Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000292
First-tier Tribunal No: HU/54637/2024
LH/01162/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of September 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

Md Tufayel Ahmed Tanvir
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Nwachuku, instructed by Imperium Chambers
For the Respondent: Ms Khan, Senior Home Office Presenting Officer

Heard at Field House on 23 July 2026

DECISION AND REASONS

1. The Appellant appeals against the Respondent’s refusal dated 1 December 2023 to refuse his human rights claim.
2. The Appellant’s appeal was allowed by the First-tier Tribunal in a decision promulgated on 14 July 2025. That decision was set aside by the Upper Tribunal on 9 April 2026, but the finding that the Appellant’s removal would have unjustifiably harsh consequences was preserved. The appeal was directed to be remade by the Upper Tribunal on the sole issue of whether it would be proportionate to require the Appellant to return to Bangladesh to make an application for entry clearance.
3. For the reasons set out below I have concluded that in the particular circumstances of this case, and given the preserved findings of the First-tier Tribunal, it would not be proportionate to require the Appellant to return to Bangladesh to make an application for entry clearance. The Appellant’s appeal is therefore allowed.
Background
4. The Appellant is a national of Bangladesh. He entered the UK as a child (then aged 13) in 2011 on a visit visa together with his father and later became a dependant on his father’s asylum claim. The claim was refused and the Appellant’s father became appeal rights exhausted in 2013, when the Appellant was aged 15. Thereafter the Appellant remained in the UK as an overstayer. Further submissions seeking to regularise his status were refused in September 2016 and November 2022.
5. On 15 December 2022 the Appellant made an application for leave to remain in the UK on the basis of his relationship with his then partner (now his wife), who is a British citizen. The Appellant and his wife met and entered into a relationship whilst students at sixth form college in 2014, became engaged and began cohabiting in February 2023 and were married in a religious ceremony on 9 August 2023 and a civil ceremony on 7 March 2024.
6. The Appellant’s application for leave to remain was refused. Although the Respondent accepted that the relationship between the Appellant and his wife was genuine and subsisting, she held that there were not very significant obstacles to integration in Bangladesh and that it would not be unjustifiably harsh to require the couple to continue their relationship in Bangladesh.
7. The Appellant’s appeal against the refusal was heard by the First-tier Tribunal on 23 June 2025. The Respondent was not represented. In a determination promulgated on 14 July 2025, the First-tier Tribunal found that there would not be very significant obstacles to the Appellant’s integration in Bangladesh; nor were there insurmountable obstacles to the Appellant and his wife continuing their family life together in Bangladesh. However, the First-tier Tribunal found that the Appellant’s expulsion would have unjustifiably harsh consequences for him and his wife and would therefore breach Article 8 ECHR, having regard to the length of the Appellant’s UK residence, the young age at which he was brought to the UK, his wife’s strong ties to the UK and her lack of any ties to or familiarity with Bangladesh.
8. The Respondent appealed. Following an error of law hearing on 24 March 2026, the Upper Tribunal found that the First-tier Tribunal had erred by failing to consider the Respondent’s argument that it would be proportionate for the Appellant to return to Bangladesh to apply for entry clearance. The Respondent’s other grounds of appeal were dismissed. The Upper Tribunal set aside the First-tier Tribunal’s decision and directed that the appeal be reheard in the Upper Tribunal, limited to the sole issue of the proportionality of interim removal pending an application for entry clearance. The Upper Tribunal noted that the Tribunal remaking the appeal decision was “likely to be assisted by the Respondent making clear her position on whether she anticipates that an application for entry clearance would succeed and the length of any re-entry ban that the Respondent will face in the particular circumstances of this case.” The Respondent did not file any evidence or submissions on those issues.
9. The appeal came before me on 23 July 2026. The parties agreed that it was not necessary to hear oral evidence and the hearing therefore proceeded on the basis of submissions only, following which I reserved my decision. I am grateful to both representatives for their concise and structured submissions.
