Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2026-000473
FtT No: HU/62316/2023
LH/05123/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of September 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

KIRANJIT KUMAR
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Raza (on 13 May 2026) and Mr S Juss (on 28 August 2026)
For the Respondent: Ms K Khan (on 13 May 2026 and 28 August 2026)

Heard at Field House on 13 May 2026 and 28 August 2026

DECISION AND REASONS
A. Introduction
1. The appellant appeals a decision of the First-tier Tribunal dismissing his human rights (article 8 ECHR) appeal by decision dated 23 October 2024.
2. There was a delay in the appellant’s application for permission to appeal being considered by the First-tier Tribunal. The application was refused by Resident Judge Clarke on 15 January 2026. The appellant filed an in-time appeal with this Tribunal and Upper Tribunal Judge Ruddick granted permission to appeal by a decision sent to the parties on 12 March 2026.
3. The matter was listed before the Upper Tribunal on 13 May 2026. Mr Raza conceded ground one and made submissions in respect of ground two. Ms Khan sought time to address ground two and I concluded that it was in the interests of justice to grant the respondent her requested adjournment. There then appears to have been some confusion on the part of the appellant’s solicitors. Mr Juss prepared a skeleton argument on behalf of the appellant running to five pages, dated 18 August 2026, which was filed with the Tribunal. He appears not to have been informed by his instructing solicitors that the matter was part heard and that the appellant’s submissions had been made. At the outset of the hearing on 28 August 2026, it was agreed between the parties that the most just course of action, being mindful that the confusion did not lay at the feet of the appellant himself, was to recommence the hearing and to permit Mr Juss to make his submissions.
B. Relevant facts
4. The appellant is a national of India and is presently aged 41. He was granted entry clearance as a Tier 4 (General) Migrant and subsequently entered this country on 11 October 2009 with his leave expiring on 18 June 2013. He successfully applied to vary his leave on 6 June 2013 and was granted leave to remain until 17 February 2015. On 12 February 2015, he applied for leave to remain outside of the Immigration Rules on human rights (article 8 ECHR) grounds. The respondent refused the application by a decision dated 15 October 2015, which was placed on file. The refusal followed an investigation into a test the appellant undertook with ETS. Following the investigation, the respondent was satisfied that the appellant had used deception to obtain his TOEIC certificate and that he had knowingly submitted a false document in support of his 2013 application for an extension of leave as a Tier 4 (General) Migrant.
5. On 12 May 2023, the appellant made an application for leave to remain on long residency grounds. The respondent refused this application by a decision dated 3 October 2023, and it is this decision that is subject to the appeal presently before this Tribunal.
C. The First-tier Tribunal decision
6. The appellant’s appeal was heard by the First-tier Tribunal sitting at Taylor House on 9 October 2024. It was listed as a float and was called on before the Judge during the course of the day. The appellant was represented by counsel who was neither Mr Raza nor Mr Juss. There was no attendance on behalf of the respondent. The appellant’s counsel observed that there was a bare assertion of fraud and the respondent had not provided any evidence to support that assertion. Additionally, counsel said that the respondent’s reasons for refusal did not address the issue of suitability, despite an allegation of fraud being raised.
7. The Judge concluded that the respondent had failed to provide any evidence in support of the allegation of deception. Documents that were expected to be placed before the First-tier Tribunal, such as the relevant spreadsheet, the look-up tool, and any witness statements evidencing the appellant’s alleged fraud, were absent. She observed that it was for the respondent to prove an allegation of fraud, but in this case the respondent had not provided any evidence in support and it was concluded that the respondent had not proven her allegation that the appellant had used deception to obtain his TOEIC certificate.
8. Consequent to the finding in respect of deception, the Judge proceeded to consider the appellant’s case under the long residence rule, namely paragraph 276B of the Immigration Rules. She observed that the appellant had not fulfilled the requirements of ten years’ lawful residence.
9. Turning to paragraph 276ADE of the Rules, the Judge found that the appellant would not face very significant obstacles in reintegrating into Indian society on his return, noting that his formative years were spent in that country, he was educated there, and he would not face any linguistic difficulties on return.
10. The Judge concluded that the appellant had not established that there would be unjustifiably harsh consequences if he were to return to India. She noted that he was financially independent and spoke English, but that his status in the United Kingdom had been precarious even at the times when he was lawfully present in this country. She found that there was no evidence before her to show that he would face any hardship on return to India, or that he would not be able to find employment or continue his studies there if he chose to.
11. The focus of the appeal before this Tribunal was directed to an element of the Judge’s reasoning at paragraph 19:
‘19. … The appellant is relying on a historical injustice argument on the basis that the respondent wrongly refused his 2015 application on deception grounds. I do not have a copy of that decision, so cannot know if it was solely on that basis or whether there were also other grounds. By then, the appellant had been in the UK as a student for six years, and there were some limitations on the amount of years that a student could remain studying in the UK. It is impossible to state that but for the allegation of fraud, the appellant’s application would have been successful, or to state that but for the allegation of fraud, any subsequent applications would also have been successful, such that by 2019 the appellant would have been living in the UK lawfully for ten years. That is simply too speculative. The appellant does not fulfil the requirements of the Immigration Rules, and the evidence does not show that there would be unjustifiably harsh consequences if he were refused leave to remain. It is in the public interest to expect those who have no basis to remain in the UK to leave the UK. I accept that the respondent has not proven her allegation of deception, but that is one factor among many which I must consider, and the evidence before me did not show that but for that allegation the appellant would have been granted further leave to remain either in 2015 or thereafter. …’ [Emphasis added]
