Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001019
First-tier Tribunal No:
HU/56206/2024
LH/01140/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th August 2026

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

MASHUK AHMOD
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Karim, of Counsel, instructed by Liberty Legal Solicitors LLP
For the Respondent: Mr J Nappey, Senior Home Office Presenting Officer

Interpretation: Ms H Rahman in the Sylheti dialect/language

Heard at Field House on 28 July 2026

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Bangladesh born on 22nd June 1977. He came to the UK on 9th June 2005 with a visit visa. He made an application for indefinite leave to remain in a false identity in November 2005 which was refused in May 2009, and he was served with papers as an illegal entrant. He made a human rights application in his true identity in April 2015, which was refused in July 2015. He made an asylum claim in April 2016 which was refused in November 2017 and against which he appealed, but that appeal was dismissed by a First-tier Tribunal Judge in March 2018, and all further appeals against this decision were unsuccessful.
2. The appellant applied again for leave to remain on the basis of his private life ties on 25th July 2022 asserting that he had been in the UK for more than 20 years and that he would face very significant obstacles to integration if returned to Bangladesh. The application was refused in a decision of the respondent dated 10th May 2024. The appellant’s appeal against this decision was dismissed by a First-tier Tribunal Judge in a decision promulgated on 21st November 2025
3. Permission to appeal was granted and I found that the First-tier Tribunal had erred in law for the reasons set out in the error of law decision which is at Annex A to this decision.
4. The matter now comes before me to remake the appeal. This appeal covers the contention that the appellant is entitled to succeed in his appeal by reference to the Immigration Rules Appendix PL on 20 years residence at and as a result of his having very significant obstacles to integration if returned to Bangladesh; that he is entitled to succeed more generally on Article 8 ECHR private life grounds; and by virtue of application of Article 3 ECHR on medical grounds. The facts accepted by both parties, as recorded in the error of law decision, are that the appellant had resided in the UK for more than 20 years and that the appellant had applied for indefinite leave to remain in 2005 under false name and using falsified supporting documents.
5. It was accepted by both parties that the appellant should be treated as a vulnerable witness, and it was agreed that any questioning should be kept to a minimum and questions should be straight forward. The appellant gave his evidence through the Sylheti interpreter, whom he confirmed that he understood. The interpreter was online, but there were ultimately no issues with communication once the appellant understood how loudly he needed to speak. The appellant appeared anxious throughout the proceedings but answered all questions put to him in a straightforward manner.
Evidence & Submissions – Remaking
6. The evidence of the appellant, from his two statements and oral evidence given in response to cross-examination is, in short summary, as follows.
7. The appellant entered the UK on 9th June 2005 and has been resident here ever since. He asks that he been allowed to remain due to his long residence and as he has a number of serious medical conditions including depression, stress and anxiety, and suffers from chest pain. He says he takes two types of medication for his depression and problems sleeping, and has talking therapy once every week or two weeks. He argues he would be returning to Bangladesh with no one to financially support him or assist with shelter, in circumstances where he has no house, or medical care, and fears he would be destitute and may commit suicide. He does not know where he would get the medication he needs if returned to Bangladesh. He accepts that he has a brother and sister in Bangladesh but says that his father was angry when his then girl-friend took all the money from his business, and that he has not had contact with his siblings for four or five years. He says that he has lost all ties with Bangladesh. He says that he is well integrated into the UK and is provided with accommodation by a friend, although he has lost contact with the two friends who wrote letters in support of his appeal due to his not going out, which in turn is due to his mental health/ sleep problems, and he does not believe that they would assist him if he were returned to Bangladesh as they are not family. He has provided evidence that he has supported Cancer Research and the British Heart Foundation charities in the UK.
8. The appellant says that the application in a false name and with a false date of birth and arrival date was made in November 2005 without proper advice from his solicitor (Mr Hussain of Arian Solicitors) as to the consequences, and the application was refused and the appellant was honest about the untruths when interviewed by an immigration officer in April 2015, and from this point in time the appellant has always used his true details and complied with all requirements from the Home Office.
