Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000039
First-tier Tribunal No: HU/58744/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22nd April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

TEMITOPE BABATUNDE ODEYEMI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bello
For the Respondent: Ms S Keerthi

Heard at Field House on 7 April 2026

DECISION AND REASONS

1. This is an appeal by the appellant against the decision of First-tier Tribunal Judge S Taylor (“the Judge”) who dismissed the appellant’s appeal on human rights grounds (“the decision”).
Background
2. The appellant is a national of Nigeria who has been an overstayer since 2012. The appellant applied for leave to remain as the partner of a British citizen on 31 May 2024. The Secretary of State (“the respondent”) refused the application on 15 July 2024. The appellant appealed to the First-tier Tribunal and the appeal was heard on 3 November 2025. The Judge dismissed the appeal in a decision promulgated on 6 November 2025.
Appeal to the Upper Tribunal
3. The appellant applied for permission to appeal to the Upper Tribunal (“UT”). Permission to appeal to the UT was granted on limited grounds on 2 January 2026 by First-tier Tribunal Judge Adio.
Upper Tribunal Hearing
4. It was agreed that permission was only granted in respect of ground 2. Mr Bello addressed the UT on the matters set out in the appellant’s application for permission to appeal which can be categorised as follows: The Judge materially erred in
a) failing to give weight to material matters (pregnancy and imminent birth of the child); and
b) giving weight to immaterial matters (English language test) in relation to the Judge’s consideration of insurmountable obstacles and the Article 8 proportionality assessment.
c) failing to consider section 55 of the Borders, Citizenship and Immigration Act 2009.
5. I heard submissions in response from Ms Keerthi in response. Mr Bello then addressed me on matters arising from Ms Keerthi’s submissions.
6. At the end of the hearing, I reserved my decision. I do not propose to rehearse the oral submissions made but will consider and address these as part of my analysis set out below. I will deal firstly with the arguments raised pertaining to section 55 before moving on to consider the submissions made in respect of weight to immaterial matters and material matters within the legal framework of Appendix FM (insurmountable obstacles) and Article 8 of the ECHR.
Analysis and Conclusions
Section 55 of the Borders, Citizenship and Immigration Act 2009
7. The grounds argue that the Judge erred by failing to consider the respondent’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009. The grounds argue that there was a statutory duty to consider the best interest and future well-being of the unborn child. In the skeleton argument provided, it was argued that there was a duty on the Tribunal to consider the best interests of the child and that this applies even where the child is unborn. Mr Bello conceded in his submissions that section 55 did not apply in cases where there was an unborn child. His submissions was that the spirit of section 55 required the Judge to carry out a best interest analysis. However, Mr Bello could point to no legal authority to support his argument.
8. The respondent in its Rule 24 response argued that the appellant’s unborn child has no legal personality before his or her birth. It is also argued that section 55 was not a matter the Judge had to consider, although it could become a relevant matter in the Article 8 balancing exercise in the near future. It is argued there is no “near miss” principle which benefits the appellant in the Article 8 balancing exercise. Ms Keerthi submits there is no legal authority supporting the point made that the Judge should have carried out a best interest analysis in a case where there was an unborn child.
9. Having considered the submissions, I find Mr Bello is correct to concede that section 55 did not apply at the date of decision. Having accepted the concession was rightly made, I find there is no legal authority for the proposition that the Judge should apply the “spirit” of section 55 to an unborn child. I find the Judge was not required to conduct a best interests assessment in respect of a child who had not yet been born. In the circumstances, the Judge was correct to state that section 55 did not apply at the date of decision. I find there is no error established in respect of the arguments pertaining to section 55.
Giving Weight to Immaterial Matters
10. The appellant states that the Judge placed too much weight on the fact that the appellant did not take the English language test and on the fact the appellant had overstayed.
11. I am not persuaded by the submissions as to a material error of law made by Mr Bello on behalf of the appellant. The Judge was plainly required to take into consideration these two matters when deciding whether the appellant met the requirements of Appendix FM. Only once Judge concluded that these requirements were not met was the Judge able to consider whether the facts of the case met the test in EX.1. I find that what weight the Judge gave to the fact that the appellant did not take the English language test and the fact the appellant had overstayed was a matter for the Judge.
12. I find the challenge in respect of the English language test and overstaying is effectively a perversity challenge, namely that the Judge had made perverse or irrational findings on a matter that was immaterial to the outcome. As I have already stated above, these matters were clearly relevant and matters which the Judge ought to and did take into consideration. For the reasons set out above, I find that the conclusions reached by the Judge were rationally open to them.
Failure to Give Weight to Material Matters
