Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No.: UI-2026-000078

First-tier Tribunal No: PA/54119/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

26th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

AH (BANGLADESH)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person.
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 3 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is my judgment on the question of how the decision on the appellant’s appeal on Article 8 ECHR grounds should be remade, the appellant having been partially successful in his Error of Law challenge to the adverse decision of First-tier Tribunal Judge Smyth promulgated on 18 October 2025 (“the Decision”). By the Decision, Judge Smyth dismissed the appellant’s appeal on all grounds raised.
2. The findings on asylum, humanitarian protection, and Article 3 ECHR have been upheld, but the decision on the appellant’s appeal on human rights grounds under Article 8 ECHR has been set aside, for the reasons given in the decision of Deputy Upper Tribunal Judge Hoshi promulgated on 11 May 2026, following an Error of Law hearing in the Upper Tribunal on 7 April 2026.
3. As set out in the Error of Law decision, Judge Smyth materially erred in law in the proportionality assessment, as it was conducted on the incorrect premise that the appellant had always been in the UK unlawfully, thereby leading the Judge to give little weight to the appellant’s relationship with Ms MB, applying section 117B(4)(b) of the 2002 Act.
The Evidence Filed for the Resumed Hearing
4. Pursuant to the directions made in the Error of Law decision, the appellant has filed a composite bundle containing up-to-date evidence of his circumstances and those of his partner, with whom he had an Islamic marriage on 1 March 2024, having met and begun a relationship with her on 1 June 2023. As shown by the birth certificate in the composite bundle, on 26 December 2025 Ms MB gave birth to a daughter.
The Resumed Hearing
5. The appellant and Ms MB attended the resumed hearing with their baby. The appellant gave his evidence while MB waited outside with their baby, and then they swapped places when Ms MB was giving evidence.
6. The appellant adopted as his evidence in chief his witness statement in the composite bundle dated 25 May 2026. In the statement, he said that he had a genuine and subsisting relationship with his wife and daughter, who was a British citizen. His wife was a university student, and he cared for their daughter daily while she attended university. He helped with feeding, changing, supervision, appointments and all parental responsibilities. He supported his family financially and contributed towards rent, food, baby supplies and household expenses. His daughter was emotionally attached to him, and he had been involved in her upbringing since birth. It would be extremely difficult for his wife and daughter if he was removed from the UK.
7. In his oral evidence, the appellant said that he had been working for the past 2-and-a-half years. He was currently working 5 days a week and earning £2,000 a month. His partner had relatives in Bangladesh on her dad’s side, but they were not close. He was not sure whether she had relatives there on her mum’s side. Her immediate family were living in Cardiff. His father had passed away 3 years ago. He was not close to his mother. He had siblings in Bangladesh, but they had their own lives. He was last in contact with his mother last week. His partner knew that he was claiming asylum when they began their relationship. That was why they had got close.
8. Ms MB’s witness statement dated 25 May 2026 was to the same effect. It would be very difficult for her to continue her studies and care for their daughter without the appellant’s support.
9. In her oral evidence, Ms MB confirmed that their daughter had no health issues. She spoke Bengali Sylheti, but English was her first language. Although she had been born in Bangladesh, she had come to the UK when she was aged 6 months. She was currently studying at Southbank University. She was on a 3-year Accounting Finance course. She was hoping to obtain graduate level employment after completing the course, but she had not investigated whether she would be able to find employment which would give her an income which matched or exceeded the minimum income threshold.
10. She had gone back to Bangladesh for a holiday when she was aged 13, but she had not been back to Bangladesh since. She had an uncle in Bangladesh, but she was not in touch with him. It would not ideal for her to go to Bangladesh to settle there. It would be hard for the appellant to find an adequately paid job in Bangladesh. He was currently doing unskilled work for a catering company in which he was earning £2,500 per month after tax. He would not be able to obtain this type of job in Bangladesh.
11. They were currently living in temporary accommodation provided by the Council. She was getting Housing Benefit of £92 a week, and she was receiving Child Benefit. The Housing Benefit went towards the rent. The balance was being paid by the appellant’s earnings.
Discussion and Findings
12. The appellant’s material history is that he entered the UK as a student on 19 October 2021, and he claimed asylum on 30 May 2022. He said that he had a well-founded fear of persecution upon return to Bangladesh as a member of the BNP. The appellant’s asylum claim was refused for reasons given in the reasons for refusal letter (RFRL) dated 13 December 2023. While the appellant’s asylum appeal was pending, he entered into an Islamic marriage with Ms MB. The appellant raised his relationship with Ms MB as an additional ground as to why his appeal should be allowed shortly before the hearing in the First-tier Tribunal. In a letter dated 10 September 2025, the appellant’s solicitors submitted a Statement of Additional Grounds under section 120 of the 2002 Act. The respondent was invited to consider the appellant’s new circumstances, which were his relationship to a British citizen with whom he was shortly expecting a British citizen child. They submitted that relocating to Bangladesh would be unreasonable for Ms MB, due to the considerable cultural, social and economic challenges she would face. Alternatively, requiring the appellant to go back on his own would gravely disrupt his family life and cause significant hardship to all his family members.
