Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005128

First-tier Tribunal No: HU/63544/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

Secretary of State for the Home Department
Appellant
and

SOUFIANE KHAIROUN KHORRIZI
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms. E Blackburn, Senior Home Office Presenting Officer
For the Respondent: Mr. Holt, counsel, instructed by Intime solicitors

Heard at Field House by CVP on 13 February 2026

DECISION AND REASONS
Introduction
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Hawden-Beal (‘the judge’) who allowed the appeal brought by Soufiane Khairoun Khorrizi. The Secretary of State is the appellant in this appeal and was the respondent before the First-tier Tribunal, where Mr. Khorrizi was the appellant. In this decision I refer to the parties in the same procedural position as they were before the First-tier Tribunal (‘FtT’) to avoid confusion. The Secretary of State was granted permission to appeal the decision of the judge who allowed the appellant’s appeal by a determination dated 19 September 2025, following a hearing which took place on 10 September 2025. That appeal challenged the respondent’s decision to refuse the appellant’s application for leave to remain in the UK dated 10 October 2024 made on the basis of his private life and his family life with his partner and child. The judge allowed the appellant’s appeal on the ground that refusal of his application amounted to a disproportionate interference in his and his family’s rights by reference to Immigration Rule GEN 3.2 and article 8 of the European Convention on Human rights (‘ECHR’).
2. First-tier Tribunal Judge Haria granted permission to appeal on 3 November 2025 on all grounds.
3. The hearing took place before me by CVP on 13 February 2026. At the start of the hearing I ensured that all parties could hear and see each other sufficiently for the hearing to proceed. I then heard submissions from Ms. Blackburn for the Home Office and from Mr. Holt for Mr. Khorrizi. I received a composite bundle running to 323 pages in advance of the hearing. At the outset of the hearing Ms. Blackburn stated she had not seen the rule 24 response submitted on behalf of Mr. Khorrizi. I allowed time for that document to be sent to her and for her to read it. Having done so, she was content to proceed.
Decision of the First-tier Tribunal
4. The judge began her judgment (at [1]-[6]) by setting out the appellant’s application and the Respondent’s decision of 10 October 2024. At [2] the Judge stated that the respondent refused the appellant’s application because he did not meet the immigration status requirements because he entered the UK as a visitor in December 2023 and overstayed. As I note below, at the hearing the parties agreed that the appellant was not an overstayer at the time of the Home Office’s decision and his application was not refused on that basis. The judge noted that the appellant’s child was not a British citizen and had not lived in the UK for 7 years and the Respondent had found there were no insurmountable obstacles to his returning to Spain, nor did the respondent consider that his private life or exceptional circumstances provided a basis for to grant leave to remain.
5. The judge then set out the course of the appeal hearing, the material before her and the evidence (at [7]-[24]), albeit she did not set out the submissions of the parties. The judge then summarised some of the relevant legal principles that apply to article 8 ECHR (at [25]-[28]) including stating at [27] that she would take into account sections 117A-D of the Nationality, Immigration and Asylum Act 2002.
6. The judge set out her findings (at [29]-[50]). She considered and applied the principles in Razgar v SSHD [2204] UKHL 27 [2004] 2 AC 368. The judge considered whether Immigration Rule EX.1 was met and whether there were insurmountable obstacles and considered none were established. She found that the appellant did not meet the requirements of appendix FM of the Immigration Rules and the respondent’s decision in respect of private life was justified. The judge then considered the requirements of Paragraph GEN 3.2 of the Immigration Rules (from [43]) and found that there would be unjustifiably harsh consequences of his return to Spain; he will be required to be separated from his family for an indefinite period and it will be harsh for his children to return to Spain, a country he left at age 3. The judge concluded that Rule GEN 3.2 was satisfied and that accordingly the decision was not justified or proportionate, the appeal was allowed on that basis.
Grounds of Appeal
