Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005435

Ex tempore decision First-tier Tribunal No: HU/52530/2023
LH/00402/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of September 2026

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

ERNEST CHUKWUDI ANAGHA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Mr Nappey, Senior Home Office Presenting Officer

Heard at Field House on 15 September 2026

DECISION AND REASONS

1. The appellant is a citizen of Nigeria. By a decision issued on 16 April 2026, I set aside the decision of the First-tier Tribunal allowing the appellant’s appeal. A copy of the error of law decision is appended to this decision. I now remake the decision.

2. The appellant sought entry clearance under Appendix FM to the Immigration Rules to join his wife in the UK. However, the appellant is subject to an extant deportation order. Accordingly, he is prohibited from entering the UK.

3. Neither the appellant nor the respondent drew this to the First-tier Tribunal’s attention. The respondent raised it for the first time in her grounds for permission to appeal to the Upper Tribunal.

4. The appellant did not attend the error of law hearing on 16 March 2026. Prior to that hearing, he was represented and his representatives wrote to the Tribunal on two separate occasions seeking to withdraw the appeal. As it was the respondent’s appeal, those applications were refused.

5. In the error of law decision, it was directed that if the appellant wanted to make an application to withdraw the appeal, he should do so within 21 days of receiving the decision. No such application was made.

6. The appellant and the sponsor were both sent notices of this hearing and the appellant was sent a link to attend the hearing remotely. The appellant did not sign on to the link and the sponsor did not attend the hearing.

7. On the morning of the hearing, my clerk attempted to contact the appellant and the sponsor by telephone on numbers provided by Mr Nappey. There were three different numbers and none of the numbers rang. I put the hearing back until 12.00 pm. At that point I was satisfied that the appellant did not wish to participate in these proceedings and that the appeal could proceed in his absence.

8. The appellant is the subject of an extant deportation order. Mr Nappey confirmed that there has been no application to revoke the deportation order and it remains in place.

9. Accordingly, the appellant cannot be admitted to the United Kingdom and I therefore dismiss his appeal.

Notice of Decision

The appellant’s appeal is dismissed.

Judge Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

The above is a corrected transcript of ex tempore reasons given at the conclusion of the hearing.
Transcript approved on 25 September 2026

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005435
First-tier Tribunal Nos: HU/52530/2023
LH/00402/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE DURANCE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ERNEST CHUKWUDI ANAGHA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A Nolan, Senior Home Office Presenting Officer
For the Respondent: No appearance

Heard at Field House on 16 March 2026

DECISION AND REASONS

Introduction
1. The Secretary of State for the Home Department (‘SSHD’) appeals with the permission of Upper Tribunal Judge Perkins against the decision of First-tier Tribunal Judge Adio (‘the judge’) dated 29 August 2025.
2. Mr Anagha, a Nigerian national, sought entry clearance under Appendix FM to the Immigration Rules to join his wife in the UK.
The Respondent’s Decision
3. The SSHD refused his application in a decision dated 6 February 2023. The SSHD concluded that Mr Anagha’s application falls for refusal on grounds of suitability under Section S-EC of Appendix FM because he had previously contrived in a significant way to frustrate the intentions of the Immigration Rules by overstaying his visa. The SSHD noted that there were aggravating factors because Mr Anagha had absconded from reporting, had been involved in a sham marriage, continued to make frivolous applications and was deported from the UK at public expense. Mr Anagha’s application was refused under paragraph 9.8.2 of the Immigration Rules.
4. In addition, the SSHD was not satisfied that Mr Anagha’s relationship was genuine and subsisting or that he intended to live together with his wife in the UK. The SSHD was not satisfied that Mr Anagha met the English language requirement and the SSHD did not consider that there were any exceptional circumstances in Mr Anagha’s case.
The Appeal to the First-tier Tribunal
5. Mr Anagha appealed against the refusal of his human rights claim. The appeal came before the judge on 19 August 2025. Mr Anagha’s wife attended and gave evidence at the hearing.
6. Under the heading “Issues in Dispute”, the judge recorded:
“5. The Appellant’s representative Mr Obiakor concedes that the Appellant cannot meet the suitability requirements under Section S-EC of Appendix FM as well as paragraph 9.8.2 of the Immigration Rules.
6. The parties agree that the following issues remain in dispute:
(a) Whether the Appellant meets the eligibility requirements of Section E-ECP of Appendix FM of the Immigration Rules.
(b) Whether there are exceptional circumstances in the Appellant’s case which could or would render refusal a breach of Article 8 of ECHR because it could or would result in unjustifiably harsh circumstances for him or his family”.
7. The judge noted that the application was correctly refused under the suitability requirements.
8. The judge accepted that Mr Anagha and his wife were in a genuine and subsisting relationship which had resulted in their marriage. In respect of their relationship the judge stated at [14]:

“The Respondent is correct to raise an eyebrow with regards to the credibility of the Appellant however, I have heard evidence from the Sponsor Ms Mbafotu. Her oral evidence of how she met the Appellant in 2003 when they went to secondary school is consistent with her statement. They had known each for a long time but it was not until January 2019 that they developed a romantic relationship. There is evidence that the Appellant and Sponsor communicate. There is evidence of messages and video calls and photographs taken together. The Sponsor stated that they communicate every day via WhatsApp, phone and video calls and they share everything from daily activities to future plans. I note that the Sponsor does know about the Appellant’s businesses in Nigeria. She stated that she has visited Nigeria on multiple occasions to be with her husband and now they are expecting their first child. There are a number of photographs from the wedding. Both at the registry and before the priest. I have seen the messages exchanged by the couple and there is evidence that the Sponsor has visited Nigeria as stated. There is also evidence that they have purchased land together in Nigeria. I therefore find that there is a commitment on both sides to the relationship and I am prepared to accept, based on the oral and documentary evidence before me that there is a genuine relationship between the Appellant and the Sponsor which has resulted in their marriage. They have now been married for over two years. It will be three years in September since they have got married.”
9. The judge noted that there is a substantial public interest in the maintenance of immigration control, considered the matters which showed that Mr Anagha did not comply with the law and acknowledged that they are matters of public interest. On the other side of the scale, the judge considered Mr Anagha’s “very strong family life” between him and his wife and that there is an unborn child on the way. The judge concluded that to keep Mr Anagha “outside the UK indefinitely would keep his wife and him separated and from the baby expected soon.” The judge concluded that it would be “unjustifiably harsh and give rise to serious hardship for the Appellant to be denied to join his wife in the UK” stating at [18]-[19]:
“…’He has served his time outside the UK. He has turned a new leaf, and I find that his newfound character is a positive one and one that would keep him out of crime in the future in the UK. There is a likelihood that once his wife has a child and is not able to work then they would fall below the income threshold level which would then lead to him being refused in the near future again. At the present time the evidence shows that at the date of the hearing he satisfies the requirements of the Immigration Rules barring the suitability requirements. I have already found that taking all the matters into account, his relationship with his wife and his behaviour since the past nine years are such that it would make it disproportionate for him to be denied entry clearance to join his wife in the UK.
Notwithstanding the strong public interest I am satisfied that the refusal gives rise to unjustifiably harsh circumstances and interference with the family life of the Appellant which outweighs the public interest on this occasion. I find that the decision is therefore disproportionate.”
10. The judge allowed the appeal on human rights grounds (Article 8 only).
The Appeal to the Upper Tribunal
11. The SSHD sought permission to appeal to the Upper Tribunal on two grounds:
1. Ground 1: the judge should have dismissed the appeal on the basis that the law required the Entry Clearance Officer to refuse the Mr Anagha’s application for entry clearance; and
2. Ground 2: the judge had erred in his assessment of Article 8 ECHR.
12. In the grounds, the SSHD records that it is not disputed that Mr Anagha’s relationship with his partner is genuine.
13. The judge refused permission to appeal to the First-tier Tribunal. However, it was granted by Upper Tribunal Judge Perkins in the following terms:
“The First-tier Tribunal allowed the appeal of a person subject to a deportation order who was refused entry clearance. The appeal was not against a refusal to revoke the deportation order and, for the reasons given in the Secretary of State’s grounds, the First-tier Tribunal’s decision was arguably wrong.
I give permission on all grounds”.
14. Mr Anagha did not provide a response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
15. On 9 March 2026 Mr Anagha’s previous representatives wrote to the Upper Tribunal stating that he was no longer pursuing the appeal. An Upper Tribunal legal officer responded stating:
“This appeal has been brought by the Secretary of State for the Home Department and Mr Anagha is acting in this appeal as the Respondent. Therefore, any request to withdraw this appeal would need to be brought by the SSHD for the Home Department themselves. This appeal will remain listed to be heard for the 16 March 2026”.
16. Mr Anagha’s previous representatives wrote to the Upper Tribunal again on 10 March 2026 with a notice of ceasing to act and a formal notice of withdrawal. They stated that Mr Anagha had instructed them that he no longer wished to pursue his defence in the appeal. They submitted that the withdrawal brought an end to Mr Anagha’s participation in proceedings and that the hearing be vacated. They also noted that they were no longer acting for him and would not attend the hearing.
