Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000481
First-tier Tribunal No: HU/59245/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of September 2026

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIUNAL JUDGE RICHARDS

Between

NAVEEN KUMAR POTHULA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sharman, Counsel
For the Respondent: Ms Simbi, Senior Presenting Officer

Heard at Birmingham Civil Justice Centre on 24 July 2026

DECISION AND REASONS
Introduction and procedural matters
1. This is an appeal by Naveen Kumar Pothula against the decision of the First-tier Tribunal dated 17 October 2025 to refuse the Appellant’s appeal against the decision of the Respondent on 16 July 2024 to refuse his application dated 27 March 2023 for leave to remain in the UK based on his private life here. The Respondent concluded that, in his 2013 application, the Appellant had submitted a fraudulently obtained English Language Certificate and for that reason he failed to meet the suitability requirements for leave.
2. The Appellant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal on 8 Grounds and on 4 February 2026 the First-tier Tribunal granted permission in respect of Grounds 1-3 and refused permission in respect of Grounds 4-8.
3. This grant of permission was erroneously headed “Permission to appeal is refused”, and this was amended under Rule 31 (the ‘slip rule’) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 on 7 February 2026 to read “Permission to appeal is granted on limited grounds as particularised below (Grounds 1-3)”.
4. The Appellant attempted to renew their application for permission to appeal in respect of Grounds 4-8 to the First-tier Tribunal in a document dated 17 February 2026.
5. This was refused by the First-tier Tribunal on 18 February 2026 stating that the First-tier Tribunal was now functus officio.
6. The case came before us on 24 July 2026 where we considered the submissions of both parties and the bundle of 1341 pages.
7. We also considered additional documents filed on behalf of the Appellant with the Upper Tribunal the week before the hearing. We were unaware of these before the hearing began, however they had been received by Ms Simbi the previous week. These consisted of:
a. an application form for permission to appeal against a decision made by the First-tier Tribunal (Immigration and Asylum Chamber) dated 17 July 2026;
b. a witness statement from a member of the Appellant’s legal team explaining that her failure to renew the Appellant’s permission to appeal on Grounds 4-8 between 18 February 2026 and 17 July 2026 was due to an “oversight”;
c. a document setting out the Appellant’s revised renewed grounds of appeal; and
d. a skeleton argument.
8. The Tribunal read these additional documents and listened to submissions on whether we should extend time to consider whether or not to grant permission to appeal on Grounds 4-8. The submissions both on this issue and on the substantive error-of-law decision have been audio recorded and thus are not repeated here. We do however note that Ms Simbi said that she was not prejudiced by the late application as she had received notice of it in time for her to prepare her submissions in relation to these Grounds.
9. We withdrew to consider the application firstly to extend time to consider whether or not to grant permission to appeal on Grounds 4-8. In doing so we balanced all the relevant factors and applied the case of Denton v TH White Ltd [2014] EWCA Civ 906.
10. In our judgment the delay in making the application is serious and significant. It constitutes a delay of almost 5 months which we consider a very significant time in the context of these legal proceedings. We note the importance of parties having a finality to the determination of the claim, and the strong public interest in delivering justice in a timely and proportional manner, even more so in the immigration context where there is already considerable delay between a claimant making a claim and a final decision in their case. It also raises the possibility of further delay in this case were we to extend time. We had prepared the case on the basis that only Grounds 1-3 were to be considered by us, and if we were to extend time and subsequently grant permission in relation to some or all of Grounds 4-8, we may not have been in a position to suitably conduct an error-of-law hearing in the time available necessitating an adjournment and consequent significant delay.
11. We are also mindful and put significant weight on the importance and need for procedural rigor in the Upper Tribunal. See for example in TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC) the words of the then President at [62] that:
There is no doubt that there is a clear need for procedural rigour in the consideration of applications for permission to appeal to the UT. That is not simply because it is a specific provision of the relevant Rules, but also because it is part of the process of ensuring the achievement of the overriding objective, which is a fundamental principle underpinning the provisions of the Rules.
