Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000148
First-tier Tribunal No: HU/58030/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

QIANQIANG NI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Ferguson of Counsel, instructed by Rayan Adams Solicitors.
For the Respondent: Mr Simpson, Senior Home Office Presenting Officer

Heard at Field House on 10 April 2026

DECISION AND REASONS
INTRODUCTION
1. The Appellant appeals against the Decision of First-Tier Tribunal Judge Rakhim, promulgated on 24 October 2025 (“the Decision”), dismissing the Appellant’s appeal against the SSHD’s decision dated 27 June 2024 (“RFRL”), refusing the Appellant’s Human Rights claim, dated 25 November 2022.
BACKGROUND
2. The Appellant is a Chinese national who entered the UK on 23 August 2009 with Tier 4 student leave until 2 December 2010. The Appellant was then granted further extensions of Tier 4 student leave until 10 October 2016.
3. On 7 November 2016 the Appellant made an application for leave to remain outside the immigration rules which was refused on 15 November 2017. On 18 January 2018 the Appellant was served with a RED.0001 notice.
4. On 25 November 2022 the Appellant made a Human Rights claim based upon his private and family life which was refused on 27 June 2024. It is against this decision that the Appellant appealed before FTIJ Rakhim.
RFRL
5. In the RFRL dated 27 June 2024, the SSHD refused the Appellant’s Human Rights claim in the following terms:
Family Life
You have told us that you have a family life in the UK with your partner Fumin Li and son Mingze Ni.
You are not eligible to apply as a partner, parent or child under Appendix FM because your partner is not British, settled or in the UK with refugee or HP (Humanitarian Protection) leave, and because you live as part of a family unit with your partner. We have therefore considered your claim under the private life route only.
Private Life
From the information you have provided, it is noted that you are a national of China and you entered the UK on 23 August 2009.
You have therefore lived in the UK for 13 years and it is not accepted you have lived continuously in the UK for at least 20 years.
[….]
It is not accepted that there would be very significant obstacles to your integration into China, if you were required to leave the UK because you have stated in your application that you speak Mandarin and English which is widely spoken in China and this will help you to adapt to life in China, socially and culturally. You have also stated in your application form that you have your elder sister remaining in China you have provided no evidence that your family and friends in China would not be able to assist you or accommodate you on your return to China. Additionally, you resided in China up to the age of 16, which includes your childhood and formative years. It is accepted that you will have retained knowledge of the life, language and culture, and would not face significant obstacles to reintegrating into life in China once more. Furthermore, you are of an economically active age and will be better able to sustain yourself, especially since you will have the right to work. Any financial assistance you currently receive in the UK can continue upon your return to China. As a result of this, you fail to meet the requirements for an adult under Appendix Private Life of the Immigration Rules.
[….]
Article 8
You have told us it will be difficult to relocate to China after 13 years of residing in the U.K. This is not believed to be exceptional circumstances to stop you returning to China as you have not provided any evidence to support your claim that it would be difficult or impossible for you to integrate and establish a private life outside the UK. Consideration is given to the fact that the UK will have been a new environment for you when you arrived here. It is therefore reasonable to think that under these circumstances, that you have demonstrated that you would have the requisite skills to be able to re-establish yourself in China. Whilst you may believe that circumstances in China are less favourable to you than the possibility of being permitted to reside in the UK, this is a decisive factor. Additionally, it is noted that the voluntary returns service is able to support individuals in finding accommodation and employment upon returning to their country of nationality.
It is noted that at the time your application was submitted that your partner was pregnant with your child and you stated that you and your partner could not travel due to your partner being pregnant. However, your child has since been born and you currently have no valid leave to remain in the U.K as well as your partner. There has been no evidence provided as to why you and your family cannot enjoy your private life in China as you will both have access to the facilities need to provide and support each other and your child.
Furthermore, you are a Chinese national of working age with the full right to live and work in China without restriction and would therefore be able to find accommodation and employment there to support yourself, your partner and your child. Additionally, any financial assistance you receive in the UK can continue upon your return to China. You have not demonstrated that you have a lack of employability that would result in you facing conditions that are disproportionately worse compared to other citizens of China.
