Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000997
First-tier Tribunal No: HU/52915/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th September 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

Daljit Singh
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Alam, Counsel, instructed through Direct Access
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 8 September 2026

DECISION AND REASONS

1. This is the re-making of the decision in the appellant’s appeal, following the setting aside of the decision of the First-tier Tribunal which had dismissed the appellant’s appeal on human rights grounds.

2. The appellant is a citizen of India, born on 16 August 1988. He arrived in the UK on 14 November 2009 with leave to enter as a student, valid until 31 July 2012. On 16 July 2012 he applied for leave to remain as a student and was granted leave until 5 September 2013. That leave was extended on the same basis until 15 May 2015, following an application made on 3 October 2013. However the appellant’s leave was curtailed on 27 October 2014 when the respondent served him with a notice of liability to removal under section 10 of the Immigration and Asylum Act 1999, in form IS.151A, on the grounds that he was considered to be a person who had sought leave to remain in the United Kingdom by deception. The allegation of deception was made on the grounds of the appellant having submitted a TOEIC English language certificate which the respondent considered to have been fraudulently obtained by the use of a proxy test taker. His scores from the test taken on 27 June 2012 were cancelled by ETS. The appellant then applied, on 20 November 2015, for leave to remain outside the immigration rules, in order to obtain a new Tier 4 sponsor. However that application was refused by the respondent on 23 February 2016, on the grounds that he was applying for leave for a purpose not covered by the immigration rules and on the basis of his having previously obtained a TOEIC certificate fraudulently. The appellant sought, unsuccessfully, to judicially review that decision, and the decision was upheld in June 2016.

3. On 28 February 2024 the appellant made a human rights claim in an application for leave to remain in the UK under Appendix FM of the immigration rules on the basis of his family life with his wife Jaspreet Kaur Sehmi, a British citizen whom he had met in 2018 and married on 20 November 2022. His application was refused on 4 March 2024. The respondent considered that the appellant’s application fell for refusal on grounds of suitability under section S-LTR: under S-LTR.4.2 of Appendix FM, because he had submitted a TOEIC certificate with his applications of 16 July 2012 and 4 October 2013 which had been fraudulently obtained; and under S-LTRP.4.4 because he had failed to pay a litigation debt of £646. The respondent considered further that the appellant did not meet the eligibility immigration status requirement of the rules because he had remained in the UK without valid leave since the expiry of his student leave on 15 May 2015. The respondent considered that the appellant could not meet the requirements in paragraph EX.1 of Appendix FM since, although it was accepted that he had a genuine and subsisting relationship with his partner, it was not accepted that there were insurmountable obstacles to family life continuing outside the UK. The respondent did not accept that the appellant had lost all ties to India and considered that he could return to India with his wife or apply to re-enter the UK through the correct means of entry clearance whilst his partner remained in the UK. The respondent did not accept that there were any very significant obstacles to the appellant’s integration in India for the purposes of Appendix PL and considered there to be no exceptional circumstances under paragraph GEN.3.2 of Appendix FM which would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for him or his family.

4. The appellant appealed against the respondent’s decision. His appeal was heard by a First-tier Tribunal Judge on 10 December 2025. The respondent had by then withdrawn the refusal under S-LTRP.4.4, in her respondent’s review, because the appellant had since paid the litigation debt. With regard to the refusal under S-LTR.4.2 the judge found that, whilst the respondent had discharged the evidential burden in relation to the fraud allegation, she had failed to establish that the appellant's prima facie innocent explanation was to be rejected. The judge found that the respondent had not, therefore, demonstrated that the appellant's TOEIC English language test certificate had been fraudulently obtained by the use of proxy test taker, and accordingly concluded that the suitability provisions of the immigration rules did not apply. The judge went on to consider Appendix FM of the immigration rules. He considered that there were no insurmountable obstacles to family life being enjoyed outside the UK, for the purposes of EX.1 and EX.2 of Appendix FM. With regard to Article 8 outside the rules, the judge accepted that the appellant had established a private and family life in the UK and that his exclusion from the UK would interfere with his private and family life, such that Article 8 was engaged. He found, however, that little weight should be given to a relationship with a qualifying person that was established by a person at a time when the person was in the United Kingdom unlawfully, and concluded that the appellant had failed to demonstrate that his removal would be disproportionate. He accordingly dismissed the appeal.