12. We do accept that the reason for delay is not the personal fault of the Appellant, but rather his legal representatives. We note the explanation for the delay is that of one person’s “oversight” not to have appealed to the Upper Tribunal earlier. We accept that all professionals make errors from time-to-time but note that there was more than one person constituting the Appellant’s legal team, and that a SRA regulated law firm such as Hubers Law in this instance has a duty under the SRA Code of Conduct for Firms including:
…4.2 You ensure that the service you provide to clients is competent and delivered in a timely manner, and takes account of your client’s attributes, needs and circumstances.
4.3 You ensure that your managers and employees are competent to carry out their role, and keep their professional knowledge and skills, as well as understanding of their legal, ethical and regulatory obligations, up to date.
4.4 You have an effective system for supervising client’s matters.
13. In this case it does not appear that any system the firm had for supervising client’s matters has been effective, and that the service provided was not as competent and delivered in as timely a manner as it should have been. No explanation has been provided to us as to why the firm appears to not have had effective safeguards to protect against this error made by a junior member of staff.
14. We balance all of the circumstances of this case, including that Ms Simbi said the Respondent was not in fact prejudiced by the delay and that this is an important case for the Appellant and the fault for the error is not his, however in our judgment these factors are outweighed by the need to impose procedural rigor in proceedings before the Tribunal, the avoidance of delay, and our concerns about the conduct of the Appellant’s legal team and thus we have decided to refuse the application to extend time.
15. Having announced our decision in relation to that preliminary matter, we proceeded to hear submissions on the substantive application. At the end of the hearing we reserved our decision which we are delivering now.
16. There has been no application for anonymity in this case, and neither do we make one of our own volition due to the importance of open justice.
17. Grounds of appeal
18. Ground 1 asserts that First-tier Tribunal Judge Cartin (“the Judge”) misdirected himself in law about the legal status of DK and RK (ETS: SSHD evidence, proof) India [2022] UKUT 112 (IAC) and Varkey & Joseph (ETS – Hidden rooms) India [2024] UKUT 142 (IAC). It was the Appellant’s case at the First-tier Tribunal that there was new evidence which justified departing from these decisions.
19. The Judge explained his finding in his judgment as follows:
24. In short, the Appellant submits that the decisions in DK and RK and in Varkey and Joseph decision are not ‘binding’ on this Tribunal. They submit that the Upper Tribunal’s findings were flawed and that I ought to reach a different decision. They rely on MN and KY (Somalia) [2014] UKSC 30 for the proposition that determinations of the Upper Tribunal are not ‘factual precedents’ and so cannot be binding on the First-tier Tribunal.
25. However, the Senior President of Tribunal’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal provides at section 16 that:
All reported decisions of the Upper Tribunal, the AIT, and the IAT should be treated as authoritative statements of principle unless set aside or inconsistent with other authority that is binding on the Tribunal.
26. In my view, it is artificial to characterise the findings in DK and RK or Varkey and Joseph as being ‘factual precedents’ which by definition cannot be precedents for other Tribunals to follow. It is clear in my view that the UT reached authoritative statements of principle on the ever growing volume of evidence and opinions in this long-running litigation. Accordingly, I consider myself bound to follow those authoritative statements.
27. Further, even if this view were wrong, the Court of Appeal in Halima Akter and ors v SSHD [2022] EWCA Civ 741 endorsed the view that DK and RK (No.2) had precedential authority and held at [29]:
There would need to be good reason, which would inevitably mean substantial fresh evidence, for another UT to revisit and overturn the determination. This is not a situation, as Mr Wilcox suggested on behalf of HA, in which different Tribunals could reasonably reach different conclusions upon the same factual matrix.
28. I consider that proposition to be definitive, that there needs to be ‘substantial fresh evidence’ in order for the Upper Tribunal to even revisit this issue. The Court of Appeal appeared to not even countenance the notion that the First-tier Tribunal could itself reach a different conclusion upon this same factual matrix. This reinforces the point I make above about this Tribunal not being the appropriate forum for litigation of this sort.
29. Further, as the ASA acknowledged, Mr Stanbury’s further evidence was considered by the UT. They regarded his opinions as being much based on speculation. They reached the findings that they did having considered his theories and analysis. That undermines the notion that there is ‘substantial fresh evidence’ to merit a revisit of the decision.
