Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000182
First-tier Tribunal No: HU/57733/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of September 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GILANI AHMED DHIRIWALA
(ANONYMITY ORDER NOT MADE)
Respondent

Representation:
For the Appellant: Mrs Arif, Senior Home Office Presenting Officer
For the Respondent: Mr Dhiriwala in person

Heard at Birmingham Civil Justice Centre on 11 September 2026

DECISION AND REASONS

1. To avoid confusion, in the decision which follows I refer to the respondent (the appellant before the First-Tier Tribunal) as Mr Dhiriwala, and to the appellant (the respondent before the First-Tier Tribunal) as SSHD.
Background
2. SSHD appeals, with the permission of the Deputy Chamber President, the decision of the First-Tier Tribunal (“the FTTJ”) promulgated on 3 July 2025 (the same day as the hearing), to allow Mr Dhiriwala’s appeal against SSHD’s decision of 25 June 2024 to refuse his application for permission to stay based on long residence made on 21 March 2023.
3. The FTTJ recorded that the issues which the parties agreed she had to resolve were firstly whether Mr Dhiriwala met the private life rules under the 20-year residence conditions (PL 5.1 (a) and (b)) and secondly whether removing him would be a breach of his Article 8 rights [9]. She recorded that the refusal was on the basis that there was not sufficient evidence to show that Mr Dhiriwala had lived in the UK for 20 years’ continuously [16].
4. The FTTJ gave an oral indication that the appeal was allowed at the end of the hearing but said that her full written decision was reserved [7].
5. In her written decision, she explained that she found both Mr Dhiriwala and his witness to be witnesses of truth who did not seek to mislead the tribunal [17]. She accepted the evidence of both, and found that Mr Dhiriwala had been in the UK for over 20 years (the evidence was that he had entered on 2 February 2003 [18]) and that he had not left the UK and on that basis he had met the requirements of immigration rules [26]. Although she referred to TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109 at [34] for the proposition that satisfying the rules was positively determinative of a person’s Article 8 appeal, she continued to consider the requirements of section 117B of the 2002 Act, referring to Mr Dhiriwala not speaking English and said that he would be able to work and pay taxes if he were able to stay but “He has used the NHS which he has not paid for, so he has been a burden to the state in that regard.” [33]. However ultimately she concluded that because Mr Dhiriwala met the requirements of immigration rules, the balance came down in his favour [34].
6. On the evening of 3 July 2025, SSHD made an application to the tribunal to set aside the decision saying that their case management system showed that Mr Dhiriwala had an outstanding NHS debt of £5436, to which SSHD had been alerted by the NHS. The application said that the presenting officer had asked Mr Dhiriwala in cross-examination whether he had paid for any NHS treatment, and he responded that he did not have to pay. It continued that Mr Dhiriwala fell for refusal on suitability grounds as he had an NHS debt of over £500 and SSHD was not willing to apply discretion. It invited the tribunal to invite submissions from Mr Dhiriwala’s (then) representatives and to reconvene the hearing.
7. The set aside application was considered by a legal officer on 11 July and SSHD was informed that as the decision had already been promulgated it was too late to raise new issues or submit further evidence through the applications in the course of proceedings mode and the appropriate course was to make an application for permission to appeal.
8. I discovered from the case history section of the myHMCTS website (which is not accessible to the parties) that the FTTJ’s decision was promulgated at 5:31 pm on 3 July, the day of the hearing, and SSHD’s application was made at 7:41 pm that same day, so after promulgation. I informed the parties at the hearing and offered to show them my computer if they wanted to check my understanding. They did not.
Grounds and their development at the hearing
9. The grounds submit that the FTTJ made a material misdirection of law and erred in their proportionality assessment because they had failed to note that Mr Dhiriwala was unable to meet the suitability requirements in respect of English language ability and in respect of his debt to the NHS.
10. They said that under PL 16.1 an applicant had to show English language ability to at least B1 level and under S-LTR 4.5 the application fell for refusal because an NHS body had notified the Secretary of State that the applicant had failed to play charges in accordance with the relevant regulations and that the outstanding charges had a total value of at least £500.
11. SSHD applied under rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 on 10 July 2026 to admit the evidence in the application of the SSHD of 3 July and the extract from the case management system concerning the debt to the NHS. It was said that although the evidence was post-hearing evidence, it was not until the oral evidence at the hearing that further enquiry was triggered which resulted in the application and that in any event the new evidence satisfied the Ladd v Marshall [1954] EWCA Civ 1 criteria as it was not evidence which could be obtained with reasonable diligence for the hearing itself, it would have an important influence on the result of the case and it was credible.
12. Mrs Arif agreed with me that the drafter of the grounds was mistaken in respect of English language ability; PL 16.1 only applied to applications for settlement. As this was not an application for settlement, there was no relevant requirement in respect of English language ability in immigration rules and the FTTJ had not erred in that respect.