9. A medical letter from the Newham Transitional Practice dated 23rd October 2024 states that the appellant has been diagnosed with mixed anxiety and depressive disorder. He suffers from stress, forgetfulness and sleeplessness, and is prescribed Sertraline and Phenergan, and receives talking therapy. Investigations by Barts Health NHS Trust in 2018 into his chest pain ended with a conclusion that he had no abnormalities. From the appellant’s GP notes it is clear that his depression was first noted in 2017. There are letters from Voice for Justice UK, Counsellor Ana Mia of Tower Hamlets Council and a friend Saif Uddin Khaled in support of the appellant. An updating letter from the appellant’s GP dated 20th May 2026 confirms his anxiety and depression continue and that his medication has been changed from Sertraline to Mirtazapine in 2025 to try to improve sleep and mood but that he continues to suffer significant psychological distress which include thoughts of self-harm. The appellant’s GP observes that he is fragile and vulnerable to deterioration under stress.
10. Mr Nappey relied upon the reasons for refusal letter dated 17th May 2024, the respondent review before the First-tier Tribunal and the position statement with respect to discretion dated 11th May 2026.
11. The respondent argues, in short summary, as follows. With respect to the Article 3 ECHR medical claim it is argued that the high threshold is not met. There is no evidence he is seriously unwell so as to engage Article 3 ECHR. It is argued that there is no evidence to support a real risk of self-harm or suicide. He could obtain medical assistance in Bangladesh, as it is clear from the CPIN that Mirtazapine is available in Bangladesh, and there is no psychological report and country of origin evidence to show that return to Bangladesh would cause a serious and irreversible decline in his anxiety and depression or that necessary treatments would not be available. He would also have family support available to him. The appellant expressed concern over his father’s health in 2019 and his mother’s health in 2021, and has not shown they are not still alive, and has accepted when giving oral evidence that he has siblings who live in Bangladesh, and has given no reasons why it would not be reasonable for him to turn to them for help.
12. The respondent argues in her letter of 11th May 2026 that she exercises her discretion to refuse the application for permission to remain based on twenty years long residence because there is no reason given for the use of false representations in previous applications and the only exceptional circumstance referred to in the appellant’s witness statement is with respect to the appellant’s anxiety and depression. It is argued that false representations were central to the November 2005 application as a false name and date of birth were used, and as the respondent has now provided reasons for not exercising discretion that the issue of the applicant’s appeal under Article 8 ECHR by reference to this part of the Immigration Rules is determined as it cannot be said that the respondent has made a decision that is vitiated by public law error.
13. With respect to the Article 8 ECHR appeal considered by reference to the Immigration Rules related to very significant obstacles to integration it is argued that the appellant could reintegrate into life in Bangladesh as he lived there for over 27 years and speaks fluent Bengali and some English. He expressed concern over his father’s health in 2019 and his mother’s health in 2021 and has not shown they are not still alive, and accepts that he has siblings who live in Bangladesh, and it would, in all the circumstances, be reasonable for him to turn to them. The appellant would also be eligible for financial assistance if he made a voluntary return to Bangladesh. He has not shown he has an extensive private life in the UK, as he appears to be largely alone, and he could maintain any UK friendships through normal modern methods of communication. The appellant’s mental health problems do not engage Article 3 ECHR, and he has not shown he is either seriously unwell or that he could not get appropriate help in Bangladesh, or that he is not well enough to work if returned to his country of origin.
14. Finally, it is argued that the appeal should not be allowed outside of the private life Immigration Rules on Article 8 ECHR grounds as the failure to comply with them must be considered as a weighty factor as per Alam & Anor v SSHD [2023] EWCA Civ 30 in the proportionality exercise. The appellant’s private life should be given little weight and is not a strong one as he is not really in touch with friends in this country, and has apparently not worked or made any other significant contribution to the UK.
15. Mr Karim made, in short summary, the following submissions for the appellant.