7. The respondent advances two ground of appeal: first that that the judge made a mistake of material fact that the appellant was an overstayer, his application was in fact made when he had leave to enter, the judge did not approach the appeal with anxious scrutiny. Second, the grounds assert that the judge failed to give reasons or adequate reasons for findings on material matters and/or made a material misdirection of law on material matters. It is submitted that the judge failed to identify any valid reasons preventing the appellant from returning to Spain to apply for an EU family permit. The increased financial threshold under appendix FM was not relevant in those circumstances. The judge failed to identify any insurmountable obstacles to return. The judge bypassed the public interest tests in ss.117A-D of the 2002 Act by citing rule GEN.3.2. The judge’s findings at [46] are unclear, the judge failed to identify any unusual or exceptional dependency for article 8 to be engaged.
8. These grounds were developed in a number of ways in the written grounds of appeal which Ms. Blackburn adopted at the appeal hearing, which I set out in greater detail below
The Law
9. The Appeal comes before the Upper Tribunal to decide first whether there is a material error of law in the judge’s decision, and if it does, to re-make the decision or to remit the appeal to the First-tier Tribunal to do so.
10. In Razgar v SSHD [2204] UKHL 27 [2004] 2 AC 368 Lord Bingham held at [51] (with emphasis added):
The other type of 'domestic' article 8 case arises where there is no question of expulsion but immigration control prevents other close family members joining a spouse or parents living in the contracting state. The first was Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, in which the argument that Convention rights were not engaged at all in immigration cases was roundly rejected. Husbands and wives have the right to respect for their family life even if they have not yet established a home together. But the Convention does not give them the right to choose where that home shall be. There were no obstacles to these couples establishing their family life in their husbands' countries of origin rather than in the United Kingdom. They knew that the husbands had no right of entry when they married. There was thus no breach of article 8. But there was a breach of article 14. If the sexes had been reversed, the wives would have been allowed to join their husbands here. The different treatment of husbands and wives could not be justified by the differential impact upon the labour market.
11. In IA & Ors v Secretary of the Home Department [2025] EWCA Civ 1516 a recent decision of the Court of Appeal reviewed the authorities relevant to the weighing of the proportionality balance under article 8 ECHR at [101]-[112] including Jeunesse v The Netherlands, (GC) 12738/10, 3 October 2014, (2015) 60 EHRR 17, El Ghatet v Switzerland 56971/10, 8 November 2016 and R (Agyarko) v. SSHD [2017] UKSC 11, [2017] 1 WLR 823 including at [112] that in Agyarko:
At [54]-[60] Lord Reed held that the requirement for “exceptional circumstances” for leave to remain to be granted outside the rules was not inconsistent with either ECtHR or domestic authorities.
The submissions of the Parties
12. Ms. Blackburn adopted the written grounds of appeal and submitted as follows:
a. Ground 1: the Judge assessed the case on an incorrect factual basis. The position as to visitors vs overstayers is different. If the judge had applied the correct test the outcome would have been different, that is a material error.
b. Ground 2: the judge failed to identify why the appellant could not make an application for leave under the EU settlement scheme. This was argued below. The appellant could apply to join his sponsor, who is here and is an EU national with status. He could obtain entry clearance on that basis from Spain. The judge placed weight on the requirements of appendix FM, but that situation would not have arisen if the appellant returned to Spain. The judge found no insurmountable obstacles at paragraphs 38 and 41. It is unclear why the judge therefore found the public interest in immigration control was outweighed. The Judge did not apply s.117B. The judge cites s.117A-D at paragraph 27, but did not apply those sections. The lack of reference to that section in the reasoning is a material error. The judge considered the applicant as an overstayer, which was a factual error. It was not a case where appendix FM was the only route open to the appellant.
c. If there is a material error, the issues in this case could be resolved in the Upper Tribunal, there is a limited dispute about the facts, the relationship is accepted, it would turn on entitlement under Appendix EU and the difference between being an overstayer and a visitor, there are significant delays before the First-tier Tribunal.
d. The difficulty in understanding the judge’s judgment at paragraph 46 links to the Respondent’s general point about a lack of anxious scrutiny, the judge should have explained their conclusions more clearly than they did.
13. Mr. Holt submitted as follows:
a. The question of whether the appellant has a viable route under the EU settlement scheme is complicated and is not specified by the respondent. The respondent has alluded vaguely to it but has not spelled out what it is. It is conceivable that there might be such a route, but it is not obvious. Appendix EU (Family Permit) of the Immigration Rules at FP6 sets out the criteria, it is not obvious that the appellant would succeed. As of December 2023 his partner then had pre-settled status, under the EU settlement scheme. That might not be relevant. What more focus could the judge have given to this issue beyond what they did? Paragraph 46 of the judgment is hard to understand. The reference to Younas [2020] UKUT 129 (IAC) is to a line of authorities that considers whether there is a public interest in asking a person to leave the UK to make an application when there is a reasonably high prospect of that application succeeding. The Judge appears to be saying in this case the appellant could meet financial requirements and relationship requirements at the time of the decision, and, this is a case where the appellant could have made an application under the EUSS as a joining family member and could have argued the only barrier was his immigration status, so there is no bar. The reference to ‘but for’ his immigration status suggests that he is an overstayer, but it is accepted that that is wrong. It is one of a number of reasonable interpretations of paragraph 46 that he is an overstayer. The question is therefore materiality.
b. The appellant’s position is that these parts of the judge’s judgment show errors but they are immaterial. The judge was entitled to find as a basic principle that there would be consequences which involve separation in any event. The only alternative to allowing the appeal was to find there would be some degree of separation. That was open to the Judge. The second finding relies on rule GEN 3.2, that separation has unjustifiably harsh consequences, that finding was also open to the judge. That finding would ideally had included a reference to s.117B, but the likelihood is that the judge would have reached the same conclusion, that separation would meet the requirements of rule GEN3.2.
c. If there is a material error the case should be remitted to the FtT. The issue of EUSS and private and family life should be considered afresh in those circumstances.
Discussion
14. The judge determined that the refusal of the appellant’s application for leave to remain amounted to a disproportionate interference in his and his family’s rights under article 8 ECHR and in light of Immigration Rule GEN3.2. I have come to the conclusion that was a material error of law which must be set aside. I give reasons for that conclusion below. In general terms I prefer the submissions of the respondent to those of the appellant on this issue.
15. First, the respondent submits that the judge approached the appeal on an incorrect factual basis: that the appellant had been refused leave on the basis that he was an overstayer. The parties agreed at the appeal hearing before me that the appellant was not an overstayer at the time of his application and that his application was not refused on that basis. I accept the respondent’s submissions on this issue. The judge was wrong as a matter of fact to find that the appellant was an overstayer, he was not. I also accept that this error infected critical findings that the judge went on to make. These included, at paragraph [34], that the judge was required to consider paragraph EX.1 of the Immigration Rules. The parties agreed that the judge was not required to consider that rule. Regardless of the judge’s conclusion that the appellant could not succeed under paragraph EX.1, it was not necessary for her to consider that paragraph at all. It is well established as a matter of law that error of fact is capable of amounting to an error of law (see E v Secretary of State for Home Department [2004] EWCA Civ 49). In this case I am satisfied that that the judge’s error of fact was a material error of law for the reasons I have given.
16. Second, I accept that the judge did not apply section 117B of the Nationality Immigration and Asylum Act 2002 in her judgment. It is correct that the judge stated at [27] that she had to take those sections into account in the part of the judgment dealing with the law. However, there is no indication that she applied those sections in her findings at [29]-[50]. I accept the respondent’s submission on this point that the omission of any reference to show that the judge had in fact applied those provisions amounts to a further material error of law in her approach to the article 8 issues which she had to determine.
17. Third, a substantial amount of the submissions of both parties concentrated on whether the appellant could have made an application under Appendix EU (Family Permit) to the Immigration Rules. The parties agreed that this issue had been canvassed at the hearing before the judge. However, they disagreed as to whether the appellant was likely to succeed in such an application. However, what seems more significant to me than this question, is that the judge did not grapple with this issue in any meaningful way, beyond paragraph 46 of the judgment, which I will consider further below. I consider that there is merit in the respondent’s submission that the judge did not deal with this issue and I consider that this gives rise to a further material error of law.