The parties’ submissions
10. On behalf of the Respondent, Ms Khan candidly recognised that no evidence had been filed by the Secretary of State as to the prospects of success in an entry clearance application by the Appellant, nor the likely timeframe for an application to be processed. On the basis of available public materials on the gov.uk website, however, she was able to inform the Tribunal that the indicative processing timescale for partner/spouse entry clearance applications was 12 weeks. Ms Khan submitted that there was nothing in the Appellant’s evidence which demonstrated that he could not return to Bangladesh to make an entry clearance application, and that his wife could either join him in Bangladesh or remain in the UK whilst the application was pending. Ms Khan was not able to indicate whether the Appellant’s application for entry clearance would succeed, as that would depend on the Immigration Rules applicable at the time. She submitted that the Appellant’s previous overstaying would not result in a mandatory re-entry ban under Appendix FM, but that if a discretionary re-entry ban were applied it would not be disproportionate to require the Appellant to remain in Bangladesh pending the expiry of that ban. Ms Khan relied on the Court of Appeal decisions in Butt v SSHD [2025] EWCA Civ 189 and Alam v SSHD [2023] EWCA Civ 30, [2023] 4 WLR 17 and submitted that the Upper Tribunal was required to undertake a full proportionality assessment of the proportionality of interim removal. She invited the Upper Tribunal to find that it would not be disproportionate to require the Appellant to return to Bangladesh to make an application for entry clearance, and to dismiss the appeal.
11. On behalf of the Appellant, Ms Nwachuku submitted that the Secretary of State had not indicated whether an application for entry clearance would succeed or if the Appellant would be subject to a discretionary re-entry ban on the basis of his previous overstaying. It was not possible to know whether the Appellant would have to remain in Bangladesh for a short time, as the Respondent had suggested. There was in this case no need to carry out a full proportionality assessment; that had already been done by the First-tier Tribunal in its preserved findings. The Appellant had now been resident in the UK for more than half his life, which was an additional factor which the Upper Tribunal could take into account. The First-tier Tribunal had found that the Appellant’s expulsion would be disproportionate; that finding already incorporated consideration of the public interest in maintaining immigration control. The Respondent had not discharged the burden of showing that requiring the Appellant to leave the UK for a limited period of uncertain duration would be disproportionate. She invited me to allow the appeal.
Discussion and decision
12. The sole issue for determination in this appeal is whether it would be proportionate to require the Appellant to return to Bangladesh to make an application for entry clearance to rejoin his spouse in the UK.
The post-Chikwamba authorities: Alam and Butt
13. I turn first to the Court of Appeal’s decisions in Alam and Butt, and the prior judgment of the House of Lords in R (Chikwamba) v SSHD [2008] UKHL 40, [2008] 1 WLR 1420 (‘Chikwamba’).
14. In Chikwamba, the appellant’s appeal on Article 8 grounds was dismissed by the Tribunal on the basis that she could return to Zimbabwe to apply for entry clearance (an application which was bound to succeed). The House of Lords allowed her appeal. Lord Brown, giving the leading speech, held (§42) that although it might be reasonable and proportionate in some cases to require an individual to apply for entry clearance from abroad, that was fact-sensitive and required consideration of factors including the time it might take to obtain entry clearance, the reason why the appellant had come to the UK and the likely length and extent of any temporary disruption to family life in the meantime. On the facts in the appellant’s case, the public interest in effective immigration control did not require her return to Zimbabwe to make an entry clearance application. Lord Brown concluded at (§44):
“Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad….”
15. In Alam, the Court of Appeal considered appeals by two individuals who had sought leave to remain on the basis of their relationships with British nationals; the tribunal had found in both cases that family life could continue abroad, and the question was whether the tribunal had erred in dismissing the appeals on the basis that the appellants could apply for entry clearance from abroad. The Court of Appeal held (§106-114) that due to the changes in the legal framework brought about by the enactment of Part 5A of Nationality, Immigration and Asylum Act 2002 and the inclusion of Article 8 provisions in the Immigration Rules, Chikwamba did not now state a rule of law which was binding on a court or tribunal in an Article 8 case. Chikwamba was now only potentially relevant in an appeal where an application for leave was refused on the narrow procedural ground that the applicant must leave the UK to apply for entry clearance (§113); even in such a case, a full analysis of the Article 8 claim was necessary. On the facts, the applications of the two appellants in Alam could not succeed under the Immigration Rules, and the fact that there were no insurmountable obstacles to family life continuing abroad was a further powerful factor militating against the Article 8 claims. The appeals were dismissed.
16. In Butt the Court of Appeal rejected (§84) the appellant’s argument that a refusal of leave to remain was “in substance” a requirement to leave the UK and apply for entry clearance which automatically attracted the reasoning in Chikwamba. The Court confirmed the reasoning in Alam.
