Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000687
First-tier Tribunal No: HU/51061/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

Olti Cuka
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Y. Alhani, Counsel
For the Respondent: Mr K. Ojo, Senior Presenting Officer

Heard at Field House on 20 April 2026

DECISION AND REASONS
Introduction and procedural history
1. This is an appeal by Mr Cuka against the decision of the First-tier Tribunal dated 27 November 2025 which rejected his appeal against the decision of the Respondent dated 29 January 2024 refusing to grant him leave to remain.
2. The Appellant is a citizen of Albania and entered the UK illegally on 3 October 2019. On 19 November 2019 he applied for permission to stay in the UK on private life grounds.
3. His case on appeal at the First-tier Tribunal centred on his claims that he had formed ties with his brother’s family that exceeded normal emotional ties; that there very significant obstacles to his integration in Albania; and that there was no public interest in his removal to Albania.
4. The Appellant was legally represented at the First-tier Tribunal and gave oral evidence, as did his brother. They were assisted by an Albanian interpreter.
5. The First-tier Tribunal Judge (“the Judge”) found that the Appellant had not discharged his burden of proof on the balance of probabilities that there are very significant obstacles to his reintegration. The Judge also found that the Appellant’s ties to his relatives in the UK did not go beyond normal emotional ties and that there was a public interest in his removal to Albania.
6. The Judge concluded at [36] that:
“… I find that the maintenance of the refusal decision will not have unjustifiably harsh consequences for the appellant or any member of his brother’s family. The decision strikes a fair balance between, on the one hand, the rights and interests of the appellant, and, on the other hand, the wider interests of society. There is a strong public interest in requiring an illegal entrant to return to his or her country of origin.”
7. The Appellant applied for permission to appeal the First-tier Tribunal’s decision and on 11 February 2026 a different Judge from that who made the initial decision granted permission on all grounds.
8. The case came before me at on oral hearing where I considered the bundle of 128 pages and submissions from both parties. Both parties confirmed they had access to the relevant documents. The submissions have been audio recorded and I am thus not repeating them in detail here.
9. There has been no anonymity order made in this case and no application for one was made at the hearing. In my judgment, having regard to Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, the strong public interest in open justice means that there should be no anonymity order in this case.
10. At the conclusion of the hearing I said that I would reserve judgment, which I am now providing here.
Grounds of appeal
11. The grounds have had various enumerations throughout the course of proceedings, and thus I have numbered them below in a way that makes them easy to follow and understand.
12. Ground 1 states that the Judge failed to adequately assess the ‘very significant obstacles’ test by failing to make a broad evaluative judgment by only founding their judgment on the issues of accommodation and the theoretical availability of family support.
13. Ground 2 states that the Judge made an irrational finding at [30] that the GP’s notes of 27 February 2024 are not consistent with the Appellant’s claim to have suffered abuse in Albania. It was argued on behalf of the Appellant that this is material because it infects the Judge’s: findings on the Appellant’s credibility; findings on the Appellant’s brother’s credibility; and the assessment of ‘very significant obstacles’.
14. Ground 3 states that there was a procedural error whereby the Judge failed to put an alleged inconsistency in the Appellant’s evidence, relating to where his wife’s parents lived, to him.
15. Ground 4 states that the Judge failed to apply section 55 of the Borders, Citizenship and Immigration Act 2009 by failing to treat the best interests of affected children as a primary consideration. It was stated that the Judge failed to identify what the best interests were and failed to weigh those against the public interest.
Error-of-law
Ground 1
16. This Ground is founded on the argument that the Judge failed to apply a broad evaluative judgment, as per Kamara v SSHD [2016] EWCA Civ 813, by focussing solely on the two issues of accommodation and family support.
17. However the decision needs to be read holistically, in my judgment the Judge has analysed other relevant issues. For example the issues of health and potential work were considered at [31] where the Judge says
“… as he is not in any way physically disabled. Working on the farm is also likely to promote the mental health.”
18. The Judge also considered the Appellant’s mental health in relation to how it may impact him if returned to Albania in [29].
19. Although not appearing under the heading “discussion and findings”, elsewhere in the judgment the Judge refers to a number of other potentially relevant factors – such as the age of the Appellant and the amount of time he has previously spent in Albania. Further, the Judge makes adverse credibility findings against the Appellant’s brother in [31] (and [33]) indicating that he had considered and was not placing significant weight on his evidence that supported the Appellant’s case on integration.
20. In my judgment the Judge did not conduct a deficient assessment of ‘very significant obstacles’ when finding in [32] that “the appellant has not discharged the burden of proving on the balance of probabilities that there are very significant obstacles to his reintegration on account of his mental ill-health or for any other reason” and has provided adequate reasons for his findings in this respect.
Ground 2
21. The paragraph that was complained of in this Ground is [30] which states:
“I note that in the GP’s referral of 27 February 2024, she says that the appellant disclosed to her “HX abuse in Albania”, which he had never disclosed to anyone previously. In that context, she recommended that he receive psychological support/therapy to help him process and cope with that abuse. But she also recorded that the appellant had no previous history of medical and psychological symptoms, which is not consistent with the claim that he had suffered abuse in Albania.”
22. The argument put forward on behalf of the Appellant is that the Judge’s reasoning failed to engage with the possibility of delayed disclosure of trauma and emphasizes that a person may have suffered historical abuse and nonetheless report that they have no prior medical history, because they have not previously sought help for it.
23. However in my judgement this argument is to misconstrue what the Judge actually found. The inconsistency the Judge found was between the claim that he had suffered abuse in Albania and that “the appellant had no previous history of medical and psychological symptoms”. This is not the same as the Appellant having no recorded history of medical and psychological symptoms. A natural reading of the GP’s records, within the context of the purpose they were written, i.e. a medical one not a legal one, is that he had not experienced symptoms previously. Thus this Ground fails, as it does not engage with the actual finding of the Judge, it engages with a putative late disclosure of trauma rather than the GP’s note on the previous lack of symptoms.