13. The significance of the timing of the raising of the new matter is that Ms MB does not meet the definition of a Partner contained in Appendix FM. She is not a person who has been in a relationship akin to marriage or civil partnership with the applicant for at least 2 years prior to the date of application. For that reason, the appellant cannot avail himself of the exemption contained in EX.1 (b).
14. If EX.1(b) applied, the appellant would not need to establish that his prospective removal was disproportionate and/or unjustifiably harsh.
15. It was rightly accepted before the First-tier Tribunal that EX.1(b) did not apply, and the way the case was put was that it was unreasonable to expect Ms MB to relocate to Bangladesh, as it was a country where she had no ties or cultural or social connections, and where the appellant himself faced persecution.
16. Turning to the merits of the appellant’s claim outside the Rules, I answer Questions 1 and 2 of the Razgar in the appellant’s favour with regard to the establishment of family and private life in the UK. It is not disputed that Questions 3 and 4 of the Razgar test must be answered in favour of the respondent. On the crucial issue of proportionality, none of the public interest considerations arising under section 117B of the 2002 Act militate against the proportionality of the appellant’s removal.
17. With regard to private life, section 117(5) provides that little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. There is no corresponding stipulation with respect to a relationship formed with a qualifying partner when the person’s immigration status is precarious. But it is a highly material consideration is that the appellant does not qualify for leave to remain under the Rules. This is not just because the relationship was not formed at least 2 years before the date of application, but also because the couple are a long way off meeting the minimum income requirement.
18. Another highly material consideration is that Ms MB was aware of the appellant’s precarious immigration status when she embarked upon a relationship with him. So, she has never had a legitimate expectation that she would be able to carry on family life with the appellant on a permanent basis in the UK unless he succeeded in his asylum appeal, or the appellant was able to meet all the relevant requirements of Appendix FM, including the minimum income requirement.
19. In the light of the preserved findings made by the First-tier Tribunal, not only does the appellant not face a real risk of persecution upon return to Bangladesh, but there are also not very significant obstacles to his reintegration into life and society in Bangladesh. Accordingly, the main potential obstacle to Ms MB relocating to Bangladesh to settle there with the appellant has fallen away.
20. Also, contrary to the case put forward in the appeal skeleton argument (ASA) before the First-tier Tribunal, Ms MB has ties to Bangladesh. She was born in Bangladesh, and although I accept that she came to the UK as a baby when 6 months old, she was brought up here within a Bangladeshi diaspora, and hence she can communicate in Bengali Sylheti and she is likely to have some familiarity with the culture and society there which she will have acquired from her Bangladeshi parents, and from growing up within a Bangladeshi diaspora. Given her background, it is unlikely that Ms MB will face significant difficulties in adjusting to life in Bangladesh with the support of the appellant.
21. The best interests of their child are a primary consideration in the proportionality assessment. Section 117B (6) of the 2002 Act provides that, in the case of a person who is not liable to deportation, the public interest does not require the person’s removal where: (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. The corresponding provision in EX.1(a) is that, taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.
22. I am satisfied that the appellant has a genuine and subsisting parental relationship with their child, but it is reasonable to expect the child to leave the UK with both her parents to settle in Bangladesh, where all members of the family can enjoy to the full the rights and privileges attaching to Bangladeshi citizenship. Ms MB is a Bangladeshi citizen by birth, and she has not forfeited her Bangladeshi citizenship by her acquisition of British citizenship. While the child is a British citizen through her mother, there is no reason to suppose that she cannot also become a Bangladeshi citizen, if she is not one already through her father. Given her very young age, it is overwhelmingly in the child’s best interests to remain in the same household with her parents, wherever they happen to be, and as it is reasonable for both her parents to go to Bangladesh, it is in her best interests and reasonable for the child to go with both her parents to Bangladesh. Accordingly, section 117B(6) does not operate on the particular facts of this case to negate or reduce the public interest in the appellant’s removal.
23. In conclusion, having considered the evidence in the round, I find that the appellant has not made out a case that requiring him to return to Bangladesh will have unjustifiably harsh consequences for him or for his British citizen partner, or that it would be contrary to the best interests of their British citizen child.
24. The decision appealed against strikes a fair balance between, on the one hand, the rights and interests of the appellant, his British citizen partner and their British citizen child, and, on the other hand, the wider interests of society. It is proportionate to the legitimate public end sought to be achieved, which is the protection of the country’s economic well-being and the maintenance of firm and effective immigration controls.
Notice of Decision
The decision of the First-tier Tribunal contained a material error of law, and accordingly the decision is set aside and the following decision is substituted:
The appellant’s appeal is dismissed on all grounds raised.
Anonymity
The First-tier Tribunal made an anonymity direction, and an anonymity direction was also made by Deputy Upper Tribunal Judge Hoshi. In the circumstances, I consider that it is appropriate for the appellant to continue to enjoy anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 August 2026