13. Mrs Arif said her primary submission was that there was a reasonable inference from the material which was before the FTTJ that Mr Dhiriwala did not meet S-LTR 4.5. She acknowledged that the specific evidence was not before the FTTJ, but she said that the FTTJ found that Mr Dhiriwala had used the NHS and was a burden to the state in that regard. She submitted that it was incumbent upon the FTTJ to consider the legal consequences of those findings before she “overlooked” the suitability requirements and found PL 5.1 determinative.
14. I pointed out to Mrs Arif that the suitability requirement was not simply not paying for treatment which legislation suggested was not free, it was the SSHD receiving a notification from an NHS body that there was a failure to pay specific charges. I indicated it might be difficult to see how it could be inferred that there had been such a notification, as several intermediate steps were required going beyond an appellant simply not paying for treatment. She said that her secondary submission was that despite the agreed issues being set out, the FTTJ, in the light of evidence which came out at the hearing from Mr Dhiriwala should have considered asking further questions and potentially investigating so that she had all the material to make a decision. She said that the FTTJ should have said that it needed to be checked whether the suitability rules had been met.
15. Mrs Arif agreed with me that if she was saying that the FTTJ should have checked, or prompted the SSHD to check, then it became necessary for her argument to succeed, to apply to admit the evidence about the entry in SSHD’s records. She agreed that the Ladd v Marshall criteria were relevant and submitted that the evidence could not have been obtained with reasonable diligence for use at the hearing because the presenting officer did not become aware of it until after the hearing, from what had been said at the hearing. I put to Mrs Arif that the information could surely have been discovered at the review stage, as Mr Dhiriwala had served material (indeed commented on by the reviewing officer) that he had suffered a heart attack, had been treated as a hospital in-patient and had follow-up treatment. I said that I considered that the Ladd v Marshall criteria could not be met.
16. After Mrs Arif’s submissions concluded, I told Mr Dhiriwala that I did not need to hear from him as I was dismissing SSHD’s appeal. I explained that I considered that the FTTJ could not have concluded on the material before her that he came within the terms of S-LTR 4.5 and I was not admitting the post-hearing evidence that he owed a debt to the NHS as I considered that evidence could have been obtained with reasonable diligence for use at the hearing. I said I would give full reasons in writing.
Discussion and conclusions
17. SSHD’s decision letter explained that the application did not fall for refusal on grounds of suitability in section S-LTR. The issue, as the FTTJ set out, was whether Mr Dhiriwala met the requirements of PL 5.1, that is whether he had lived in the UK continuously for at least 20 years.
18. At the relevant time, the suitability requirements of Appendix Private Life provided at PL 2.1 that the application must not fall for refusal under the suitability grounds for refusal for leave to remain set out in S-LTR 1.2 to S-LTR 2.2 and S-LTR 3.1 to S-LTR 4.5 of Appendix FM.
19. S-LTR 2.1 of Appendix FM provided at the relevant time that an applicant may be refused on grounds of suitability if any of paragraphs S-LTR 4.2 to S-LTR 4.5 applied.
20. S-LTR 4.5 provided: “One or more relevant NHS bodies has notified the Secretary of State that the applicant has failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors and the outstanding charges have a total value of at least £500.”
21. Bearing the terms of the suitability requirements in mind, the FTTJ cannot have failed to note that Mr Dhiriwala was unable to meet the suitability requirements as the grounds suggest. The FTTJ did not even note that Mr Dhiriwala had an outstanding debt. She concluded that he had used treatment for which he had not paid. The evidence noted by the presenting officer was not that Mr Dhiriwala accepted that he owed money, it was that he did not have to pay. Whether or not a person is bound in law to pay for hospital treatment, if they receive free treatment they can still be seen as a burden to the State in the sense that they have not contributed through national insurance, taxes or the immigration health surcharge.
22. I consider (and noting that the burden is on the SSHD to prove that a person comes within the suitability requirements) that the FTTJ could not have inferred from the evidence that Mr Dhiriwala failed the requirements of S-LTR 4.5. There are several stages to that conclusion. The first one is that there are charges which Mr Dhiriwala had failed to pay. It is known that Mr Dhiriwala had NHS treatment and whether he is liable to pay for treatment is a matter of law. It does not follow logically from being legally liable to pay, that he would have been billed by the NHS for such treatment. He could only come within S-LTR 4.5 if he had been billed and failed to pay. The billing cannot be inferred; indeed, it was contrary to Mr Dhiriwala’s evidence at the hearing. Whilst it must follow from his evidence at the hearing that if he had been billed, he had not paid, the second stage is that the NHS body must notify the Secretary of State of the outstanding charges. Again, that cannot be inferred. Finally, even if Mr Dhiriwala came within the terms of S-LTR 4.5, failing to qualify on suitability grounds is dependent on SSHD’s discretion.
