Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000809
First-tier Tribunal No: HU/57095/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

YLBER SYLA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr J Collins, Sentinel Solicitors
For the Respondent: Mr A Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 24 April 2026

DECISION AND REASONS
1. For ease of comprehension, I shall refer to the parties as they were constituted before the First-tier Tribunal.
2. The Secretary of State appeals against the decision of First tier-Tribunal Judge Latta, allowing the Appellant's Human Rights Appeal. The decision was promulgated on 11 December 2025. The Secretary of State applies for permission to appeal, which was granted by First tier-Tribunal Judge Curtis in the following terms:
“An arguable error if made out. The Judge arguable erred by taking into account factors such as the expression of remorse or that the mandatory grounds might have had a hypothetically different outcome instead of looking retrospectively at what the Appellant did and whether, accordingly, this meant he fell to be refused on suitability grounds after the exercise, by the Respondent, of the discretion bestowed on her by the Rules. It was accepted after all that the Appellant had provided false information and as there was no dispute between the parties as to the precondition for S-LTR.4.2. being established. The Judge’s finding that the Appellant did meet the Rules because it was irrational to refuse on suitability grounds, inarguably effected the proportionality assessment”.
3. The Appellant did not provide a Rule 24 response but indicated that the appeal was opposed. As an aside, the parties agreed that if the Suitability issue was made out by the Secretary of State, then this would impact upon the proportionality of the outcome of the appeal and it would need to be remitted to the first year tribunal; and vice versa, if the Suitability issue was not made out, then there could be no question that the proportionality assessment was incorrect.
Findings.
4. At the close of the hearing, I reserved my decision, which I shall now give. I do not find that there is an error of law in the decision, such that it should be set aside. My reasons for so finding are as follows.
5. In relation to the sole ground of appeal drafted by the Respondent’s Specialist Appeals Team, the chief complaint is that the judge materially erred in law by failing to correctly consider the Suitability requirements of paragraph S-LTR.4.2. of the Immigration Rules, when finding that the Appellant does not fall to be refused on Suitability grounds. The grounds place reliance on the fact that there was no dispute that the opponent used a false name, date of birth and nationality when he arrived in the UK, on 23 July 2003 and further argue that the judge fell into error in relation to paragraphs 35 and 36, which demonstrate that the judge failed to consider the actual requirements of paragraph S-LTR.4.2. and instead based his assessment on paragraph S-LTR.1.4. which concerns an entirely different question of suitability.
6. In relation to the first argument that the judge failed to consider the actual requirements of paragraph S-LTR.4.2., the grounds are misleading in that they completely fail to refer to the fact that the judge noted at paragraph 22 the parties’ submissions including that the Suitability issue concerned a discretionary, not a mandatory, ground for refusal. Thus, the judge was plainly aware of the nature of the rule and that it was couched in terms of discretion, rather than a mandatory refusal. The grounds of appeal also failed to draw attention to the fact that the judge inserted the entirety of the relevant rule and its discretionary nature at paragraph 32 of the decision. Thus, it cannot be correct that the judge failed to consider the actual requirements of the rule, having set out the rule before turning to his reasons for finding in the appellant's favour when discussing this issue at paragraph 33 to 36 of the decision.
7. Turning to the Secretary of State's objection to the judge referring to paragraph S-LTR.1.4. in his decision, Mr Sheikh made clear that it was not open to a judge to consider other rules in relation to the suitability issue when exercising discretion and the judge was only bound by the particular facts of the case. At the outset, it is important to note that the factual basis for the judge’s findings was not criticised in any way by the Respondent and the factual premise of the judge’s reasoning and decision on discretion is factually correct. In my view the judge has not conflated the rules when making his assessment, nor impermissibly looked at a discretionary rule when making his assessment in relation to suitability. It is plain to me that, in reaching his own opinion on suitability and in reviewing the Respondent’s exercise of discretion, the judge has examined the facts in question against the yardstick of a mandatory rule where an action or breach has occurred which would invariably result in refusal of leave to remain. In my view, what the judge is doing is permissibly comparing the mandatory suitability rules with the discretionary ones in order to put the question of suitability into context and in order to better understand how the Respondent holistically views the exercise of discretion. I find that the judge was plainly using rule S-LTR.1.4. as a yardstick to assess the logic and rationality of the suitability decision that the Secretary of State has made. In other words, and as set out in paragraph 35, if a migrant who by virtue of having committed a crime and thus being sentenced to imprisonment for less than 4 years but at least 12 months – and is therefore a criminal and in a far worse position as regards their suitability – would not be refused leave to remain on the grounds of suitability after 10 years had passed since the end of their sentence; then it cannot stand to reason that a migrant who has not committed and been convicted of a criminal offence, but who has used false representations according to the immigration rules, is of worse character or unsuitable for a grant of leave to remain after a similar period of time has passed since their misdeed. In short, the judge is implying they should be at least afforded the same generosity in terms of their character no longer being unsuitable, particularly as their unsuitability was not as egregious as that of a convicted criminal in the first place. It appears that the judge was also exercised by the fact that, if a criminal could be given leave to remain once 10 years had passed since the end of their sentence, then here in the instant scenario, where over 20 years have passed since the immigration breach in question, that passage of time, being double that which it would take for a criminal to automatically be deemed suitable for a grant of status, should also be taken into account. There is an undeniable logic and sense to the judge's reasoning in my view and it appears to me perfectly open to a judge to take account of the Respondent’s views on suitability in other scenarios in order to understand how discretion could be applied in the one faced by the judge given that he needed to make an independent assessment on appeal. The Secretary of State's position on appeal was that if an appellant previously used false representations in an application, this was enough to warrant discretion never being exercised in his favour. However, if that were correct, it would mean that no discretion could ever be exercised in that person’s favour, which is not what is stated on the face of the rule as laid before Parliament. Therefore, I find that the judge’s approach was open to him and not perverse as it demonstrates that the judge tried to understand how to exercise discretion which was open to him to do. In short, it was patently open to the judge to make these findings when evaluating how to exercise discretion for himself as an independent judge.
8. Finally, turning to a side issue raised in the grounds of appeal as to whether or not the Tribunal is entitled to appraise the exercise of discretion for itself on appeal, I find that the Respondent's reliance upon the decision of Marghia (Procedural fairness) [2014] UKUT 00366 (IAC) is entirely misplaced. Marghia does not establish that the Tribunal is prohibited from appraising the Respondent’s exercise of discretion for itself on appeal. The headnote makes clear that the guidance concerns the exercise of discretion in terms of the Secretary of State's residual discretion, not her rule-based discretion. As stated in Marghia, "…It is a matter for the Secretary of State whether she excises her residual discretion. The exercise of such residual discretion, which does not appear in the Immigration Rules, is absolutely a matter for the Secretary of State and nobody else, including the Tribunal – Abdi [1996] Imm AR 148". Thus, given that the discretion here reviewed by the judge was a rule-based discretion, as opposed to the Secretary of State's residual discretion, I see no force nor merit in this argument.
9. As indicated at the outset, the parties agreed that if suitability was not made out by the Secretary of State, then the appeal was unimpeachable in relation to the judge’s human rights assessment. I therefore do not go on to assess the proportionality outcome given that the suitability assessment is free of any material error of law.
10. In light of the above findings, I find that there is no merit in the grounds and that the decision is free from legal error.

Notice of Decision
11. The decision of the First-tier Tribunal shall stand.
12. The appeal to the Upper Tribunal is dismissed.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 May 2026