5. The appellant sought permission to appeal to the Upper Tribunal against that decision on three grounds. Firstly that, having found that the TOEIC allegation was not made out, and given that the eligibility relationship requirements, financial requirements and English language requirements of the immigration rules were all met, the judge was required to consider, but had failed to consider, the proportionality of requiring him to apply for entry clearance from outside the UK, in accordance with the principles in Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. Secondly that, having found that the TOEIC allegation was not made out, the judge had failed to take into account, in the proportionality assessment, the injustice of the appellant’s leave having been cancelled as a result of the allegation. Thirdly, that the judge had failed to take into account relevant factors in the proportionality assessment, including the impact on the appellant’s partner, if he was removed.

6. Permission was granted in the First-tier Tribunal. The respondent produced two rule 24 responses opposing the appeal.

7. The matter then came before Deputy Upper Tribunal Judge Kelly on 19 May 2026. In a decision promulgated on 13 July 2026, DUTJ Kelly set aside the First-tier Tribunal’s decision on the following limited basis:

“Analysis

10. The first ground is unarguable given the decision in Alam & Anor v Secretary of State for the
Home Department [2023] EWCA Civ 30 in which it was held that Chikwamba is only relevant when an application for leave is refused on the narrow procedural ground that the applicant must leave the United Kingdom and apply for entry clearance. The assertion made in the third ground is simply wrong given that the First-tier Tribunal judge expressly considered, at paragraph 15, the impact upon his partner of the appellant’s removal as it was advanced by his representative at the hearing.

11. I intend no disrespect to Mr Terrell when I say that I at times found his exposition of the respondent’s position concerning the second ground of appeal difficult to follow. The respondent’s original Rule 24 Notice (of which he is not the author) is dated the 6th March 2026. At paragraph 7, it argues that the appellant had failed to show “how the alleged wrongful operation of the Secretary of State’s functions caused them to suffer a particular disadvantage, capable of affecting the proportionality assessment”. Moreover, at paragraph 7 of his own “supplementary” Rule 24 Notice (uploaded on the day before the hearing), Mr Terrell argued that this proposition was supported by the decision of Gurung & others (Gurkhas, historic injustice, Article 8 Nepal [2026] UKUT 191 wherein the Tribunal emphasised the importance of a causative link between the original injustice and the appellant’s current circumstances when determining the weight to be attached to the former in conducting a proportionality assessment under Article 8. It thus came as something of a surprise when Mr Terrell conceded at the hearing that the judge had materially erred in law by failing to consider the impact upon the appellant’s human rights claim of what she found to be the respondent’s wrongful decision to curtail an earlier grant of leave to remain (the decision to curtail being in turn based upon what the judge found to be the respondent’s erroneous finding of fraud). Given the respondent’s earlier emphasis upon the apparent want of a causative link between the curtailment of leave to remain in October 2014 and the appellant’s current circumstances, I pressed Mr Terrell to explain why he was now conceding that the former was potentially relevant to the latter. Having taken a short time for reflection, Mr Terrell rightly pointed out that the only reason the respondent had found it necessary to consider whether the appellant met the high bar for leave to remain under Section EX and paragraph Gen.3.2 of Appendix FM of the Immigration Rules was because the appellant’s apparent overstay of his leave to remain had meant that he was unable to meet the immigration status eligibility requirement. The extent to which curtailment of the appellant’s leave in October 2014 contributed to that inability, and thus the weight attaching to it within the Article 8 proportionality assessment, is debatable. I am nevertheless unable to say that the failure to place it in the proportionality balance was immaterial to the outcome of the appeal and I am accordingly persuaded that the decision of the First-tier Tribunal to dismiss the appeal should be set aside.