D. Grounds of appeal
12. The grounds of appeal were unhelpfully not delineated with clarity into individual challenges. With the aid of Mr Raza, it was identified that two grounds were being advanced. The first ground was withdrawn, and there is no requirement that it be addressed in this decision.
13. The sole remaining ground is whether the First-tier Tribunal’s application of the ‘but for’ consideration amounted to an error of law.
14. In granting permission to appeal, Upper Tribunal Judge Ruddick reasoned:
‘1. The Fist-tier Tribunal found that the respondent had not proved an allegation that the appellant had used deception in obtaining a TOEIC certificate in 2013. The FTT put no weight on the appellant’s ‘historical injustice’ argument, on the grounds that:
"It is impossible to state that “but for” the allegation of fraud, the appellant’s application would have been successful. Or to state that “but for” the allegation of fraud, any subsequent applications would also have been successful, such that by 2019 the appellant would have been living in the UK lawfully for ten years. That is simply too speculative."
2. It is arguable that this approach is not consistent with Ahsan or Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351 (IAC), which arguably do not impose a ‘but for’ test in order for the historical injustice to be taken into account in the Article 8 assessment.’
E. Analysis
15. Mr Juss’s argument is a succinct one. He submitted that it is well known that the Presidential panel in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351 (IAC), [2021] Imm AR 355 undertook a detailed consideration of how an ‘injustice’ might affect the public interest in effective immigration controls. What the panel did was to draw a distinction between ‘historic injustice’ and ‘historical injustice’. The former was limited to a very limited number of specific cases where the UK government has belatedly recognised that a particular class of person has been wrongly treated. ‘Historical injustice’ was explained in the headnote of Patel as including circumstances where the respondent forms a view about an individual’s activities or behaviour, which leads to an adverse immigration decision, but where her view turns out to be mistaken. The panel’s reasoning is consistent with the Court of Appeal judgment in Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009, [2018] Imm AR 531.
16. Mr Juss observed that the ‘but for’ test is one that is applied in historic injustice cases. The present appeal is not such a case. Consequently, the application of the test in a historical injustice case was unlawful.
17. Ms Khan, by means of a carefully drafted skeleton argument, initially sought to contend that because of the article 8 assessment, the ‘but for’ test could be transposed to a historical injustice case. She sought to rely upon the recent Presidential panel decision in Gurung and others (Gurkhas; historic injustice; Article 8) [2026] UKUT 00191 (IAC). It was acknowledged that the panel in Gurung was considering a historic rather than a historical injustice case. However, upon reflection, Ms Khan conceded that the First-tier Tribunal had made a material error of law in the application of the ‘but for’ test, which I observe is a test for causation. In other words, it is a causation bar as it is not sufficient for an applicant to simply point to a recognized historic wrong by the State. Instead, they must establish a clear causal connection between the wrong and their circumstances by proving a specific fact: but for the historic injustice, or the improper bar, they would have settled in the United Kingdom much sooner. In historical injustice cases, the erroneous treatment of a person can have a bearing on the article 8 proportionality assessment and so permits the person to argue that weight should be given in the balancing exercise to their being granted leave to remain if the respondent had not formed a mistaken view. However, establishing the causal link is not by itself determinative in the proportionality assessment. Consequently, the ‘but for’ test is not applicable in historical injustice cases.
18. Mr Juss sought to raise a second ground in his oral submissions, which had neither been advanced in the grounds of appeal, nor, it appears, raised at any point before the First-tier Tribunal. It was not identifiable in either the appeal skeleton argument or in the Judge’s decision as having been raised orally at the hearing. I did not grant Mr Juss permission to rely on this purported second ground, noting both procedural propriety and the well-established guidance of this Tribunal in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), [2023] Imm AR 1416 which was approved by the Court of Appeal in Al v Secretary of State for the Home Department [2026] EWCA Civ 370.
19. I detail the substance of the proposed submission as it may be advanced at the remaking hearing. Mr Juss observed that if the decision of 6 October 2015 was placed on file, though the address of the appellant’s legal representatives was entered on the document, section 3C leave continued up until its service. Consequently, it may be that the appellant meets the ten-year rule. I make no finding on this contention but consider it prudent to note the likelihood of it being advanced at a future date in these proceedings.
F. Resumed hearing
20. I am mindful of the fact that the presumption is that the resumed hearing will take place in the Upper Tribunal. However, this is a matter where there is likely to be further evidence filed and lengthy oral evidence.
21. In the circumstances, I consider the most appropriate venue for the remaking of this decision is the First-tier Tribunal sitting at Taylor House. Both representatives agreed.
G. Directions
22. Whilst this Tribunal does not normally give directions to the First-tier Tribunal, it may do in circumstances where it is considered helpful.
23. I observe Ms Khan’s confirmation that the respondent intends to file the relevant spreadsheet, look-up tool, and relevant witness statements evidencing the appellant’s alleged fraud before the next hearing.
24. To aid future listing, I record directions that were agreed with the representatives at the conclusion of the error of law hearing:
i. The respondent is to file and serve any further evidence to be relied upon no later than 28 days from the promulgation of this decision.
ii. The appellant is to file and serve a new ASA and any further evidence to be relied upon, if so advised, no later than 21 days thereafter.
iii. The respondent is to file and serve a new review no later than 21 days thereafter.
iv. The matter is to be listed on the first available date at Taylor House on or after Monday 7 December 2026.
H. Notice of Decision
25. The decision of the First-tier Tribunal sent to the parties on 23 October 2024 is set aside for material error of law. No findings of fact are preserved.
26. The appeal is remitted to the First-tier Tribunal sitting at Taylor House.
27. No anonymity direction is made.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2026