23. It is difficult to see how the FTTJ could possibly have inferred that SSHD had considered discretion and exercised it against Mr Dhiriwala. Indeed, as it is not suggested that the issue of suitability was mentioned at the hearing by the presenting officer, if it had occurred to the FTTJ that Mr Dhiriwala might have owed a debt to the NHS which had been notified to the SSHD, if she is likely to have inferred anything it is likely to have been that SSHD had considered the matter and decided not to raise suitability.
24. The FTTJ did not err by failing to infer from the evidence that Mr Dhiriwala did not meet the suitability requirements.
25. I see no merit in the suggestion that the FTTJ should have investigated further once she appreciated that Mr Dhiriwala had not paid for treatment under the NHS. This is completely contrary to the principles set out in the President’s Practice Direction of November 2024 for the Immigration and Asylum Chamber. Paragraph 11.4 states that “The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision”.
26. The presenting officer could, if she had wished, raised concerns at the hearing about potential suitability and asked the FTTJ to consider it further. She did not do so. I appreciate that she did not know at the outset of the hearing that Mr Dhiriwala would say that he had NHS treatment but he had not paid for it, but on preparing her cross-examination she would have appreciated from the hearing bundle that there was medical evidence that Mr Dhiriwala had a heart attack in January 2024 and received treatment for it as an inpatient (apparently under the NHS as the letter setting out this evidence bears the NHS logo at its head). If the presenting officer wanted this to go to any more than proportionality if the immigration rules were not met, then she could always have indicated that suitability might be an issue, or might need investigating if she did not immediately have access to the relevant database and she could have asked the FTTJ for time or indicated that she might wish to submit post-hearing evidence.
27. The case of Secretary of State for the Home Department v Lata [2023] UKUT 00163 (recently approved by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370) explains that proceedings before the IAC are not some form of rolling reconsideration by either party of its position and that “ It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified (headnote 4). The case emphasises that it is not the task of a judge to trawl through the evidence looking for issues to raise which might assist one party or the other.
28. The case-law referred to and the 2024 Practice Direction indicate that the FTTJ was completely right to confine the appeal to the disputed issues and she made no error of law in not conducting an investigation about whether there were outstanding charges for Mr Dhiriwala’s treatment and whether the NHS had notified the SSHD to that effect.
29. The FTTJ therefore made no error of law and her decision stands.
30. I consider however the alternative if I am wrong and the FTTJ should have investigated or if it is said that the FTTJ was operating under a mistake of fact as to suitability. In either case, the admission of post-hearing evidence (the evidence on the SSHD’s system about notification of a debt and SSHD’s consideration of discretion) is necessary to consider what is said to be the true position.
31. The application to admit such evidence submits that the new evidence satisfies the three conditions of the principles from Ladd v Marshall. As I explained at the hearing, I consider it fails the first criteria, namely that it was not evidence which could have been obtained with reasonable diligence for use at the hearing itself.
32. Considering the evidence on a provisional basis it shows that the debt arose on 23 February 2024 and the referral is noted as created on 18 November 2024 (which I assume must either be the date it was notified to the SSHD by the NHS body or the date it was entered on SSHD’s case management system after such notification).
33. 18 November 2024 was after the date of the refusal letter. However, the medical evidence which showed Mr Dhiriwala had suffered a heart attack was available to SSHD at the date of review. That review was dated 20 February 2025 and specifically considered the skeleton argument on behalf of Mr Dhiriwala and the evidence he had submitted and did not add to the issues, but noted that consideration had been given to the medical evidence provided showing that Mr Dhiriwala had suffered a heart attack, in the context that he would be able to access appropriate medical care in India.
34. According to the November 2024 Practice Direction, paragraph 7.11 (c) the review must “explain whether the respondent agrees that the schedule of the disputed issues is correct and, if not, the correct list of disputed issues, including whether there are any further issues that the respondent wishes to raise”. The SSHD should therefore at the time of the review, have checked to see if they had been notified that Mr Dhiriwala owed a debt to the NHS. They had been alerted to the fact he might do by their knowledge, having perused the evidence, that he had been an inpatient at an NHS hospital. If they had checked their systems in February 2025 they would have found the information about the notification of the debt. The information could therefore have been obtained with reasonable diligence well before the hearing and that was the reason I was not prepared to admit the evidence.
35. Of course, SSHD only exercised discretion to refuse on suitability grounds after the hearing. One can look at that in two ways, either if the information had been obtained when it should have been the refusal would have taken place at review stage (so that the fact of the exercise of SSHD’s discretion is also post hearing evidence which fails the Ladd v Marshall criteria) or, as the discretion was only exercised post hearing (indeed post decision) the FTTJ could not possibly have made an error of law in that respect as it was not a matter she knew about, neither could it be said to be a mistake of fact, it simply had not happened when she came to her decision.
Notice of Decision
The judge’s decision contains no error of law and stands.
The Secretary of State’s appeal fails and is dismissed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2026