12. However, the subsequent discussion concerning the future disposal of this appeal threw up a
further complication in the respondent’s position. This was because Mr Terrell now indicated that he wished to challenge the very factual finding – that the respondent had failed to prove that the appellant employed fraud in obtaining his English language certificate - upon which he had earlier based his concession that there was a material error of law in the decision to dismiss the appeal. He accordingly invited me to remit the appeal to the First-tier Tribunal for a complete rehearing of the evidence rather than to reassess the Article 8 claim in the Upper Tribunal upon preserved facts. The basis upon which he sought to challenge the judge’s findings in this regard is set out at paragraphs 3 and 4 of his “supplementary” Rule 24 Notice, which he only uploaded on the day before the hearing. There as several problems with this Notice. Firstly, it was served in breach of the direction issued by the Tribunal requiring that any Rule 24 Notice was to be served within 28 days of the 4th March 2026; that is to say, by no later than the 1st April 2026. The Notice was accordingly served over six weeks late and would require an extension of time for it to be relied upon. Secondly, it is not in truth a “supplementary” notice given that it seeks to raise, for the first time, an entirely new issue. Thirdly, if the respondent wished to challenge the judge’s finding in this regard, it was in my judgement appropriate to have done so on the ground that the decision to dismiss the appeal should be upheld “for reasons other than those given by the Tribunal” (to quote from Rule 24(1B)(a) of The Tribunal Procedure (Upper Tribunal) Rules 2008) rather than conceding that the decision to dismiss should set aside and the appeal completely reheard. Mr Terrell did not formally apply to extend the time for service of the Notice. I have nevertheless considered the matter on this basis in line with the well-known approach adumbrated in Denton v TH White Ltd [2014] EWCA Civ 906. Mr Terrell frankly acknowledged that the delay was serious. However, he in effect submitted that the delay was not significant because the Notice raised a matter of law that was both obvious and beyond contradiction. I disagree. Fairness in my judgement required the appellant to be given a reasonable opportunity to argue that the First-tier Tribunal’s finding was free from legal error and should therefore be preserved. Raising the matter on the day before the ‘error of law hearing’ plainly did not provide that opportunity. Mr Terrell did not explain the delay. It may well have been occasioned by him recently taking over conduct of the appeal from the person who drafted the original Notice. It nevertheless remains the case that no good and sufficient reason has been advanced for the delay. Finally, I have considered all the circumstances, including (a) the need to conduct litigation efficiently and at appropriate cost, (b) the need to enforce compliance with the Tribunal Procedure Rules, and (c) all the matters that I have set out above. I have accordingly decided to refuse to extend the time for serving the respondent’s ‘Supplementary Rule 24 Notice’.

13. The upshot of all this is that I have decided (a) to set aside the decision of the First-tier Tribunal to dismiss the appeal whilst preserving its primary findings of fact, and (b) to re-assess the appellant’s claim under Article 8 of the European Convention of Fundamental Human Rights and Freedoms in the Upper Tribunal at a further hearing.

Notice of Decision

1. The appeal is allowed.
2. The decision of the First-tier Tribunal to dismiss the appeal is set aside.
3. There will be a further hearing in the Upper Tribunal to determine the appellant’s rights under Article 8 of the European Convention of Fundamental Human Rights and Freedoms at which the primary findings of fact made by the First-tier Tribunal will be preserved..”

8. The matter then came before me to re-make the decision in the appellant’s appeal, following the issue of a transfer order.

9. A consolidated bundle was produced for the hearing which included updated statements from the appellant and his wife and evidence relating to the appellant’s wife’s recent pregnancy and unfortunate miscarriage. Both referred to the fact that they had been trying for a baby since their marriage and were currently receiving fertility treatment, and to the fact that the appellant’s wife had recently suffered a miscarriage. In his statement the appellant stated that his father had passed away when he was 11 and his relationship with his mother was not good and that he was taken care of by his grandmother, who passed away in 2017. The appellant denied having fraudulently obtained his TOEIC certificate and stated that he had been totally unaware of the allegation since the solicitor he used for his appeal and judicial review had not disclosed that to him, and that he had been a victim in the matter. He stated that if he had not been accused of being fraudulent he would have been able to secure his visa and complete his education and then obtain a good job. He had always intended to continue his studies, get a good job and pay his taxes. The appellant stated that he and his wife had been mentally and emotionally affected by the miscarriage. He stated that it would be difficult to live in India as they had a support network in the UK and he had lost most of his connection and ties to India. His removal would have a detrimental impact on their lives. In her statement, the appellant’s wife stated that it was not possible to move to India as she had an established life in the UK and had all her family here, as well as her home and her employment and relatives and friends.

