Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000696
First-tier Tribunal No: HU/67308/2023
LH/08257/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of May 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

MS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Jones, counsel instructed by Baya Immigration Legal Services
For the Respondent: Mr M Pugh, Senior Presenting Officer

Heard at Field House on 1 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant, a national of Iran, first entered the United Kingdom on 12 January 2012 and has had lawful leave to remain ever since. On 24 May 2023 she made an application for indefinite leave to remain on the basis that she had accrued 10 years’ continuous lawful residence.
2. The respondent refused the application on 14 November 2023. The Immigration Rules in force at the time of the application provided that continuity would be considered as broken if an applicant were absent from the UK for more than six months at a time or for more than 18 months (548 days) in total. The respondent concluded that during the claimed 10 year period, the appellant had spent more than 6 months outside the UK at once and, adding her absences together, 1,088 days outside the UK in total. Furthermore:
In your cover letter you have asked for discretion to be applied to some of the absences due to ill health. You have advised that you had to return to Iran for medical treatment for cancer and mental health problems. You have stated that the NHS failed to pick up on your cancer issues. No evidence of this has been provided.
A senior officer has assessed the evidence that you have provided, and they have decided that discretion will not be applied to any of the absences.
As such, your continuous residence in the UK is considered to be broken with reference to paragraph 276A(a)(v).
3. It was also decided that the appellant would not face very significant obstacles to integration in Iran, and nor would refusal of the application be a disproportionate interference with the right to respect for private life afforded by Article 8 ECHR.
4. The First-tier Tribunal heard an appeal against the refusal decision on 10 October 2025. The appellant argued that the respondent had failed to properly apply the discretion to disregard absences, set out in caseworker guidance at the time of decision and since incorporated into the rules themselves. Further material was provided in support of the appellant’s circumstances, such that the evidential case she presented to the FtT can be relevantly summarised as follows:
a. The appellant entered the United Kingdom on 12 January 2012 with leave as a student and later completed a PhD in Persian Studies at the University of Cambridge in or around 2016. She thereafter progressed into teaching and, from 2018, into business activity under the Graduate Entrepreneur route.
b. In 2013, whilst in the UK she was initially treated for hypothyroidism by her GP. Dissatisfied, she visited her doctor in Iran for further investigations. A malignant thyroid carcinoma was diagnosed and she underwent total thyroidectomy on 21 October 2013 with subsequent radioactive iodine treatment, all in Iran. This diagnosis and treatment are confirmed by oncology evidence and contemporaneous pathology reports. Follow‑up oncology engagement occurred both in Iran and subsequently in the UK.
c. Between 2014 and 2016 she remained under oncological monitoring, with evidence indicating an ongoing risk of recurrence requiring periodic follow‑up, largely undertaken in Iran where initial treatment had occurred.
d. In 2017–2018 there were renewed concerns as to possible recurrence, including abnormal lymph nodes requiring investigation. During this period the appellant also developed significant mental health problems. A report from a Dr Alibeigi confirms a diagnosis of Major Depressive Disorder from June 2017, with panic attacks and suicidal ideation, and records sustained psychotherapy in Iran between 2017 and 2018. With a mind to protective factors against significant suicidal ideation, Dr Alibeigi advised her to remain in Iran during that treatment.
e. Thereafter, between 2018 and 2022, the Appellant continued to undergo both physical and mental health monitoring in Iran, including thyroid investigations, ultrasound, sonography and treatment. Further gynaecological conditions arose (fibroid requiring open surgery in Iran in 2021) together with PCOS and related treatment; UK records also reflect ongoing management, including endocrine and general practice follow‑up.
f. Mental health symptoms persisted intermittently. UK records and Dr Alibeigi’s reports document recurrent panic attacks, anxiety and pharmacological intervention, together with referral to NHS talking therapies. The period of September 2018 to January 2019 was described by Dr Alibeigi as presenting “significant recurrence of MDD and risk of suicide”.
g. In late 2022 to early 2023 the appellant returned to Iran in part due to concerns regarding her father’s health, including a suspected cancer recurrence.
h. Finally, in 2023–2025 the Appellant pursued an application for indefinite leave to remain. She thereafter raised a complaint against her former immigration adviser, alleging that she had been wrongly advised that she could not extend her Tier 1 leave due to not meeting employment requirements and had not been informed of applicable Covid‑related concessions that could have resulted in a grant of further leave, resulting in her pursuing the long residence route instead that led to the present refusal decision. There is evidence that a complaint was made to the adviser and pursued to the IAA.