It is generally accepted that the best interests of children whose parents are facing removal from the UK are best served by the children returning with their parent to China and exercising their rights as citizens of China. It is therefore decided that it is both reasonable and Section 55 compliant for your child to or return to China whilst you apply for the correct entry clearance.
[….]
It is considered to be reasonable to expect you to return to China and continue to enjoy your family life in China. There is little evidence to suggest that you could not assist you partner and your child in readjusting to life in China or that the extended family you have there would be unable to assist you, if necessary, upon your return. Whilst this may involve a degree of disruption to your private life, this is considered to be proportionate to the legitimate aim of maintaining effective immigration control and is in accordance with our section 55 duties.
In addition, it should be noted that, a mere wish, desire or preference to live in the UK does not amount to an exceptional circumstance. The assessment of whether there are "exceptional circumstances" is a more stringent assessment than whether it would be "reasonable to expect" for someone to return to their home country. It is noted that obtaining employment and accommodation in another country may be an inconvenience, but a degree of inconvenience does not amount to an exceptional circumstance. It is apparent that someone who currently resides in the UK may prefer not to uproot and relocate, however the ECHR does not oblige the UK to accept the choice of someone as to which country they would simply prefer to reside in.
Discretion should be used sparingly where there are factors that warrant a grant of leave despite the requirements of the Immigration Rules or specific policies having not been met. Factors raised in their application must mean it would not be proportionate to expect the person to remain outside of the UK or to leave the UK. The Immigration Rules have been written with clear objectives and applicants are expected to make an application for leave to enter or remain in the UK on an appropriate route under the relevant Immigration Rules and meet the requirements of the category under which they are applying. Considerations of whether to grant Leave Outside the Rules should not undermine the objectives of the rules or create a parallel regime for those who do not meet them.
Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations. An example might be where an applicant or relevant family member has experienced personal tragedy and there is a specific event to take place or action to be taken in the UK as a result, but which does not in itself render refusal an ECHR breach.
After carefully considering your representations against the published guidance on granting leave outside the Immigration Rules, it is accepted that your circumstances are not considered sufficiently compelling or compassionate to either use discretion to allow you to remain in the United Kingdom without the necessary entry clearance or to grant you leave outside the Rules.
Decision of First-tier Tribunal Judge Rakhim dated 24 October 2025
6. On 24 October 2025 the Appellant’s appeal against the RFRL came before First-tier Tribunal Judge Rakhim. In so doing, the Tribunal heard oral evidence from the Appellant, his partner Fumin Li, and father Minghua Ni.
7. At paragraph [10] of the Decision, the FTIJ noted that the Article 8 issues in dispute included whether there were very significant obstacles to the Appellant’s integration, for the purposes of immigration rule PL 5.1 of Appendix Private Life. At [11], the FTIJ records the Appellant’s confirmation that family life would not be pursued as an issue.
8. The FTIJ sets out the legal framework for his consideration of Article 8 at paragraphs [12] - [13], before making findings of fact at paragraphs [14] – [36], in respect of the “very significant obstacles to integration” test. Given the issues raised in the grounds, I set out the FTIJ’s reasoning in some detail, which I summarise as follows:
• [14] The FTIJ summarises Sales LJ’s guidance in respect of “integration” found in Kamara [2016] EWCA Civ 813 at [14].
• [15] The FTIJ finds the Appellant “highly qualified” and set out his various academic achievements, including a 2016 master’s degree in marketing.
• [16] The FTIJ finds none of the witnesses to be credible. In so doing the FTIJ found:
◦ That their evidence was tailored to support the Appellant’s case.
◦ That the Appellant’s evidence was inconsistent with the other witnesses.
◦ That the partner (“P”) contradicted both the Appellant and his father.
◦ That the father was hesitant when asked if the Appellant had requested financial support on return.
• [17] The FTIJ finds that the Appellant is not reliant upon his father for financial support. In so doing the FTIJ found:
◦ That there were significant inconsistencies regarding financial matters.
◦ That the Appellant said that he was not involved in managing finances because P handled the money for cultural reasons and his role was to look after the children.