18. Fourth, the one paragraph of the judgment where the judge did make reference to the possibility of appendix EU was paragraph 46. The judge said this:
This is not a case in which the appellant could not meet the financial or English language or relationship rules as at the time of application or even decision and nor is it a case whereby, even if properly advised, he would not have been able to make an application under the EUSS as a joining family member and therefore, as at the time he made his application, he could have argued, that but for his immigration status, he met the immigration rules and so may have been able to argue that there was no public interest in his removal as per YOUNAS ([2020] UKUT 129 (IAC)) and subsequently ALAM & RAHMAN ([2023] EWCA Civ 30). But the rules have changed since the date of the application and the decision and so these cases do not avail him. He cannot now meet the financial rules and therefore there is a bar to his successful entry clearance to the UK other than his immigration status.
19. Both I and the parties found that paragraph hard to interpret and parse. The first sentence states that it is not a case where the appellant could not meet the financial or English language rules at the time of the application. This would suggest the judge found that he could meet those requirements, although it is not clear why. The judge then said it was not a case where the appellant could not have made an application under the EUSS, so it appears she was saying that he could have made such an application and could have argued that he met the requirements of the rules at the time. It is not clear which financial rules in force at that time that the judge decided the appellant could not meet, referred to at the end of that paragraph, that would be a bar to his obtaining entry clearance. Mr. Holt did not submit that Appendix EU Family permit contained financial rules that the appellant would not be able to meet. Whilst I do not endorse the characterisation of this paragraph as ‘nonsense’ in paragraph 15 of the grounds of appeal, I accept that the way it is drafted is opaque. It is not possible to understand the judge’s reasoning given the way that it is drafted. The respondent cites the case of Budathoki (reasons for decision) [2014] UKUT 00341 (IAC) as authority for the proposition that judges must give reasons for preferring one side’s case to the other so that the parties can understand why they have won or lost. I am unable to say that paragraph 46 meets that test. Mr. Holt accepted by the end of the hearing that the contents of that paragraph do amount to an error. For the reasons I have given above I consider that this part of the judge’s reasoning also contained a material error of law.
20. Fifth, it follows from the matters I have set out above, that I accept the respondent’s submission that it was not necessary for the judge to consider Immigration Rule GEN 3.2 in the circumstances. Their conclusions that the appellant’s separation from his son would be unjustifiably harsh was a material error in circumstances where neither the possibility of an application under Appendix EU for a family permit nor sections 117A-D of the 2003 Act received the proper consideration that they required.
21. For all of these reasons I conclude that the judge’s decision did contain material errors of law. I set it aside.
Remit or remake?
22. The respondent submitted that if I found a material error of law that I should retain this matter in the Upper Tribunal given the limited dispute between the parties over the facts. Mr. Holt submitted that the case should be remitted to the First-tier Tribunal for a fresh appeal hearing.
23. In those circumstances, I apply part 3 of the Practice Directions of the Immigration and Asylum Chambers of the FTT and the UT, as amended on 18 December 2018 and the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. In considering what fairness demands, I bear in mind that there will be a need for extensive fact finding and that retaining the case in the Upper Tribunal deprives the appellant the opportunity of taking advantage of the two tier appeals process. Accordingly, I conclude that the case should be remitted to the First-tier Tribunal.
24. It follows that the Secretary of State’s appeal against the decision of the judge succeeds and I set it aside, finding that it contains a material error of law.

Notice of Decision
25. The First-tier Tribunal’s decision involved the making of a material error of law.
26. The appeal is remitted to the First-tier Tribunal for re-making with no findings preserved, to be heard by a judge of that Tribunal other than judge Hawden-Beal.

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 February 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email