5. The FtT dismissed the appeal, and the appellant appealed in turn to the Upper Tribunal. The FtT granted permission on (or, as I shall set out later, intended to limit permission to) two grounds, being (i) a failure to take the above matters into account when considering the discretion to disregard absences and (ii) a failure to take them into account when determining Article 8 proportionality.
6. Having heard Mr Jones’ arguments, Mr Pugh conceded that the FtT had erred as set out at (ii), and that the decision must be set aside. This was a sensible concession. The appellant’s circumstances, as set out above, were plainly relevant considerations when deciding proportionality. While the FtT was not required to refer to every potentially relevant consideration or set out each and every step in its reasoning, the appellant is entitled to understand why her obviously serious circumstances were considered insufficient to tip the balance in her favour.
7. Throughout its analysis, the FtT referred in general terms to the appellant’s “mental health problems”. The only direct engagement with those problems was as follows:
62. The appellant left UK on 13/10/17 and returned more than six months later on 3/6/18. The appellant states that she spent time in her native country, Iran, and that this stay was necessitated by therapy for panic attacks she had begun experiencing during her PhD. The respondent has taken this into account and has not applied discretion to find that the appellant was prevented from returning to the UK.
8. The passage “necessitated by therapy for panic attacks she had begun experiencing during her PhD” is drawn from a single line in the appellant’s statement, but detached from its context, where it served only to introduce more serious and detailed evidence: the appellant had been diagnosed with Major Depressive Disorder; Dr Alibeigi advised her to stay in Iran to protect against a significant risk of suicide; and the deterioration in her mental health arose from the cancer diagnosis and its aftermath rather than her studies. It is plainly an inadequate summary of the appellant’s problems upon which to found an analysis of her arguments, yet that is what the FtT appears to do.
9. The FtT continued:
63. Whilst the appellant’s medical evidence is extensive, I do not find that the appellant was prevented from returning to the UK through unavoidable circumstances during this time. The appellant has sought medical treatment in Iran and UK at various times. In cross examination she accepted that her decision to get treatment in Iran was her choice.
10. There is no further evaluation of the severity of the appellant’s problems or the barriers they posed to resuming her residence in the UK. The phrase “unavoidable circumstances” is likely taken from the respondent’s guidance, which provides that:
If the applicant has been absent from the UK for more than 6 months (184 days) in one period or more than 18 months (548 days) in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.
11. I consider that the FtT either failed to take account of the medical evidence on why the appellant stayed in Iran for treatment, or took the appellant as doing so “by choice” because she could, in principle, have defied Dr Alibeigi’s treatment plan and risked her mental health and safety to return to the UK. The former discloses an error of law that was potentially material to the outcome. So too does the latter, given the absence of any reasoned justification for apparently setting the threshold at literal impossibility; as argued by Mr Jones, the remainder of the guidance also places significance on other issues such as whether the absences occurred towards the beginning or end of the period. While I have focused on the appellant’s mental health, similar criticisms can be levelled at the consideration of her physical health and the timings and natures of the various procedures she underwent.
12. Furthermore, the appellant had relied on the disadvantages to her immigration status caused by the claimed failings of her previous immigration adviser. While the FtT mentioned the issue as part of its credibility assessment, it failed to address whether it was established and its significance to proportionality: Mansur (Immigration adviser's failings, Article 8) [2018] UKUT 274 (IAC).
13. The above provides a sufficient basis upon which the decision should be aside. I should record two other issues. First, Mr Pugh’s concession did not extend to every argument made by Mr Jones as to how the FtT should have approached the excess absences. This is a matter that should be decided when the decision is re-made.
14. Second, it appears that the permission judge intended to refuse permission on another ground, asserting that the FtT had failed to properly consider evidence in relation to a finding that part of the appellant’s account was exaggerated, but the notice of decision granted permission without limitation: Safi & Ors (permission to appeal decisions) [2018] UKUT 388 (IAC). Mr Jones indicated that he was content to rely on the two grounds already discussed. I do consider that the impugned finding cannot be fairly disentangled from the failure to properly consider the appellant’s circumstances. The remitted consideration of the appeal should be conducted afresh with no facts preserved.
15. The parties were agreed that the appeal should be remitted to the First-tier Tribunal. Given the extent of fact-finding required and that retaining the appeal in the Upper Tribunal would deprive the appellant of the two-tier appellate structure, I agree. I continue the anonymity order made by the First-tier Tribunal, as the harm to the appellant’s mental health that her identification could cause justifies derogation from the principle of open justice.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by a different judge.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 April 2026