◦ However, because P had no leave or employment, it was unclear what role P would play in the household either financially or practically.
• [18] The FTIJ records the Appellant as saying that his father gave him £800 pm.
◦ That P stated that the rent was £500pm plus £150-£180 for additional bills.
◦ That the father stated in his witness statement that he gave the Appellant £800pm for living expenses.
◦ However, in oral evidence, the father claimed that the rent was £1200 pm and when challenged, claimed that he had forgotten the figure, despite paying the rent for 5 years.
◦ The FTIJ finds the father’s explanation incredible, given how long he allegedly paid the rent.
• [19] The FTIJ finds it more likely than not that the Appellant has been working illegally, as this would explain the inconsistent evidence in respect of rent and financial support and that this view would also be consistent with:
▪ The father’s lack of knowledge.
▪ The father operating a construction and decorating business.
▪ The 2023 birth certificate for C1 identifying the Appellant’s occupation as a “construction worker”.
▪ The 2025 birth certificate for C2 identifying the Appellant’s occupation as a “builder”.
◦ The FTIJ notes the Appellant’s explanation that he worked before his visa expired but finds this inconsistent with the birth certificates.
◦ That “these factors support the finding that the appellant is currently engaged in employment within his father’s construction business without the required permission to work.”
• [20] The FTIJ notes P’s evidence that she does not work and relies on the father for money, but notes that the father’s evidence of support is inconsistent.
◦ The FTIJ finds this inconsistency undermines the credibility of the evidence.
◦ And finds that this reinforces his finding that the Appellant is working illegally.
• [21] The FTIJ finds that the Appellant would have access to financial support from his father on return.
◦ The FTIJ notes that the Appellant said that his father declined to support him on return.
◦ That P initially said that she did not think that the father would provide support, before changing her evidence and stating the Appellant asked 1 – 2 times.
◦ That in contrast to this evidence, the father initially hesitated when asked about support before stating that the Appellant had not asked him.
• [22] The FTIJ finds that the Appellant was untruthful about his father refusing to provide financial support on return, because the father denied that he was asked.
◦ That the partner’s evidence was inconsistent with the father’s
◦ The FTIJ finds that given that the father owns a construction business and claims to currently be providing support, there is no credible reason why he could not do so on return.
• [23] The FTIJ finds that the parents are not dependent upon the Appellant despite his claim that removal would leave them in difficulty because he is the sole caretaker.
◦ The FTIJ finds little detail of any assistance.
◦ That the Appellant says he only visits twice a week for 2 hours.
◦ That there was no medical evidence of the claimed diabetes.
• [24] The FTIJ notes P’s claim that the parents are senior citizens but finds:
◦ The father is only 57.
◦ He operates a construction business
◦ That there is no evidence of any health conditions requiring assistance.
◦ That the claimed dependency has been exaggerated.
• [25] The FTIJ notes the Appellant’s claim that there are no other family members to assist his parents but finds:
◦ The Appellant has a sister in the UK.
◦ That despite the claim that she has not visited for 2 years, it is unclear why.
◦ That there was no evidence that contact had ceased altogether.
◦ That there was no evidence that she would be unwilling to assist.
• [26] The FTIJ finds that the Appellant is not his parents’ carer and that there are no more than emotional ties.
◦ The FTIJ rejects the submission that removal would leave the parents without adequate support.
• [27] The FTIJ notes that the Appellant confirmed that he has a sister, grandmother and grandfather in China:
◦ That his parents are in contact with the grandparents.
◦ That the Appellant is in contact with the sister.
◦ That the sister’s husband works in construction.
◦ That although the Appellant claims not to have contact with other relatives in China, “there is contact, and his family in China would also be able to provide emotional and financial assistance.”
◦ That these factors suggest that the Appellant would have the capacity to reintegrate into life in China.
• [28] The FTIJ finds that P has family in China and that she confirmed that she has ongoing contact.
• [29] The FTIJ finds that the Appellant retains family ties to China, including with his sister, with whom he resided before entering the UK on 23 August 2009.
◦ That P has ongoing support from her family in China and is in frequent contact.