10. The appellant and his wife gave oral evidence before me, Mr Alam having tendered them for cross-examination. They both adopted their respective statements as their evidence for the appeal.

11. The appellant said that he was unaware of the TOEIC fraud allegation until he received the refusal of his current application. He was aware that his leave had been curtailed on 27 October 2014 but his legal representative at the time had never explained the reason and he had never asked. He did not read the refusal letters himself. He did not make a complaint about the solicitor as he was not aware of the circumstances at the time. The appellant accepted that he was aware that he had no permission to stay in the UK from the end of the judicial review until he made the current application in February 2024 but he had just given up. He found out that the solicitor had not paid the Home Office fee for the judicial review, even though he had given the money to his solicitor, and the solicitor must have kept it for himself. He had now paid the fee. He had no knowledge of how to stay in the UK and had no-one to guide him, and had spent a lot of money on making applications, so he just gave up. He could not work as he was only permitted 20 hours of employment and no-one would employ him for such limited hours. His grandmother supported him initially but she died in 2017 and he then borrowed money from friends. He had lived with his parents and two sisters in India before his father died, but when his father died his mother found another man and left with his sisters. So he went to live with his grandmother, at the age of 11. The appellant said that he was supported by his wife’s family in the UK. They lived in her father’s house. They could not go to India as they had everyone here in the UK. He did not know where he would live in India and what work he could do. He would work in the UK if he was allowed to. His wife would not move to India with him as her family was here.

12. When re-examined by Mr Alam, the appellant said that he had been studying business management in the UK, at college, but had not been able to complete the course. He had intended to go to university after completing the course and to then find employment.

13. The appellant’s wife then gave her evidence. She said that she had never questioned her husband about his immigration history and did not even know what TOEIC was until recently. She had not thought about his immigration status and did not know how immigration worked, as she was a British citizen and was born here. She said that it would be difficult if her husband went to India and she was not sure if she would join him there. Although her family was of Indian heritage, her dad was born here and her family was all here. She may have some very distant family in India.

14. Both parties then made submissions.

15. Mr Parvar submitted that the key issue was the curtailment of the appellant’s leave on 27 October 2014 and the fact that he had been an overstayer since then, for a substantial number of years. In so far as the appellant relied upon Ahsan v The Secretary of State for the Home Department [2017] EWCA Civ 2009 in regard to a factually mistaken curtailment, Mr Parvar submitted that there was no blanket rule to the effect that the appellant should be granted leave owing to the respondent’s mistake, although it was recognised in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351 that it was a factor to be taken into account in the proportionality assessment. He submitted that in this case the appellant had not identified any specific injustice said to have arisen from the TOEIC allegation. His student leave was about to expire in May 2015 and he had failed to provide any explanation as to how he would have been able to meet any further educational costs. He was still in the UK 12 years after his leave had been curtailed and had only made two applications since then. His immigration history was poor, notwithstanding the ETS decision. Mr Parvar relied upon the headnote of Ahmed (historical injustice explained) Bangladesh [2023] UKUT 165 at 1(d) in that regard. He also relied upon the case of Gurung & Others (Gurkhas, historic injustice, Article 8) Nepal [2026] UKUT 191 in submitting that the appellant had failed to show a causal connection between the historical injustice relied upon and his circumstances, particularly given the passage of time and his inaction. Mr Parvar submitted that the appellant’s assertion as to his lack of knowledge of the TOEIC allegation was not credible. With regard to the assertion made by the appellant as to his former solicitor’s misconduct, Mr Parvar relied upon the headnote in BT (Former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311 in regard to the absence of any complaint made against his former solicitors. He submitted that the appellant had had a wilful and flagrant disregard of the laws in the UK and he was completely responsible for that. Mr Parvar submitted that there were no insurmountable obstacles to family life continuing in India, as previously found in the First-tier Tribunal. He relied upon the case of Parveen v The Secretary of State for the Home Department [2018] EWCA Civ 932 in submitting that the appellant’s bare assertion as to having no ties there was not acceptable. He submitted that in any event the appellant would be able to support himself and his family in India and could find meaningful employment there. Little weight should be given to his private and family life, both having been established when he was here unlawfully. There was no reason why the couple’s desire to have children would tip the balance in the appellant’s favour.

