Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005558

First-tier Tribunal No: HU/57586/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2026

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Paulin Sheba Rani Samikannu
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms S Jegerajah instructed by Kothala & Co Solicitors.
For the Respondent: Mr D Simpson, Home Office Presenting Officer.

Heard at Field House on 2 March 2026

DECISION AND REASONS
1. The appellant appeals against the determination of FtT Judge Wass (the judge) who dismissed the appellant’s appeal on 10th October 2025. The appellant had appealed the decision of the respondent dated 6th June 2025 refusing her application for leave to remain under Appendix FM of the Immigration Rules.
2. The grounds of appeal were as follows
Ground (i)
3. Failure to take into account adequately relevant facts when determining the proportionality under Article 8, of the appellant’s short-term removal to India.
4. At [21]–[27] the judge considered whether there were any exceptional circumstance to grant the appellant’s appeal under Article 8 ECHR. At [21]–[22] the judge determined that it was in the public interest for the appellant to return to her native India to apply for entry clearance to rejoin her British husband in the UK. The judge thought the application was likely to succeed given that the appeal had satisfied all the requirements for leave to remain as a partner save for the immigration status requirement.
5. At [24] the judge determined that it was in the public interest and proportionate for the appellant to return to India temporarily to make an application for entry clearance given the appellant’s poor immigration history which included her having no leave to remain since 7th July 2015.
6. The judge materially erred in determining at [23] that the appellant would in all likelihood be granted entry clearance to the UK. Given her immigration history which included her absconding from reporting requirements on 6th April 2017 (as set out in the refusal decision dated 6th June 2025), withdrawing an asylum claim on 29th April 2022 and having no lawful leave since 7th July 2015, it was far from likely that an application for entry clearance would be granted. It would be open to the respondent to refuse under S-EC.1.5 of the suitability requirements of the Immigration Rules.
7. The judge’s paragraphs at [23] and [26] were contradictory and there was no explanation why the application might succeed. The analysis was incoherent. The judge also failed to take account that the appellant was sentenced to 60 hours community service and a 10 day rehabilitation order activated on 11th May 2027 for the acquisition, retention use or control of criminal property. The judge should have taken further account of the criminal conviction in order to find proportionality that she should be allowed to remain. The Judge’s view that it was in the public interest for there to be a short-term, temporary, separation of the appellant and her husband was materially ill conceived. By requiring the appellant to return to India, there is, contrary to the Judge’s analysis, the distinct prospect that separation between the appellant and her British husband would be permanent.
Ground (ii)
8. As set out in the application dated 3rd November 2022 and in the witness statements the appellant’s husband is a British citizen and had lived in the UK since the age of 13 and had no experience of living in India. He owns a home and runs a business in the UK.
9. The judge did not take this into account. Those factors were highly relevant and fact specific. There were cultural barriers to inform whether EX.1 was engaged as per Agyarko [2017] UKSC 11 and in relation to any unjustifiably harsh consequences on removal.
Grant of permission to appeal
10. Permission to appeal was granted essentially on the basis that the appellant’s immigration history arguably provided adequate reasons to suspect that an Entry Clearance Officer would refuse any such application and the judge erred in finding otherwise at [23]. UTJ Blundell when granting permission stated that it was doubtful that such an error would strengthen the Article 8 ECHR case. If the application for entry clearance was not certain to succeed, it was doubtful that the line of authority outlined at [21] should have played any part in the assessment of proportionality.
11. The UTJ opined
‘If it had a legitimate part to play, it might well be thought that the likelihood of the application being refused by the future ECO rendered it more, not less, appropriate that the appellant should be expected to return: R (Ekinci) v SSHD [2003] EWCA Civ 765; [2004] Imm AR 15, at [17].’
12. The Secretary of State filed a Rule 24 response and noting paragraphs 41 and 42 of Chikwamba and Ekinci which states at [36]
“36. As I observed in Ekinci, it would be bizarre if the weaker the appellant’s case the readier should the Secretary of State and the appellate authorities to excuse him the requirement to apply for entry clearance abroad.”
13. Additionally, the Secretary of State also observed
‘The partner can return with A whilst she makes the application, resulting in no interference with family life. The Respondent notes the principles of Alam & Anor v SSHD [2023] EWCA civ 30, in that the Tribunal must give great weight to inability to satisfy the immigration rules, that no insurmountable obstacles to family life abroad is a further powerful factor mitigation against Article 8 claims, as is the finding relationships were formed whilst status was precarious. These principles are applicable in the present appeal.’
Submissions
14. Ms Jegerajah submitted the judge proceeded on an error of fact and that was not the public interest. Bearing in mind the history of the appellant it was likely that removal would not be temporary pending the decision on an entry clearance application. The mistake could make a difference to the outcome. The immigration history of the appellant would affect the balance. The genuineness of the relationship had been accepted by the Secretary of State. The judge proceeded on the basis of a temporary readjustment and that was in error and that affected the balancing exercise. The issue was not whether the appellant would ‘win’ but whether it could make a difference. The matter should be remitted to the FtT for a hearing de novo. Ms Jegarajah did not pursue ground 2 with any vigour.