◦ That they would have access to support from the Appellant’s and the partner’s families on return,
◦ And that this would give them a stable network to assist with integration.
• [30] The FTIJ finds that the Appellant previously worked in construction, has numerous qualifications and would be able to secure employment on return.
• [31] The FTIJ finds that P has no leave to remain, has been in the UK since 2007, has no outstanding applications, and that,
◦ The Appellant’s 2 children born in 2023 and 2025, are Chinese nationals.
◦ That there is no evidence that the children have any vulnerabilities or special needs.
• [32] The FTIJ finds:
◦ The Appellant and P and no status in the UK.
◦ That the is no evidence of very significant obstacles to integration.
◦ That they would have accommodation and support on return from the Appellant’s and P’s family.
◦ That they would return as a single-family unit.
◦ That the Appellant can work on return.
◦ That medical and educational facilities are available on return.
• [33] The FTIJ finds that the Appellant speaks Mandarin and that whilst he has not retained full familiarity with all aspects of Chinese culture,
◦ This would not prevent his reintegration
◦ The Appellant lived in China for 16 years
◦ That there is no evidence that the Appellant has severed his deep cultural and heritage ties to China.
◦ That the Appellant retains his cultural and linguistic capacity.
• [34] The FTIJ finds that the Appellant is still in contact with his sister in China,
◦ The sister can accommodate or assist the Appellant on return.
◦ Whilst contact with the sister is not regular, given the Appellant’s general lack of credibility, this demonstrates that family connections in China would continue.
◦ The Appellant is healthy, of working age, educated and has experience in construction.
◦ The Appellant can maintain himself on return and his parents can provide financial support.
• [35] The FTIJ finds no very significant obstacles to integration on return.
◦ That he spent his formative years in China.
◦ That he speaks the language.
◦ That he has family there.
◦ That he has the skills and qualifications to rebuild his life there.
• [36] The FTIJ finds “that the appellant will be enough of an insider to understand how life continues in China and will have the capacity to build relationships within a reasonable period.”
◦ That whilst he will face challenges, he has work experience and family support.
◦ That there are no very significant obstacles to the Appellant’s integration on return.
9. Having found that the immigration rules are not met, the FTIJ then makes findings of fact at paragraphs [37] – [43] in respect of Article 8 outside the immigration rules, which I summarise as follows:
• [37] The FTIJ considers the best interests of C1 and C2, born in 2023 and 2025 and finds,
◦ That they are both under 3 years old and are Chinese nationals.
◦ That their best interests are to be with both parents.
◦ That there is no evidence of hardship on return.
◦ That the Appellant and P and will provide stability.
◦ That they will have the support of extended family.
◦ That they can retain contact with family in the UK through modern communication and visits.
• [38] The FTIJ finds that the Appellant can speak English, is financially independent and has numerous qualifications but these carry neutral weight in his proportionality assessment.
• [39] That the Appellant entered the UK aged 17, has had no leave since 2016, had taken no steps to regularise his stay, despite receiving a RED notice in 2018.
◦ The FTIJ rejects the Appellant’s submission that the SSHD delayed taking enforcement action.
• [40] The FTIJ finds that there was no significant delay in the SSHD serving her RFRL, that this does not affect the proportionality assessment, and that the Appellant only submitted his application in November 2022 after P became pregnant.
• [41] The FTIJ finds that the Appellant’s and P’s relationship began in 2015 and that the Appellant has had no leave since 2016, whilst P has had no leave since 2007.
◦ The FTIJ finds that the relationship was developed whilst the couple were in the UK unlawfully and that as such it carries little weight.
• [42] The FTIJ finds that the Appellant has shown a persistent disregard for immigration law and that substantial weight is attached to the public interest in immigration control.
• [43] The FTIJ confirms that he has taken into account the public interest factors under 117B and finds that removal would not be disproportionate.