16. Mr Alam submitted that it was relevant that the refusal decision was only based upon the appellant being an overstayer, and that that was because of the accusation of having obtained the TOEIC certificate fraudulently. The Secretary of State had extended the appellant’s student visa twice previously and therefore had no issues regarding funding being in place or the appellant’s eligibility to enrol on the courses. The appellant was previously here with lawful status and there was nothing to suggest that he had done anything wrong in the five years he was here prior to the curtailment decision. Mr Alam submitted that it was unreasonable to expect the appellant to go on making further applications which would be refused. It was only when he was able to make an application on family life grounds that he had an opportunity to come to court. Mr Alam relied upon the case of Ahsan at [120] in submitting that the appellant should be returned to the position he was in before his leave was cancelled. He had ambitions at that time and there was nothing to suggest that he would not have gone on to university. He was put in a position of limbo. There was therefore a causative effect of the historical injustice. As such the public interest of maintaining a system of immigration control should be given less weight. When considering section 117B and the little weight to be given to the appellant’s private and family life, consideration had to be given to the reason why the appellant was in the UK unlawfully and the exceptional circumstances arising out of the historical injustice, such that those provisions did not apply. Mr Alam submitted that it was relevant that the appellant’s wife was British and that she was employed in an occupation for which there was a shortage, as a care manager, and that the couple was undergoing fertility treatment and had suffered a recent miscarriage. He submitted that it was speculative to suggest that she would move to India with the appellant. There would be a reasonable chance of an entry clearance application being successful, given that the appellant had been found not to be involved in the fraud, but it was not proportionate to expect him to return to India, particularly considering the historical injustice.

Consideration and findings

17. As agreed, the only issue before me is Article 8 proportionality. The First-tier Tribunal’s findings in the appellant’s favour on the TOEIC allegation have not been disturbed, as made clear by DUTJ Kelly in his decision of 13 July 2026. More specifically, it is the “historical injustice” issue that is the material consideration before me, given that it was on the basis of the First-tier Tribunal’s failure to place that issue in the proportionality balance that the decision was set aside, as DUTJ Kelly made clear at the end of [11] of his decision. The appellant relies upon the cases of Ahsan, in particular at [120], and Ahmed, in that regard.

18. In so far as the Court, in Ahsan, suggested that the appellant should be returned to the position he would have been in had the error not been made, I agree with Mr Parvar that that does not suggest a blanket rule such that the appellant ought to be given leave to remain dating back to the curtailment decision. Indeed the Court mentioned that only in the context of a straightforward case, which the appellant’s certainly cannot be considered to be, given the extended period of time since the curtailment decision was made.

19. In any event the caselaw has moved on since Ahsan with the passage of time since the TOEIC and “section 10”cases, with the Upper Tribunal in Patel referring to such cases as ‘historical injustice’ cases, distinguishing them from ‘historic injustice’ cases. The Upper Tribunal found that in such cases either the public interest consideration in section 117B(1) should involve a reduction in the weight to be given to the maintenance of effective immigration control or alternatively the consideration in section 117B(4), that little weight should be given to a private life formed when the person concerned is in the United Kingdom unlawfully, ought to be qualified. In Ahmed, the Upper Tribunal made further observations and findings in such cases, with paragraphs (c) and (d) of the headnote being particularly relevant in this appellant’s case:

“c. In order to establish that there has been a historical injustice, it is not sufficient to identify a wrongful operation by the respondent of her immigration functions. An appellant must also show that he or she suffered as a result. An appellant will not have suffered as a result of wrongly being denied a right of appeal if he or she is unable to establish that there would have been an arguable prospect of succeeding in the appeal.

d. Where, absent good reason, an appellant could have challenged a public law error earlier or could have taken, but did not take, steps to mitigate the claimed prejudice, this will need to be taken into account when considering whether, and if so to what extent, the weight attached to public interest in the maintenance of effective immigration controls should be reduced. Blaming a legal advisor will not normally assist an appellant.”