13. The grounds argue that the Judge failed to give weight to the partner’s pregnancy and the imminent birth of their child. The grounds argue that the Judge failed to give weight to the logistical issues of the pregnant partner leaving the UK and the fact that the partner would need the appellant to be with her at the birth of their child. It is argued that the Judge failed to assess the consequences of removal on the appellant’s family life.
14. In the Rule 25 response, it is argued that the Judge’s conclusion that partner can give birth in the UK and that the appellant remains in contact with his partner reduces family life to remote communication. The response argues that the appellant’s partner is not of Nigerian heritage and cannot settle in Nigeria or find employment. It is argued that these are clearly insurmountable obstacles to relocation. Mr Bello fleshed out those submissions in more detail. Mr Bello submits that the Judge did not consider the reasonableness of expecting the appellant’s partner to travel to Nigeria when pregnant and the psychological effects of the appellant not being in the UK when the child was born. It was argued that the reasoning was mechanical and there was no consideration of the challenges the family would face.
15. The respondent argued in the rule 24 response that the Judge considered the appellant could soon become the father of a British Citizen. The respondent argued that the parties can understand the reasoning of the Judge. It is argued that the grounds are an expression of dissatisfaction with the outcome and disagreements on matters of fact and weight. Ms Keerthi submits that issues of weight is for the Judge. A judge can arrive at a different conclusion without any perversity or irrationality in the decision.
16. I find the Judge did consider the fact the appellant’s partner was pregnant. I find the Judge found the appellant’s partner had a choice. The choices she had were either a) she could leave the UK with the appellant for a limited period or longer period; or b) she could remain in the UK whilst the appellant returned to Nigeria.
17. I find the Judge considered the implications of either of those choices. In relation to option 1, I find that the Judge did consider that the partner had a choice to accompany the appellant either for a limited period or for a longer period. In terms of the difficulties with relocation, I find the Judge considered that the appellant retained knowledge of the language and culture of Nigeria; that he was of working age and had no medical reasons why he did not work and maintain himself on return; that the appellant had a family home in Nigeria and they could live there in the first instance; that there was no viable reason why they could not stay with the appellant’s mother; that the partner was a civil engineer and whilst it was difficult for her to find employment in Nigeria from the UK, the Judge was not satisfied that she would be unable to find employment if she was in Nigeria.
18. I find it is clear from the Judge’s decision and reasons that the Judge was aware the appellant’s partner was not of Nigerian heritage. The findings the Judge made that the appellant’s partner could find employment when in Nigeria was a finding open to the Judge to make. I find from the decision that the Judge had considered the difficulties with relocation but was not satisfied that these were insurmountable. I am satisfied the Judge gave adequate reasoning for why relocation to Nigeria was not an insurmountable obstacle.
19. In relation to option 2, I find the Judge did consider at paragraph 18 what support the appellant’s partner would have if the appellant was not in the UK at the time of the birth of the child. The Judge found that the appellant’s partner had all her family in the UK. I am satisfied the Judge gave adequate reasoning for the conclusion reached that the appellant’s partner would have support if the appellant was not in the UK. I find the grounds amount to no more than a disagreement that with the outcome.
20. I find that the Judge had given weight to the pregnancy and imminent birth of the child when considering the two options available to the appellant and his partner. I am not persuaded by the submissions as to a material error of law made by Mr Bello on behalf of the appellant. I find the Judge had considered the consequences of removal on the appellant’s family life whether family life continued in Nigeria or where the appellant alone returned to Nigeria. The conclusion reached that there were no insurmountable obstacles was open to the judge on the evidence. I find the Judge had applied correctly the test pursuant to EX.1. I find the grounds amount to no more than a disagreement with the Judge’s findings.
21. It is argued in the Rule 25 response that the Judge’s reasoning contained no structured assessment of the appellant’s family life rights and no proportionality balancing exercise.
22. I am satisfied the Judge had weighed the public interest considerations including the appellant’s immigration history. At paragraph 19, the Judge held that because the appellant did not meet the requirements of the immigration rules and having weighed the public interest considerations, there were no exceptional circumstances which would lead the Judge to consider the appeal outside of the Rules. I find this was a finding open to the Judge to make on the evidence. Furthermore, I find the conclusion that temporary separation, in order to make an out‑of‑country application would not be disproportionate, was a conclusion open to the Judge in light of the appellant’s immigration history. The judge was entitled to attach significant weight to the public interest in immigration control and to the appellant’s lack of lawful status since 2012.
23. Overall, the submissions advanced on the appellant’s behalf amount to no more than a disagreement with the Judge’s conclusions. I find that there was no material error of law in the decision challenged.
Notice of Decision
The appeal is dismissed.
The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2026