Grant of PTA and Grounds of Appeal
10. On 5 February 2026, Upper Tribunal Judge Bulpitt granted the Appellant permission to appeal the Decision of FTIJ Rakhim without restriction. In so doing, Judge Bulpitt observed that “it is arguable that it was procedurally unfair for the Judge to conclude that the appellant was working illegally for his father without that suggestion being put to the appellant or his father and without it being raised in the respondent’s decision or review.” However, in relation to the remaining grounds, he observed that they “do not appear to have much merit but they are difficult to disentangle from ground one.”
11. In undated and unsigned grounds of appeal, the Appellant advanced the following five grounds of appeal:
Ground 1 – Procedural Unfairness – Unheralded Finding of Illegal Working
5. The Appellant submits that the First-tier Tribunal (FTT) Judge Rakhim acted with procedural unfairness by making a specific, adverse finding that the Appellant was "working illegally" (at [19-20] and [38]). This allegation was not part of the Respondent’s (Home Office) case, was not contained in the refusal letter, and was not put to the Appellant during the hearing.
6. In refusing permission, Judge Seelhoff stated at [3] that this finding "naturally flows" from live issues regarding the Appellant's financial circumstances. The Appellant respectfully submits that this is a misdirection in law. There is a fundamental legal distinction between a judge finding a witness "not credible" regarding their finances and a judge making a specific finding of misconduct (unauthorised employment).
7. The Judge’s finding was based on inferences drawn from the Appellant’s children’s birth certificates. Had this concern been raised during the hearing, the Appellant would have had the opportunity to explain the entries on those documents. By failing to raise this, the Judge deprived the Appellant of the right to a fair hearing on a matter that heavily influenced the Tribunal’s view of his character and his Article 8 proportionality balance.
8. The Appellant relies on SH (Afghanistan) [2011] EWCA Civ 1284, which establishes that where a Tribunal is minded to make an adverse finding on a point not raised by the parties, it is a requirement of natural justice to give the parties an opportunity to address it. Judge Seelhoff’s "natural flow" reasoning cannot override this core constitutional right to a fair hearing. This is a material error of law.
Ground 2: Misdirection in Law and Use of Irrelevant Considerations under Paragraph PL 5.1
9. In determining whether there would be very significant obstacles to integration under Paragraph PL 5.1, the Judge materially misdirected himself by allowing findings concerning the Appellant’s alleged unlawful employment and financial conduct in the United Kingdom to substitute for the required evaluative assessment of integration in the country of return (China).
10. Whilst credibility findings may, in principle, inform an assessment of future circumstances, the Judge erred by treating alleged misconduct in the UK as determinative of the Appellant’s ability to integrate in China. The proper focus of the PL 5.1 test is a forward-looking, holistic assessment of whether the Appellant would be able to reintegrate into the social, cultural, and economic life of the country of return, not an assessment of moral blameworthiness or compliance with immigration control in the UK.
11. The Judge’s reasoning demonstrates that the finding of alleged illegal working was relied upon as a proxy for employability, resilience, and access to support on return, rather than conducting a structured evaluation of integration in China based on the Appellant’s personal history, length of residence abroad, and current circumstances. This amounts to a misapplication of the test under Paragraph PL 5.1 and a reliance on irrelevant considerations.
12. The Judge therefore failed to apply the correct legal approach as articulated in Kamara v SSHD [2016] EWCA Civ 813, which requires a broad evaluative judgment directed to whether the individual would be enough of an insider in the society of return to have a reasonable opportunity to rebuild their private life. This error was material to the outcome.
Ground 3 – Irrational and Inconsistent Findings on Financial Support
13. Having rejected the credibility of the Appellant, his partner and his father (paragraphs 16–20), the Judge nonetheless found that the Appellant’s father would provide him with accommodation and financial assistance on return (paragraphs 21–22 and 32). This is inconsistent and irrational. Once credibility was rejected, there was no evidential basis for a positive finding of financial support.
14. The inconsistency materially affected the conclusion on whether the Appellant could reintegrate and on the proportionality balance under Article 8.
Ground 4 - Failure to Apply the PL 5.1 Test with Adequate Reasons (Kamara Error)
15. Although the Judge cited the correct legal framework, the reasoning lacks engagement with the Appellant’s specific circumstances. The decision omits analysis of his 16-year residence in the UK, his arrival as a minor, linguistic and cultural erosion, his formative years spent in the UK, and the limited evidence of family or social ties in China. Instead, the Judge relied on generic statements that the Appellant would ‘cope’ or ‘find work’.
