Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000043

First-tier Tribunal No: HU/55744/2024 LH/00048/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DAVINDER SINGH
(No ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Keerthi (Senior Home Office Presenting Officer)
For the Respondent: Mr H Broachwalla (Counsel)

Heard at Field House on 7 April 2026

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Moffatt (“the Judge”) who allowed the appeal of Davinder Singh on human rights grounds (“the decision”). For convenience, I shall refer to the parties as they appeared before the First-tier Tribunal (“FtT”). Therefore, I shall refer to the Secretary of State as ‘the respondent’ and to Davinder Singh as ‘the appellant’.
Background
2. The appellant is a national of India. The appellant made a human rights claim on 14 August 2023. The respondent made a decision on 10 May 2024 to refuse the human rights claim. The appellant appealed to the FtT and his appeal was heard on 1 August 2025. In the decision dated 1 November 2025, the Judge allowed the appeal on human rights grounds.
Appeal to the Upper Tribunal
3. The respondent applied for permission to appeal to the Upper Tribunal (“UT”) on 7 November 2025. Permission was granted by First-tier Tribunal Judge Parkes on 2 January 2026 on the following terms:
“2. The grounds argue that the Judge erred in considering the Appellant's child which was a new matter arising after the decision and for which consent had not been given by the Presenting Officer. It is also argued that the Judge erred in the approach to EX.1 and whether there were exceptional circumstances and had not addressed the family's ability to live in India.
3. The grounds are clearly arguable. It does not appear that consent was sought or forthcoming and even if the fact of the Appellant's child could be considered it is arguable that the Judge did not approach EX. 1 properly. The Judge does not appear to have considered whether the finances available would be sufficient to meet the income support threshold for a family of that size.
4. The grounds disclose arguable errors of law and permission to appeal is granted.”
Upper Tribunal Hearing
4. Ms Keerthi addressed the UT on the matters set out in the respondent’s application for permission to appeal which can be categorised as follows: The Judge materially erred in a) considering a new matter without seeking the consent of the Presenting Officer; b) failing to correctly consider the requirement of EX.1.(a) of Appendix FM; c) failed to provide adequate reasoning in respect of the best interest assessment; and d) failed to provide adequate reasons as to why the appellant should not return to India and make an entry clearance application. I heard submissions in response from Mr Broachwalla on behalf of the appellant. Ms Keerthi then addressed me on matters arising from Mr Broachwalla’s submissions.
5. At the end of the submissions, I reserved my decision. I canvassed the views of Ms Keerthi and Mr Broachwalla on whether the matter should be retained in the UT or whether it should be remitted to the FtT in the event there was an error of law found.
6. Ms Keerthi was neutral on the issue. Mr Broachwalla indicated that if the UT found an error in respect to Ground 1, then the matter should be remitted to the FtT for remaking but preserving the finding on suitability. If the UT found an error in respect of Ground 2, then it was appropriate to retain the matter in the UT for evidence to be heard in respect of Article 8 and the reasonableness of the child returning to India.
Analysis and Conclusions
7. Having heard oral arguments and having carefully considered the decision, I am satisfied the decision did involve the making of material error on a point of law in relation to Ground 2. My analysis of the material errors is dealt with below.
Ground 1
8. It is argued in respect of Ground 1 that the Judge had committed or permitted a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings by considered a ‘new matter’ without seeking the consent of the respondent via the Presenting Officer in attendance at the hearing.
9. In this case, there is no dispute that the matters contained within the supplementary bundle before the FtT was a ‘new matter’. The issue here is whether the respondent consented to the FtT considering the ‘new matter’. Ms Keerthi argued that the Presenting Officer stating she was not prejudiced by the late service of the bundle was not the same as the respondent consented to the FtT considering the ‘new matter’. Ms Keerthi argued that it was the duty of the Presenting Officer, the Judge and the appellant’s representative to raise this issue as it went to the issue of whether the FtT had jurisdiction. It is argued there is nothing within the decision to indicate that the Judge dealt with this issue.
10. Mr Broachwalla argued that the Respondent was represented by a Presenting Officer at the hearing. There was nothing within the determination to suggest that the Presenting Officer had any issues with the Judge dealing with the purported ‘new matter’. Nothing was raised by the Presenting Officer at the hearing to suggest that the respondent did not consent to the matter being considered. If there were any concerns regarding the purported ‘new matter’, those concerns could and should have been raised by the Presenting Officer however, none were. Furthermore, there is no witness statement from the Presenting Officer to indicate they had raised objections and the Judge proceeded. Mr Broachwalla stated it is entirely speculative to suggest that no consent was given. The decision gave the impression that the Presenting Officer did not object to the late evidence and was content for the Judge to proceed and deal with the issues arising from the late evidence. Mr Broachwalla then took me to the respondent’s policy document which deals with the issue of a ‘new matter’.