20. Those findings raised the question of causation which was made more clear in Gurung, albeit that Gurung was specifically about cases of ‘historic injustice’ rather than ‘historical injustice’. The respondent now relies upon that case in submitting that the appellant needs to show a causal connection between the historical injustice and his circumstances. Indeed, given that in the appellant’s case the curtailment of his leave as a result of the (now established wrongful) TOEIC allegation was some 12 years ago, there is particular relevance in what the Upper Tribunal said at [47}, that “such a causal connection is likely to be more difficult to establish as time passes since the historic injustice was corrected”.

21. In Gurung the Upper Tribunal found, at [48], that:

“In cases where a causal connection between the historic injustice and the appellant’s circumstances is not found, the fact of the historic injustice is likely to have little weight in answering the public interest question”

and, at [49], that:

“Where, by contrast, a causal connection is established between the historic injustice and the appellant’s circumstances, whilst it will still be necessary to undertake a proportionality assessment in order to answer the public interest question, …the effect of the historic injustice will normally outweigh the public interest, where that public interest is limited to no more than the general public interest in effective immigration control.”

22. It is the case, as Mr Alam submitted, that the appellant failed to meet the eligibility requirements of the immigration rules in his application of 28 February 2024 solely on the basis of him being an overstayer and that it was the cancellation of his leave as a result of the TOEIC allegation that led to him being without leave at that time. However, it seems to me that there is still a long way to go to establish that the appellant’s ongoing immigration status as an overstayer is a direct result of the respondent’s wrongful allegation resulting in the curtailment of his leave some 10 years prior to that decision.

23. It was Mr Parvar’s submission that the curtailment decision in the appellant’s case had not contributed to any extent to his ability to meet the requirements of the rules and that his leave was due to expire in May 2015 in any event, with no evidence to suggest that he would have been granted continued extensions of leave from that time. I agree. Whilst it is the case, as Mr Alam submitted, that the respondent had been satisfied of the appellant’s ability to fund his studies when granting extensions of leave when she did, the appellant’s own evidence was that it was his grandmother who had been supporting him financially at that time, but that she had passed away in 2017, and there is no evidence to suggest that he would therefore have had the funds to pay for further studies. Further, whilst again the respondent had been sufficiently satisfied of the appellant’s progress in his studies to grant extensions of leave until 2015, no evidence has been produced by the appellant about his studies or relating to his studies to suggest his ability to continue on to higher education at that time. It would therefore be wholly speculative to suggest that he would have been granted successive extensions to his leave and that he would have had extant leave at the time he made his application for leave to remain as a partner. That is particularly so given that he did not meet his wife until 2018 and that his marriage only took place in 2022, some eight years after his leave was curtailed.

24. Furthermore, as held in Ahmed, it is important to consider the steps taken by the appellant to mitigate the claimed prejudice. The appellant claims to have been unaware of the TOEIC allegation, and to have had no prior knowledge of the basis of the curtailment of his leave and the refusal of his subsequent application, and that he did not know what he could do by way of further applications but simply gave up. Like Mr Parvar I find no credibility in such a claim. Although the First-tier Tribunal found the appellant to be a reliable witness in the evidence he gave before that Tribunal, that does not mean that I have to accept his evidence in all respects, particularly when it was so lacking in credibility. I agree with Mr Parvar that it simply defies belief that the appellant would not have been aware of the basis of the previous decisions made against him, when the reasons were clearly set out in the relevant Home Office notices and letters, when he was legally represented, and when he pursued a judicial review claim to challenge the second decision of 23 February 2016. He has, and had, a good knowledge of English, as indeed is his own evidence. He now seeks to blame his solicitor at the time, claiming that the solicitor did not explain anything to him and “left him in the dark”, and even now alleges that his solicitor stole the money he paid him for the litigation debt for the judicial review. However he did not seek to make any complaint against his solicitor and I do not accept that he has been truthful in that regard. The appellant accepts that he was aware of the curtailment of his leave in 2014 and I consider that he was fully aware of the reasons for the curtailment and the reasons why his subsequent application was refused.