16. Such cursory reasoning fails to conduct the holistic evaluative exercise required by Kamara and subsequent case law, amounting to an error of law.
Ground 5 – Section 55 Children’s Best Interests – Inadequate Reasoning
17. The Appellant challenges the First-tier Tribunal’s (FTT) summary dismissal of the Section 55 duty. In refusing permission, Judge Seelhoff asserted at [9] that because the children are under the age of 3, their best interests do not extend "significantly" beyond remaining with their parents and that relocation would cause no "significant hardship.
18. The Appellant submits that this represents an oversimplified and legally flawed approach to the "best interests" assessment required by ZH (Tanzania) [2011] UKSC 4. The age of a child does not diminish the Tribunal's duty to conduct a fact-sensitive, individualised assessment.
19. The Judge’s reasoning failed to engage with the specific evidence provided regarding:
• The practicalities of the children’s integration into a society (China) they have never known.
• The loss of the support network they currently enjoy in the UK via their extended family (specifically the grandfather).
• The cumulative impact of the Appellant’s father’s found ability to support them financially versus the actual reality of their upbringing in the UK.
20. By reducing the Section 55 duty to a mere observation of the children's ages, the FTT failed to treat the best interests of the children as a "primary consideration." A finding that there is "no significant hardship" is not a substitute for a positive assessment of what is actually in the children's best interests. This is a material error of law that warrants the granting of permission.
Conclusion
21. The cumulative effect of the errors identified above is that the decision is unsafe. The Judge misdirected himself on material matters, relied on irrelevant considerations, and failed to provide adequate reasons.
12. There was no Rule 24 reply.
13. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
ERROR OF LAW HEARING
14. At the outset of the hearing, I ensured that the parties had before them a stitched Upper Tribunal hearing bundle (“CB”) consisting of 148 pages and an undated ASA, settled by Robert Parkin of Counsel, uploaded onto Ce-File on 23 March 2026.
15. As a preliminary matter, I asked Mr Simpson if he accepted as contended in the grounds, that it had not been put to the Appellant that he had been working illegally in the UK. In reply, Mr Simpson conceded that illegal employment had not been put to the Appellant at the hearing nor had any submission been before the FTT in respect of the same.
DISCUSSION
16. In essence, grounds 1, 2 and 3 are interlinked because ground 1 argues that it was procedurally unfair for the FTIJ to find that the Appellant had been working illegally in the UK (when this was not part of the SSHD’s case before the FTT and when it was not put to him at the hearing); ground 2 argues that this unlawful finding poisons the entire consideration of whether there are very significant obstacles to integration under immigration rule PL 5.1 of Appendix Private Life; and ground 3 challenges a discrete part of the reasoning that underpins the FTIJ’s finding that the Appellant had been working illegally in the UK.
17. In JK (Conduct of Hearing) Côte d'Ivoire [2004] UKIAT 00061, the Tribunal held that,
“43 ... If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case.”
18. This warning against judges developing their own hostile case theory was further underscored in XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro [2005] UKIAT 00093,
“35... the Adjudicator ... was developing his own theory of the case. This was very different from the Secretary of State's refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State's different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.”
19. What can be distilled from these authorities is that fairness requires issues to be put to an appellant which are likely to be found damaging to their case. However, Judges should also be alert to the possibility of giving the appearance of bias should they develop a hostile case theory in adversarial proceedings, particularly when the Respondent is challenging the appellant’s case on a different basis.
20. I find it clear that neither the RFRL or Review dated 14 March 2025 alleged that the Appellant had been working illegally in the UK, indeed in the Review, the position taken by the SSHD at [13] was that “it is also accepted that any financial assistance the A currently receives from his parents in the UK can continue upon his return to China.” Furthermore, as conceded by Mr Simpson, illegal employment was not part of the SSHD’s case before the FTT.
21. As such, I find that the FTIJ developed his own hostile case theory without giving any indication of the same to the parties at the hearing.
