rejecting the credibility of the Appellant’s and her husband’s claimed account.
18. One of only three reasons the Judge provided for rejecting the credibility of the Appellant’s and her husband’s claimed account was the absence of documentary corroboration (§13), including as to the Appellant’s family moving to Canada and country conditions in India (§11). In fact, the Appellant had adduced documentary corroboration of her family moving to Canada (in the form of their visas) and country conditions in India (in the form of the Respondent’s ‘Country policy and information note: women fearing gender-based violence, India’). If the Judge wished to reject this evidence for the reasons suggested by Ms Clewley, then it was incumbent upon them to provide those reasons. They did not do so. Rather, they simply failed to take this material evidence into account – indeed, they relied on its purported absence. That was an error of law.
19. Further, I accept that the Judge failed to make a clear finding on whether the Appellant’s relationship with her ex-husband broke down as a result of his cruelty. The Appellant’s divorce was an important part of her case, because it is why she claimed to be perceived to have transgressed social mores in India and that it is dangerous for her to live there as a lone woman. It is certainly not clear, as Ms Clewley suggests, that the fact and circumstances of the Appellant’s divorce were not in dispute. This was therefore a failure by the Judge to resolve a conflict on a material matter, which was an error of law.
20. Both individually and cumulatively, I am satisfied that these two errors of law were material. It cannot be said that any rational Tribunal would have come to the same conclusion if the errors had not been made (see SSHD v AJ (Angola) [2014] EWCA Civ 1636 at §49 per Sales LJ, as he then was).
Ground 2
21. I do not accept the Appellant’s submissions made under Ground 2 for the following reasons.
22. First, since this was an outside the Immigration Rules Article 8 ECHR claim, it was incumbent upon the Judge to assess the circumstances of the case as at the date of the hearing. Those circumstances included the increased financial requirements, as an important element of the public interest considerations. Mr Mavrantonis could cite no authority for the proposition that it was impermissible for the Judge to take the increased financial requirements into account when assessing an outside the Immigration Rules Article 8 ECHR claim.
23. Second, I do not accept that the Judge ‘double-counted’ the Appellant’s failure to meet the increased financial requirements – rather, I accept Ms Clewley’s submission that they first recorded it (at §9) and then counted it, once, under the rubric of section 117B(3) 2002 Act (at §20).
24. Third, I accept Ms Clewley’s submission that it appears that the issue of the Appellant’s current income came up during his oral evidence – i.e. he was questioned about his current income. In such circumstances, and where there is no evidence before me to make good the assertion that this issue was not raised at the hearing, I am not prepared to infer that it was not.
25. Ground 2 does not disclose a material error of law.
Conclusion
26. Both representatives agreed that, if I were to find a material error of law in the Judge’s rejection of the credibility of the Appellant’s and her husband’s account, then the entirety of the decision would need to be set aside with no findings preserved, because that conclusion had materially impacted upon all other elements of the decision. I agree, and I therefore set aside the decision of the First-tier Tribunal in its entirety.
27. The representatives also agreed that, in such circumstances, the appropriate course for remaking would be for the appeal to be remitted to the First-tier Tribunal. Having considered the Practice Direction and Practice Statement, and also having regard to the guidance in AEB v SSHD [2022] EWCA Civ 1512, [2023] 4 WLR 12, I consider that this is a case in which the nature and extent of the necessary fact-finding means it is appropriate to remit the appeal to the First-tier Tribunal for a de novo hearing.
Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and is set aside in its entirety.
The appeal is remitted to the First-tier Tribunal for a de novo hearing before a differently constituted Tribunal.

B. Hoshi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 December 2025