30. It would be inconceivable that in every one of the many ETS dishonesty cases still before the FtT, that Judge’s should be required to consider the same arguments over and over for the points of principle to be relitigated. I further note that Varkey and Joseph is another decision of a Presidential Panel in a long line of such decisions which is further consistent with the line of authorities to have come from the Court of Appeal on this subject matter. I do not therefore go behind the findings in RK and DK or in Varkey and Joseph and I do not consider there to be any good reason to depart from those findings.”
20. It was argued before us that the Judge was wrong to treat reported Upper Tribunal determinations as authoritative or binding on issues of fact and the Judge should have instead taken them as the starting point (as per Devaseelan v SSHD [2002] UKIAT 702), but no more.
21. Ground 2 asserts that the Judge failed to have adequate regard or misconstrued or misunderstood relevant evidence, in particular the generic evidence submitted on behalf of the Appellant that the Appellant says undermines findings in DK and RK that it was plausible that there could be dissociation of entry from candidate while the test entries are in the control of ETS.
22. Ground 3 asserts that the Judge made an irrational finding in his [21] that states:
I have not found The Sutherland Report or articles about the SATs marking ‘fiasco’ to be remotely relevant. They are entirely unrelated to this Appellant and the widely acknowledged English language test cheating operation. The Appellant seeks to use the report as evidence of the incompetence of ETS or lack of trustworthiness. This issue has been considered extensively by the Courts and Tribunals for many years now. I consider the report to be of no additional value. Whilst the Tribunal does not have rules of evidence, that generality must be subject to the first rule of evidence which is that it must be relevant to be admissible. The report is irrelevant and so inadmissible.
23. The Appellant asserts that characterising “The Sutherland Report” or articles about SAT marking as irrelevant was irrational as they were patently relevant to the Appellant’s claim that ETS was in face a systemically untrustworthy and incompetent organisation, with a long track record of failure.
Ground 1
24. Both parties accept that the Judge should have followed all authoritative statements of principle in reported Upper Tribunal decisions, as indeed the Judge said himself. However the Appellant argues that it was not open to the Judge to interpret the findings of DK & VK and Varkey & Joseph as statements of principle rather than factual findings, from which it was potentially open for him to depart.
25. Below we have copied the headnote of both DK & VK and Varkey & Joseph as they were referenced by the Judge in his [10-11], along with our analysis as to which of these are statements of principle and which are statements of fact.
10. In DK & RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112 IAC, it was held that:
1. The evidence currently being tendered on behalf of the Secretary of State in ETS cases is amply sufficient to discharge the burden of proof and so requires a response from any appellant whose test entry is attributed to a proxy.
2. The burden of proving the fraud or dishonesty is on the Secretary of State and the standard of proof is the balance of probabilities.
3. The burdens of proof do not switch between parties but are those assigned by law.
11. In Varkey & Joseph (ETS – Hidden rooms) [2024] UKUT 00142 (IAC) which was promulgated in March 2024, it was held that:
1. The question for the Tribunal is always whether the respondent has discharged the burden of establishing whether it is more probable than not, that the individual acted dishonestly.
2. As the Tribunal said in DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 00112, it is clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person,
that is strong evidence that will weigh against the individual and calls for a credible explanation.
3. Issues in relation to the manner in which ETS Global internally addressed the concerns regarding the frauds does not impact upon the integrity of the process that was put in place by ETS following the revelations in the undercover BBC investigation for reviewing and
identifying those tests that are ‘invalid’ or ‘questionable’ at various test centres, or the audit trail by which the voice recordings were attributed to candidates.
26. In our judgment, headnotes (2) and (3) of DK & VK and headnote (1) of Varkey & Joseph are clearly statements of principle. The remaining cited headnotes are more nuanced.
27. Headnote (1) of DK & VK is an authoritative statement of principle, however it is predicated on the first clause of the headnote, i.e. that at the date of that decision the evidence put forward by the Secretary of State in ETS cases was amply sufficient to discharge the relevant burden of proof. That at least opens the door to the possibility of rebuttal evidence, available only since DK &VK, which may be so persuasive as to mean that headnote (1) was now out of date and should not be followed. (Note: we are not saying here that such evidence exists, merely that there exists a theoretical possibility that it could.)
28. Headnotes (2) and (3) of Varkey & Joseph are similarly nuanced and are statements of principles that are predicated on factual findings, that at least in theory could be rebutted by some future evidence.