17. On 11 March 2026 an Upper Tribunal legal officer responded saying the position was maintained and that as it was the SSHD’s appeal, it would be for the SSHD to withdraw the matter and as such the hearing would remain listed.
The Hearing
18. At the hearing before us no one attended the hearing on Mr Anagha’s behalf. Our clerk phoned his former representatives who confirmed that Mr Anagha was aware of today’s hearing and aware that it was going ahead. It appears that Mr Anagha does not seek to defend the decision of the First-tier Tribunal. However we must decide for ourselves whether the judge materially erred in law.
19. We heard submissions from Ms Nolan on behalf of the Secretary of State.
Discussion
Ground 2: Assessment of Article 8
20. We will address ground 2 first. We are satisfied that the judge materially erred in his assessment of Article 8 ECHR.
21. We are satisfied that the judge failed to adequately consider that Mr Anagha and his wife’s relationship began when he was living in Nigeria and that their relationship thus far has been conducted whilst he lives there. The judge noted that Mr Anagha had business interests in Nigeria, they had purchased land together in Nigeria, they got married in Nigeria and Mr Anagha’s wife visited him in Nigeria.
22. The judge found that to keep Mr Anagha “outside the UK indefinitely would keep his wife and him separated and the baby expected soon.” However, there is no consideration as to whether they could continue their relationship as it had been conducted thus far and/or whether it could be conducted in Nigeria.
23. We are therefore satisfied that the judge materially erred in law in his assessment of Article 8 ECHR and the decision should be set aside.
Ground 1: Extant Deportation Order
24. We consider that the decision should be set aside because the judge erred in his assessment of Article 8 ECHR. Accordingly, we are not required to consider whether he erred in respect of the extant deportation order. We do however, make the following observations.
25. We accept and it is clear from statute, that entry clearance must be refused to those with an extant deportation order. It does not appear to be in dispute that Mr Anagha has not made an application to revoke the deportation order. Accordingly, if we had upheld the decision of the First-tier Tribunal, Mr Anagha could not be admitted to the UK.
26. We note however, that the SSHD did not refuse Mr Anagha’s application on the basis of his extant deportation order. As highlighted above Mr Anagha’s application was refused on the suitability requirements, eligibility requirements and because he did not meet the requirements of Article 8 ECHR. There are only two references to Mr Anagha’s deportation in the decision letter. Firstly it states on 31 March 2015 he was served with a notice of decision to deport, and on 22 March 2016 he was deported at public expense.
27. The respondent’s review dated 17 February 2025 also makes no reference to the extant deportation order.
28. It is clear from the judge’s decision that the SSHD was represented at the hearing. Mr Anagha was also represented at the hearing. The judge records the issues that the parties agreed were in dispute, as I have outlined above at [6]. There is no reference to the extant deportation order.
29. In November 2024 the First-tier Tribunal published the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal. Procedural rigour is identified as a guiding principle of the Practice Direction in achieving an issues-based approach. The importance of issued-based reasoning and procedural rigour has been emphasised by the Upper Tribunal in TC (PS Compliance – “Issues-Based” Reasoning) Zimbabwe [2023] UKUT 00164 (IAC) and Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). In Lata the Upper Tribunal stated at [28]:
“If follows that unless a point was one which was Robinson obvious, a Judge’s decision cannot be alleged to contain an error of law on the basis that a Judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.”
30. It is extremely unfortunate that neither the SSHD or Mr Anagha (who was legally represented) drew the judge’s attention to the fact Mr Anagha had an extant deportation order.
Conclusion
31. We are satisfied that the judge materially erred in law in his assessment of Article 8 ECHR and we set the decision aside. There is no challenge to the finding that Mr Anagha is in a genuine relationship with his wife and that finding stands.
32. If the appeal proceeds to re-making the Upper Tribunal will be required to consider the extant deportation order.
33. The matter will be retained the Upper Tribunal for further case management.
34. Prior to the hearing Mr Anagha indicated that he wanted to withdraw the appeal. As the SSHD’s appeal has now been allowed and this matter has proceeded to re-making Mr Anagha is entitled to withdraw his appeal if he wishes to do so.
Notice of Decision
35. The decision of the First-tier Tribunal contains material errors of law. Accordingly, it is set aside. The finding that Mr Anagha is in a genuine relationship with his wife is preserved.
Directions
1. Within 21 days of receiving this decision Mr Anagha is directed to make an application to withdraw his appeal if he wishes to do so;

2. Thereafter, this matter will be placed before a Judge for further case management.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2026