25. The appellant chose, furthermore, to remain in the UK without any leave for eight years after his judicial review claim failed and until he made his current application, without any attempts to regularise his stay here. Mr Alam submitted that it was unreasonable for the appellant to go on making applications which would be refused and that it was only when he made his current application on the basis of his family life that he had an opportunity to come to court. I do not agree. It was always open to him to seek legal advice and make further applications, particularly following the judgment in Ahsan in 2017 which directly impacted upon his own situation. In any event that did not mean that he was entitled to simply remain in the UK. Whether or not he disagreed with the respondent’s decisions, the fact remains that he did not have any lawful basis of stay in the UK and the law required him to leave. In the circumstances I agree with Mr Parvar, that the appellant is responsible for his own disregard of the laws here and that, as such, he is responsible for the situation in which he finds himself in.

26. In the circumstances I do not accept that the appellant has managed to establish a causal connection between the respondent’s mistake and the situation in which he finds himself. Any causal connection that may have existed at the time of the cancellation of his leave or shortly thereafter has since been distinguished by his subsequent conduct in overstaying for a substantial number of years. The fact of the historic injustice therefore carries little weight in answering the public interest question. I do not consider that the weight of the public interest in immigration control can said to be reduced in the proportionality assessment as a result of the erroneous cancellation of his leave some 12 years ago and neither do I consider there to be any exceptional circumstances to counteract the impact of section 117B(4) of the Nationality, Immigration and Asylum Act 2002. Accordingly I give little weight to the appellant’s private life established in the UK whilst living in the UK unlawfully and to his family life with his wife, given that that too was established when he was here unlawfully.

27. As for the other matters relevant to the proportionality assessment, the findings made by the First-tier Tribunal at [16] to [20] have not been displaced, the assessment having been challenged only in so far as it did not include the historical injustice issue. In any event I agree with the findings made in those paragraphs. I do not accept that the appellant has demonstrated any insurmountable obstacles to family life continuing in India, for the purposes of EX.1(b) and EX.2 of Appendix FM. Like the First-tier Tribunal Judge, I have sympathy for the appellant and his wife in regard to the failed attempts to have a child and the recent miscarriage. I also have considerable sympathy for the appellant’s wife whom I accept was unaware, or at least not fully aware, of the implications of the appellant’s immigration status. I accept that this has caused her considerable anxiety and stress particularly given that her family, social and work ties all remain in the UK and she has little or no ties to India and no desire to live there. However I have to base my decision on the law. The fact is that there is no evidence before me to suggest that fertility treatment could not be continued in India and that family life could not continue in that country. Whilst the appellant states that his wife would not move to India with him and that his removal would lead to their separation, his wife was unsure that she would refuse to join him. In any event that is a matter for them to consider between them. There is no reason why both of them could not find employment in India and support themselves there, whether or not there was any family support in that country. The appellant spent 21 years of his life in India before coming to the UK, which included his most formative years, and I do not accept that he has severed all ties to that country. In any event his wife and her family have, on his own evidence, been supporting him for many years and there is no reason why they could not be expected to provide some assistance in India, at least for an initial, short period of time whilst they establish themselves there.

28. Even if the appellant’s wife did not wish to relocate to India with the appellant, there is no reason why she could not accompany him there for a short period of time whist he made an entry clearance application, or alternatively remain in the UK and support him whilst he made an application himself from India. As Mr Alam submitted, there is no reason why such an application would be refused, given that the allegation of fraud has been removed. This is not a Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 situation, where the circumstances in the country of removal would be particularly harsh. The fact that the appellant, following removal, is likely to succeed in an application for entry clearance does not obviate the need to address the relevant considerations in Part 5A of the 2002 Act, and the public interest consideration in section 117B(1). For the reasons already given, the public interest in the maintenance of an effective immigration control is not reduced by the respondent’s allegations and the action taken in 2014 and neither is it outweighed by any considerations relied upon by the appellant. There would not be nothing disproportionate in expecting the appellant to make an application under the correct process and in accordance with the immigration rules. No evidence has been produced to show that such an application would take an excessive amount of time to be considered.

29. Accordingly the appellant’s removal, either on a permanent basis or on a temporary basis to make an entry clearance application, would not be disproportionate. The proportionality balance falls in favour of the public interest. The appellant’s removal from the UK would not be in breach of his human rights.

DECISION

30. The making of the decision of the First-tier Tribunal involved an error on a point of law and has been set aside. I re-make the decision by dismissing the appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 September 2026