29. Thus the true legal position is more nuanced than the Judge summarised at his [26] where he said “I consider myself bound to follow those authoritative statements”. His phrasing should have been expanded to make clear that some of the authoritative statements were predicated on factual findings and thus there was at least a possibility that some fresh evidence could undermine them. That was an error by the Judge.
30. Our task however is not to find whether or not the Judge made an error but whether he made a material error-of-law. Just because there is a theoretical possibility that there could be some evidence that would undermine the relevance today of aspects of DK & VK and Varkey & Joseph, does not mean that such evidence exists or was put forward as part of this case.
31. We note and have regard to, (as did the Judge), Halima Akter and ors v SSHD [2022] EWCA Civ 741 at [29] where it states:
There would need to be good reason, which would inevitably mean substantial fresh evidence, for another UT to revisit and overturn the determination [DK & VK]. This is not a situation, as Mr Wilcox suggested on behalf of HA, in which different Tribunals could reasonably reach different conclusions upon the same factual matrix.
32. Thus it is clear to us that the Court of Appeal considered the relevant matters settled in law, requiring “substantial fresh evidence” to revisit and overturn. In our judgment there is nothing in this case that constitutes, either individually or cumulatively, substantial fresh evidence. In summary, and in addition to our reasoning in Grounds 2 and 3, we find that the additional evidence was either already considered by DK & VK and Varkey & Joseph, or is that it is irrelevant because it amounts to showing that there exists examples in other fields where there are IT or other technical failures that lead to error. Although these specific examples may not have been before the Upper Tribunal in their previous judgments, we find that it would have been self-evident that technical errors do occur on occasion in some fields.
33. Therefore, whilst Ground 1 does amount to an error, in our judgment it does not amount to a material error-of-law which requires us to set aside the First-tier Tribunal’s decision. The Judge should have better phrased how he was treating the authorities. However, we find that he did go on to consider the generic evidence and we are satisfied that he applied Akter correctly.
Ground 2
34. We find that there is no error-of-law made in relation to Ground 2. It was open to the Judge to find at [22] that:
Most of the reports and articles are entirely unrelated to the subject matter of this appeal and are deployed to make general points about failings and inaccuracies that can occur in a variety of scenarios.
35. We find that this was an accurate characterisation of the generic evidence, as we stated above, examples in other fields where there are IT or other technical failures that lead to error do not assist a Tribunal in cases such as this one. The possibility of such an error was taken into account in DK & VK and Joseph & Varkey, and those judges would have taken judicial notice of the commonplace fact that technical and IT errors occur on occasions in different industries and settings. The generic evidence submitted in this case in our judgment amounts to no more than this.
36. Murcur LJ says in Akter at the beginning of [29] that:
I do not accept Mr Wilcox’s initial submission that DK and RK (2) has no precedential authority in establishing that the ‘generic’ evidence relied upon by SSHD in the ‘fraud factory’ cases is sufficient to satisfy the evidential burden, because it is neither a ‘starred’ nor a Countries Guidance case. The cases arise from the same factual matrix, “such as the same relationship or the same event or series of events.”
37. This was exactly what the Judge did in this case. He was faced with the same evidence from the Respondent and found the reasons put forward on behalf of the Appellant seeking to undermine that evidence to be unconvincing.
38. We find it was open for the Judge to deal with the generic material in the way that he did and find that Ground 2 does not amount to a material error-of-law.
Ground 3
39. We find that it was open to the Judge to characterise the Sutherland Report and the articles about SAT marking as irrelevant. This is because there is nothing in those documents that pertains to the particular Appellant in this case and that the documents significantly predate the leading cases of DK & VK and Varkey & Joseph and thus were available to be considered (if relevant) in those cases.
40. In our judgment, there is nothing in the documents put forward on behalf of the Appellant that come close to amounting to the ‘substantial fresh evidence’ as envisaged in Akter.
Conclusion
41. In summary, in our judgment none of the grounds of appeal amounts to an error-of-law such that the decision of the First-tier Tribunal should be set aside. Accordingly, the appeal is dismissed and the decision of the First-tier Tribunal dated 17 October 2025 is upheld.

Notice of Decision
The appellant’s appeal is dismissed. The decision of the First-tier Tribunal dated 17 October 2025 did not involve a material error of law and stands.

Judge Richards

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8th September 2026