11. I find from the respondent’s policy document that it is generally envisaged Presenting Officers would try to consider the matter before the appeal hearing so that consent can be given and so the Tribunal can consider all matters relating to that appellant in a single appeal.
12. It seems to me that this is precisely what happened in this case. It is clear from the decision at paragraph 11 that the Presenting Officer despite the late service, had an opportunity to consider the evidence, was not prejudiced and had no objection to the evidence being admitted. I find it clear that no objections were raised to the FtT’s jurisdiction. I find from paragraph 13, that there was agreement between all parties of the issues to be determined by the Judge.
13. It is therefore clear when one reads those two paragraphs within the decision, that the Presenting Officer did provide consent to the Judge to consider the matters raised within the bundle of documents. Although there was no explicit reference to Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC), I find this was not necessary as all parties were agreed that the FtT would consider the list of issues at paragraph 13. I find no material error has been established.
Ground 2
14. This ground has three limbs. I take each in turn.
First Limb: EX.1.(a) of Appendix FM
15. The first limb is the argument that the Judge made a material misdirection of law by the Judge’s failure to consider the requirements of EX.1.(a) of Appendix FM and secondly failed to provide adequate reasoning with regards to this. It is argued that the Judge must explain why it would not be reasonable to expect the child to leave the UK. It is argued that the Judge did not consider the possibility of the child leaving and accepted the appellant’s wife’s evidence that she would not leave as a fact. It is argued that given the Judge found no insurmountable obstacles to continuing family life outside UK, that it was entirely unclear why it would not be reasonable for the child to go with the appellant to India.
16. Mr Broachwalla argued that the respondent has seemingly conflated the insurmountable obstacles test with the reasonableness test. It is argued that the threshold of whether it would be reasonable for the child to leave the UK is lower.
17. I agree with Mr Broachwalla that the insurmountable obstacles test and the reasonableness test is different. As to whether the Judge failed to provide any or any adequate reasons for the decision pursuant to EX.1.(a), I find that in this case, the Judge did not need to provide a separate analysis on EX.1.(a) because as the Judge correctly identified at paragraph 60 of the decision, EX.1.(a) did not apply at the date of application. This is because the appellant and his partner did not have a child at the date of application. Consequently, I find the Judge correctly directed themselves and the respondent has not established there was a material error on a point of law regarding the Judge’s application of EX.1.(a).
Second Limb: Best Interests Assessment
18. The second limb of Ground 2 is that the Judge failed to provide adequate reasons as to why the child’s best interests could not be met by remaining with both parents in India. It is argued that even though the child is a British citizen, this does not prevent her from leaving the UK and as she was less than 1 year of age and her family and private life revolved around her parents (Azimi-Moayed & Ors (decisions affecting children; onward appeals: Iran) [2013] UKUT 197 (IAC)). It was argued there is no reason why she could not adapt to life in India within a reasonable period of time. Ms Keerthi argued that no reasons have been given as to why the child could not live in India at paragraph 60 of the Judge’s decision.
19. Mr Broachwalla argued that the respondent’s own policy document “Family life (as a partner or parent) and exceptional circumstances Version 27” states that the respondent would not normally expect a qualifying child to leave the UK:
“The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.”
20. Mr Broachwalla argued that the Judge had taken into consideration all factors and points to paragraph 75 where the Judge stated that the child’s bests interests did not serve as a trump card.
21. I am persuaded by the submissions made by Ms Keerthi as to a material error of law. I find there were in effect two separate matters the Judge needed to turn their mind to. Firstly, the best interests assessment and secondly whether it was reasonable to expect the child to leave the UK.
22. In relation to the best interests assessment, I find the Judge did not provide any reasoning as to any of the relevant factors that the Judge took into consideration when concluding that it was in the child’s best interests to remain in the UK with her mother. I find there is an absence of consideration of the child’s age and that at that age, her family and private life revolved around her parents (Azimi-Moayed & Ors). I find that a composite part of the best interest assessment includes the child’s age and their ability to adapt to life in another country.
23. I find there is also an absence of any reasoning as to why the appellant’s wife’s evidence that she would not leave the UK was accepted even though the Judge found that both the appellant and his wife had the support of his family and they would not face discrimination on return to India. It was incumbent upon the Judge to explain how and why they reached the conclusion that it was in the child’s best interests to remain in the UK with her mother.
24. In relation to the reasonableness of the child leaving the UK, I find there is an absence of any reasoning of whether it is reasonable to expect a child to leave the UK. I find the Judge did not consider section 117B(6) of the Nationality, Immigration and Asylum Act 2002 which is a statutory requirement that must be applied when the Judge has to decide whether an immigration decision to remove someone from the UK would be in breach of the person’s Article 8 rights. Mr Broachwalla argued that section 117B is mentioned at paragraph 73. Whilst I accept that section 117B is mentioned, the only factors the Judge appeared to have considered at paragraph 73 are section 117B(2) and (3). Mr Broachwalla further argued the reasoning at paragraph 77 is the same analysis for section 117B(6). Having considered paragraph 77, I am not persuaded that the reasoning pertains to section 117B(6). I find the reasoning at paragraph 77 relates to the whether the appellant should be required to leave the UK and make an application for entry clearance from abroad (the ‘Chikwamba’ question).