Application to this appeal
17. The principles set out in Alam and Butt are clear. However, in the somewhat unusual circumstances of this appeal I conclude that both judgments are of limited relevance to the narrow issue I have to determine.
18. I bear in mind the recent obiter observations of the Court of Appeal in Entry Clearance Officer v FA [2026] EWCA Civ 1014 at §76-80 that it is not for the Tribunal to determine whether or not the Appellant would meet the requirements for entry clearance. The task of the Upper Tribunal in this appeal is to determine whether, on the evidence available, it would be proportionate to require the Appellant to leave the UK to make an application.
19. In this case, all of the findings made by the First-tier Tribunal in the determination of 14 July 2025 have been preserved. In particular, that means that although the First-tier Tribunal found that there were not insurmountable obstacles to family life continuing in Bangladesh, the First-tier Tribunal also found that the Appellant’s expulsion from the UK would have unjustifiably harsh consequences and would be disproportionate to the legitimate aim of immigration control, so that paragraph GEN 3.2 of the Immigration Rules applies to his case.
20. The First-tier Tribunal’s preserved finding that the Appellant’s expulsion from the UK would have unjustifiably harsh consequences and would therefore be a disproportionate interference with Article 8 rights means that the proportionality of the Appellant’s permanent removal from the UK has already been determined. There has already been a full assessment of the Appellant’s Article 8 case which has given appropriate weight to the public interest in immigration control (Alam). The fact that the Appellant has been found to meet the requirements of the Immigration Rules, and that his removal has been found to be disproportionate, are important factors distinguishing his appeal from those of the appellants in Alam and Butt.
21. In the context of those preserved findings, it is for the Respondent to show that the Appellant’s interim removal from the UK for the purpose of making an entry clearance application is justified and proportionate to the legitimate aim of immigration control: AB (Jamaica) v SSHD [2008] INLR 83, [2007] EWCA Civ 1302 at §7.
22. Despite the indication given by the Upper Tribunal in the error of law decision, the Respondent has not filed any further evidence. That means that there is almost no evidence before me about (i) the likely prospects of success were the Appellant to make an application for entry clearance, (ii) the length of time it might take to process the application, and/or (iii) whether the Appellant might face a re-entry ban on the grounds of his previous overstaying and if so, how long such a ban might be. Indeed, the only evidence relevant to those issues was the publicly available information from the gov.uk website referred to by Ms Khan in her submissions, which gives an indicative timetable of 12 weeks for processing an entry clearance application. That information, which is both indicative and generic, does not address the likely timetable in the Appellant’s particular circumstances, nor whether the Respondent would seek to impose a discretionary re-entry ban on the basis of his overstaying. If a ban were imposed, it would be for a period of at least 12 months and potentially up to 5 years (paragraph SUI 12.1 of the Immigration Rules).
23. I note two further factors which weigh in the Appellant’s favour in the proportionality analysis. First, the Appellant has now been in the UK for more than half his life, which is recognised as a significant factor in the Immigration Rules. Second, the First-tier Tribunal’s finding that the Appellant’s removal would have unjustifiably harsh consequences was made in the context of the Appellant’s wife accompanying him to Bangladesh. The Appellant’s wife works as a primary school teacher and has never left the UK; I find that she could not reasonably accompany the Appellant to Bangladesh for the duration of the processing of his entry clearance application (a minimum period of 12 weeks and potentially more than 12 months) without potentially losing her employment and without a significant period of separation from her family and private life in the UK. The couple would therefore be separated for a significant period of time, particularly if a re-entry ban were imposed.
24. I give weight to the public interest in maintaining immigration control, which is always a significant factor. However, the Appellant’s removal has already been found to be disproportionate to the legitimate aim of immigration control and the evidence before me does not displace that finding, even considering that the proposed removal would (at least in theory) be for a more limited period.
25. In the absence of evidence about the likely prospect of success in an entry clearance application, the timescale for a decision, and/or the likelihood of a re-entry ban, and in the context of the preserved findings of the First-tier Tribunal, I find that it would be disproportionate to require the Appellant to return to Bangladesh to make an entry clearance application.
26. The Appellant’s appeal is allowed.
Notice of Decision
The Appellant’s appeal is allowed on human rights grounds.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 September 2026