24. In my judgment the finding that the Judge made was rationally open to him, and he has provided adequate reasons for it.
Ground 3
25. It is not disputed that there was an inconsistency in the oral evidence, what is being challenged was the Judge not putting this inconsistency directly to the witness.
26. When considering this Ground I have regard in particular to Abdi, Abdi & Hassan v Entry Clearance Officer [2023] EWCA Civ 1455 where it says at [29-30]:
“HA v Secretary of State for the Home Department (No 2) [2010] SC 457 [2010] CSIH 28 was a decision of an Extra Division of the Inner House of the Court of Session presided over by Lord Reed (now PSC), who delivered the Opinion. It made a number of general points about procedural fairness in the context of immigration cases, amongst which the following emerge at [4]-[13]. Subject to the procedural rules governing first instance tribunals, the tribunal has power to decide the procedure it adopts, but in doing so must act fairly. What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. See [4] and [13]. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter (see [7]). As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [8]). There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]).
In The Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173 [2004] 176 Imm AR, Schiemann LJ delivered the judgment of this court. He drew attention to the difficulties often faced by those sitting at first instance in immigration cases. Of relevance to the present appeal are the following observations. There are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case (at [6]). A failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point (at [4]). Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds (at [5]).” (my emphases)
27. The case law above is clear that the fairness of a judge not putting a particular point to a witness is a case specific matter. However it stresses that there is no general obligation on a judge during a hearing to tell the parties what parts of the evidence in particular they think are important; that there will generally be no unfairness in not drawing attention to a point which the Appellant could reasonably expect to be plainly relevant to the key decisions in the case; and that usually the tribunal can remain silent, especially if the party is represented.
28. In the context of this case, the credibility of the witness was an important issue in the case and in my judgment that will have been obvious to both parties during the hearing. Further, the Appellant was represented at the hearing and the representative had an opportunity to make submissions on the inconsistency or seek the leave of the Tribunal to put that point to the witness.
29. I am satisfied that it was open to the Judge to act as he did, and that R v SSHD ex p Robinson [1997] 3 WLR 1162 is not engaged here as was argued on behalf on the Appellant. It was sufficiently fair for the Judge not to put the inconsistency to the witness in the context where the inconsistency would plainly have been obvious and the Appellant was represented.
Ground 4
30. This ground is put on the basis that the First-tier Tribunal has a mandatory non-delegable duty to treat the best interests of affected child as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009 and that the requirement stems from ZH (Tanzania) v SSHD [2011] UKSC 4.
31. However ZH (Tanzania) does not represent the current legal position on this matter. The current position is set out in CAO v SSHD (Northern Ireland) [2024] UKSC 32 as follows at [62-64]:
“Section 55(1) and (3) do not, according to their terms, apply to the FTT. There is no basis on which the FTT can be said to be subject to the duties set out in them. Section 55(1) imposes a duty on the Secretary of State to make arrangements in relation to matters in which the FTT has no role to play. Section 55(3) imposes a duty on the Secretary of State and various officials in relation to functions exercised by them, not on the FTT in relation to its functions.
Since the FTT is obliged by article 8 and section 6 of the HRA to treat the best interests of a child who is affected by its decision as a primary consideration, its decision-making will in practical terms cover the matters to which section 55 is directed. But that is very different from saying that the FTT is itself subject to any duty under section 55(1) or (3). The FTT may validly consider how those exercising immigration functions have addressed the best interests of the child utilising the Guidance when assessing the evidence adduced before it. However, there is no need for the FTT to be subject to the duties in section 55 in order to ensure that its decision-making is properly directed to consideration of the best interests of the child.
With respect, therefore, we cannot agree with Baroness Hale’s obiter comment in ZH (Tanzania) [2011] 2 AC 166, para 24, which implies (without saying in terms) that the FTT itself has to comply with either of the duties in section 55(1) or (3)…”
32. In my judgment the Judge has considered and evaluated the effect that the Appellant’s removal would have on his nieces, and that he has treated their best interests as a primary consideration. This is evident in the following excerpts, considered cumulatively, from his judgement:
a. “It is credible that the oldest [niece] has become emotionally attached to the appellant, it is not shown that she has become emotionally dependant on him” [33]
b. “I am also not persuaded that the appellant has become a surrogate parent to either [niece]” [33]
c. “There are not additional elements of dependency going beyond normal emotional ties.” [33]
d. “The best interests of minor children affected by immigration decisions are a primary consideration in the proportionality assessment. Whilst the eldest [niece] will be disappointed by the appellant having to leave the household to go back to Albania, there is no reason to suppose that this will imperial her welfare or well-being. Her mother is her primary care-giver, and she is also fully supported by her father.” [34]
e. “The appellant does not have an essential role as a carer for the children.” [34]
33. It was also conceded by Mr Alhani that the youngest niece was only around 1 year old thus by nature of her age and that her mother is her primary care-given and she is fully supported by her father, that any emotional ties she has with the Appellant would be limited.
34. Thus it was open to the judge to consider the best interests of the two nieces in the way that he did.
Conclusion
35. In my judgment, none of the Grounds, taken individually or cumulatively, are made out and there is no error of law in the First-tier Tribunal’s judgment. It was open to the Judge to conduct the hearing and write up his judgment in the manner that he did and it would be wrong for the Upper Tribunal to interfere with it. Thus the appeal is dismissed.

Notice of Decision
The appellant’s appeal is dismissed. The decision of the First-tier Tribunal dated 27 November 2025 did not involve a material error of law and stands.

Judge Richards

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 April 2026