25. I find that even if the respondent’s policy is that the starting point is the respondent would not normally expect a qualifying child to leave the UK, that did not absolve the Judge from the requirement to make a finding as to whether it was reasonable to expect a child to leave the UK. That assessment is mandated by statute and must be undertaken regardless of whether the child is actually expected to leave the UK. I find the Judge failed to provide reasons or any adequate reasons for their findings on material matters.
Third Limb: Return to Make an Entry Clearance application
26. It is argued in the third limb of Ground 2 that the Judge failed to adequately reason why, in the alternative, the appellant should not be expected to return to India and apply for entry clearance. It is argued that the respondent did not consider that this would be ‘unfair’ when considering the appellant’s breach of immigration rules while his status was precarious which itself should have been afforded little weight (Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58). It is argued that there has been no application of the guidance within Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30 that addressed the ‘Chikwamba’ question further. It is further argued that a full consideration of Article 8 must be undertaken even if it is believed an individual could theoretically, satisfy the requirements for entry clearance. Even if the appellant’s wife could not satisfy the financial requirements, it is argued that the Judge failed to provide adequate reasoning as to why temporary separation between the appellant, his wife and child would be disproportionate.
27. I am persuaded there was a material error of law in relation to the Judge’s reasoning at paragraph 77. I have already indicated that the Judge did consider section 117B(2) and (3). I find the Judge correctly identified that the appellant’s ability to speak English was a neutral factor. However, I find the Judge, whilst correctly identifying that the appellant’s wife’s reliance on benefits was a relevant factor, had failed to weigh the impact of the reliance on public funds, on the respondent’s side of the scales of proportionality.
28. Section 117B(4) states that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK unlawfully. That statement is not qualified in Part 5A. I find there is an absence of any consideration of that factor on the respondent’s side of the scales. I find this is a failure to take into consideration material matters in the section 117B assessment which is a material error of law given the importance of the section 117B assessment.
29. I find the Judge has failed to set out the “pros” and “cons” or any reasoned conclusions as to whether and how the countervailing factors outweigh the importance attached to the public interest in the maintenance of immigration control (section 117B(1)) when reaching the conclusion that it would be unfair for the appellant to return to India and apply for entry clearance. I am satisfied that the conclusions reached is not supported by any or any adequate reasons. As there was a legal duty on the Judge to provide a reasoned explanation for the conclusions reached, I consider that this failure constitutes an error of law. Given the importance of the balancing exercise in the outcome, I further consider that this error of law was material.
Remaking
30. The effect of paragraph 7 of the ‘Practice Statement Immigration And Asylum Chambers of the First Tier Tribunal And the Upper Tribunal’ regarding disposal of appeals in the UT is that where, following the grant of permission to appeal, the UT concludes that there has been an error of law, then the general principle is that the case will be retained within the UT for the remaking of the decision. The exceptions to this general principle is set out in paragraph 7.(2)(a) and (b) which I have considered carefully alongside the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
31. I find that on the facts of this case, neither party has been deprived of a fair hearing. In the appellant’s case, this is because his claim pursuant to Appendix FM was dismissed and there has been no material error of law found against that part of the decision. In the respondent’s case, the respondent has succeeded in demonstrating there was a material error of law only in respect of the Article 8 of the ECHR claim.
32. I find the Judge fell into material error for the reasons I have already set out above. I find that the nature and extent of any necessary fact finding in the remaking will be confined to one issue namely Article 8 of the ECHR. Within that, the UT will need to remake the best interest assessment, section 117B assessment and the proportionality balancing exercise. I find there is no suggestion that there has been any unfairness arising from the way the case had been dealt with below such that it requires the matter to be remitted to the FtT. I have concluded that this case should follow the general procedure and be remade in the UT and not be treated as an exception under paragraph 7.2(a) or (b).
Directions
33. I accept Mr Broachwalla’s submission that the findings on suitability are unchallenged and should be preserved. I also accept the submission that the appellant should have an opportunity to provide further evidence as to whether it is reasonable for the child to return to India. The directions I make are the following:
a) The appellant to file and serve any further evidence he seeks to rely on by no later than 4pm 15 May 2026.
b) The matter to be listed for a resumed hearing for the first available date after 5 June 2026.
Notice of Decision
c) The Secretary of State’s appeal is allowed.
d) The making of the FtT’s decision did involve the making of a material error on a point of law. The decision is set aside.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 April 2026