15. Mr Simpson submitted that the appellant had been refused on the basis of procedural grounds and the underlying decision of the Secretary of State had accepted that the appellant was not refused on the basis of suitability. The judge had not ignored the suitability factors but thought, on balance that the application from abroad would be successful.
16. Even if the judge made an error, it would not assist the appellant. From [13] to [20] the judge had not predicated his decision on a temporary removal.
Conclusions
17. In relation to the first ground, at paragraph [23] the judge recorded that ‘given that it is accepted that all the core elements of the application have been met (suitability, financial, English language) I find that it is likely that the application from abroad will be granted’.
18. First, the judge did note the submission of Ms Heybroek on behalf of the appellant at the FtT hearing, that the appellant’s immigration history may cause the application to be refused and did factor in this into the balancing exercise under Article 8. The judge found it likely that the application would be granted and noted the amount of time this may take. The judge did not make a firm assumption that the application would succeed.
19. Second, the judge noted the refusal letter of the Secretary of State that the appellant had met the suitability requirements and must have balanced this into the equation.
20. Third, it is effectively being put forward that owing to her poor immigration history, more weight should be afforded to the appellant’s article 8 side of the balancing exercise. This argument runs counter to R (Ekinci) by suggesting in effect that the worse the appellant’s immigration history is the greater the reduction in the public interest. The judge considered this argument at [26](v) and gave no weight to it, in my view correctly.
21. The Court of Appeal in R (Ekinci) at [17] stated
‘It would be a bizarre and unsatisfactory result if, the less able the applicant is to satisfy the full requirements for entry clearance, the more readily he should be excused the need to apply….. When granting permission to appeal, Sedley LJ said of this appellant's immigration history that "few claimants come to court with a track record of such prolonged evasion and mendacity". True it is, as Sedley LJ also observed, that "the protection of one's human rights is not a reward for virtue and the withholding or dilution of them is not a penalty for vice", but that is not to say that a person's immigration history is an irrelevant consideration when striking the balance between his article 8 rights and the countervailing public interest in maintaining effective immigration control. To my mind it is entirely understandable that the Secretary of State should require the appellant to return to Germany so as to discourage others from circumventing the entry clearance system.’
Further as identified in Chikwamba [2005] EWCA Civ 1779 at [47]
‘it is only in exceptional cases that an adjudicator or the IAT can allow Article 8 considerations to prevail over the public interest in maintaining efficient and orderly immigration control.’
22. I am not persuaded, on close scrutiny, that the judge proceeded on a factual error and nor am I persuaded that the argument that the poor immigration history was a factor in favour of the appellant’s claim rather than detracting from it, is sustainable. The judge would be aware that the outcome of an entry clearance application cannot with surety be predicted.
23. Moreover, the judge had already found at [16] that there were no very significant obstacles to the appellant and her husband relocating to India. The judge specifically rejected that the appellant and her husband would have to live with the family and that they would be unable to find work. The judge was aware of the status of the husband and how long he had lived in the UK. The judge noted that the appellant had worked in India and had an MBA in business. There was no objective evidence that the appellant would have to start at a lowly level or would be unable to obtain employment.
24. In tandem with the findings on the ability of the appellant and her husband to relocate, it is not made out that the judge ignored relevant factors about the husband, his length of time in the UK and which were cited in ground (ii) and which Ms Jegarajah did not pursue, rightly in my view, with vigour.
25. At [17] the judge made findings about the husband’s ability to relocate which were not challenged. He was found to be a care worker and that he also owned a convenience store (in which he did not work). The husband the judge found had a secondary income to his care work and there was no evidence that he could not run the business remotely. If need be, he could sell the business which he had done before. It was simply not accepted at [18] that the husband would not be able to find meaningful employment. Again, although it was asserted that if they sold their home there would be no ‘lump sum’ to rely upon, the judge found that this was not supported by any evidence. Alternative findings were made at [19] in relation to relocation to Sri Lanka which the judge also found feasible.
26. In sum at [20] the judge found that
‘I accept that leaving the UK may involve a period of adjustment for both the Appellant and her husband. However, I am not satisfied that the Appellant has demonstrated to the required standard that any of the issues raised are issues which could not be overcome or would entail very serious hardship for the Appellant or her husband.’
27. The judge was fully aware of the background of the husband but ultimately found, even after references to temporary removal that
‘On the evidence before me there are not sufficiently compelling circumstances to this case which outweigh the public interest factors on the Respondent’s side. Evaluating the evidence as a whole, the removal of the Appellant is not unjustifiably harsh or disproportionate under Article 8 ECHR’.
28. That last summation was not made on the basis of temporary return and the judge having made finding that the application could take years and that the appellant’s husband could relocate without very serious hardship, I am not persuaded that there was any error of law.

Notice of Decision
I find no material error of law and the First-tier Tribunal decision will stand.

H Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

26th May 2026