22. At the error of law hearing, I expressed some concern as to the materiality of this error. At first blush it appeared to me that the grounds of appeal disclosed only two challenges to the credibility assessment that underpinned the conclusion that the Appellant was working illegally. As such, I posited that in the event of the challenges to the credibility assessment proving unmeritorious, whether any rational Tribunal would inevitably have reached the same decision, regardless of the procedurally irregular conclusion regarding illegal work.
23. In MM (unfairness; E & R) Sudan [2014] UKUT 105 the Presidential panel set out the correct approach for Tribunals when considering issues of procedural fairness by reference to the case of R – v – Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344,
“15. [….] In Cotton, the issue, in a nutshell, was whether the decision of the Chief Constable to dismiss a police officer was vitiated by procedural unfairness on account of inadequate disclosure to the officer of the case against him.
We distil the following principles from Cotton:
(i) The defect, or impropriety, must be procedural in nature. Cases of this kind are not concerned with the merits of the decision under review or appeal. Rather, the superior court’s enquiry focuses on the process, or procedure, whereby the impugned decision was reached.
(ii) It is doctrinally incorrect to adopt the two-stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.
iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
(iv) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred.
16. These last two propositions are expressed with admirable clarity in the judgment of Simon Brown J, which was under appeal (at page 13B/D):
“It is sufficient if an Applicant can establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different.”
The complaint in Cotton was that certain information, damaging to the police officer’s case, had not been disclosed to him. Simon Brown J concluded that even if this disclosure had taken place
“… there would have been no real, no sensible, no substantial chance of any further observation on the Applicant’s part in any way altering the final decision in his case.”
The Court of Appeal upheld both his conclusion and the governing principle which he formulated: see the uncritical rehearsal of the Applicant’s argument in the judgment of Slade LJ (at pages 10 – 11) and the endorsement of the conclusion of Simon Brown J by all three members of the Court of Appeal. Slade LJ espoused the following formulation of the governing principle:
“Natural justice is not concerned with the observance of technicalities, but with matters of substance.”
24. As can be distilled from the authorities considered in MM, if the procedural irregularity is not material to a decision, it cannot be regarded as unfair.
25. In this regard, I am mindful of the materiality test enunciated by Elisabeth Laing LJ at [43] of ASO (Iraq) [2023] EWCA Civ 1282, where the correct question to be asked by the Tribunal was whether,
“'it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion'. If that is clear, then any error of law would be immaterial, and the appeal should fail.”
26. However, I find that regardless of the merits of the discrete challenges to the underlying credibility assessment, the procedural irregularity was unfair.
27. The reason for this is because by developing a hostile case theory, in addition to that advanced by the SSHD, the FTIJ gave the impression of bias. As enunciated at [103] of Magill v Porter [2001] UKHL 67, “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
28. Accordingly, in circumstances where the FTIJ did develop a hostile case theory in addition to the SSHD’s case, I find that a fair-minded and informed observer would conclude that there is a real possibility that the FTIJ was biased.
29. In reaching this conclusion, I make clear that I do not find actual bias. The “real possibility” of bias is enough. Accordingly, I find that this unfairness infected the FTIJ’s approach to the entirety of the evidence. I therefore cannot be satisfied that any rational Tribunal would inevitably have reached the same decision.
30. In such circumstances, it is unnecessary for me to go on and consider the remainder of the grounds.
CONCLUSION ON ERROR OF LAW
31. I find that ground 1 discloses a material error of law such that the Decision of First-tier Tribunal Judge Rakhim must be set aside in its entirety with no findings preserved.
DISPOSAL
32. Having regard to the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), in the light of my conclusion that the First-tier hearing was vitiated by procedural unfairness, I find it appropriate to remit this appeal to the First-tier Tribunal to be heard de novo.
NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Rakhim involved the making of an error of law.
2. I set aside the Decision of Judge Rakhim in its entirety, with no findings of fact preserved.
1. I remit this appeal to the First-tier Tribunal to be heard de novo by any Judge other than First-tier Tribunal Judge Rakhim.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 May 2026