16. It is argued that the appellant’s Article 8 ECHR appeal should succeed by reference to the provision for 20 years residence. The period of residence is accepted and the refusal with reference to the suitability provisions is argued to be unlawful and wrong. It is argued that I must exercise the discretion under the suitability provision myself and consider whether the provision is met and that I should find that discretion should be exercised to find that the Rule is met and he should not be refused on suitability grounds, despite the accepted use of the false identity in the November 2005 application. This is for the following reasons: because this happened more than 20 years ago; because entry clearance applicants who use false documents only face a ten year ban and more than ten years has passed; because there is a statement and evidence which shows that the appellant made a voluntary disclosure of the use of the false identity in 2015; because the respondent should act in a way which encourages such disclosure of an unlawful past; and because it is clear since 2016, when the appellant first consulted a GP, that he has suffered from mental health problems.
17. In the alternative, it is argued that if the level of review of the Upper Tribunal in relation to the discretion is determined to be that of public law error then the above matters were not considered by the respondent in her letter of 11th May 2026 and so material matters known to the respondent were not considered when exercising discretion and so the decision of the respondent under this aspect of the Immigration Rules is not a lawful one.
18. With respect to the Article 3 ECHR medical appeal there is evidence in the latest GP letter that the appellant has “thoughts of self-harm” and that his chronic mental health condition leaves him fragile and vulnerable, and that his mental health problems relate to a fear of being returned to Bangladesh. On the basis of this evidence it should be found that the appellant is seriously unwell. The CPIN, Country Policy and Information Note Bangladesh: Medical treatment and health care July 2022 provides evidence that the mental health facilities of Bangladesh are inadequate and that there is widespread stigma associated with mental health problems, and restricted access to mental health care. It is argued that the appellant would have obstacles accessing healthcare in the context of his returning to Bangladesh with no funds, family support or home and this could lead to a serious deterioration in his health.
19. Finally with respect to the Article 8 ECHR appeal outside of the Immigration Rules it is argued that the appellant’s period of residence of over twenty years should be given weight, as in accordance with Rhuppiah v SSHD [2018] UKSC 58 this is a case where more weight than little weight should be given to his Article 8 ECHR ties because of exceptional features such as the fact that the appellant has resided for a period of time deemed significantly long under the Immigration Rules so as to mean that prima facie a grant of leave might follow. It is argued that if it were found by the Tribunal that the long residence Rules were properly not met due to the suitability provisions being lawfully applied by the respondent the factors argued with respect to this discretion (the voluntary disclosure over ten years ago, the passage of time, 20 years, since the false identity was used, and the appellant’s medical circumstances) should be balanced in his favour, along with his current mental health problems, even if these were found not to meet the high threshold for Article 3 ECHR.
20. At the end of the hearing I reserved my decision. I now set out my conclusions on remaking below.
Conclusions – Remaking
21. I will start with a consideration of the Article 3 ECHR medical appeal. In accordance with AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 the appellant must firstly show that he is a seriously ill person with clear and cogent evidence from a treating physician in the UK. Secondly he must adduce evidence demonstrating that there are substantial grounds for believe that as a seriously ill person he would face a real risk, as a result of not receiving appropriate treatment in Bangladesh, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or reduced life expectancy. This second stage requires country of origin evidence, most helpfully from clinicians in the country of origin.
22. I am not satisfied that the appellant has shown that his is a seriously ill person. This is not to minimise his suffering. I find that he is a fragile and chronically unwell man with low mood, anxiety (particularly at night), insomnia and impaired concentration. He suffers from anxiety with depressive symptoms which is currently treated with two medications, and once or twice a week talking therapy with a psychologist. However he has not been hospitalised with his condition, he has been managed for the past ten years primarily by his GP, and whilst he has had thoughts of self-harm he has never acted upon these thoughts.
23. I could stop at this stage but in case I am wrong on this first issue I continue to consider whether the second condition can be met. There is no specific expert evidence about the type of treatment the appellant would receive in Bangladesh from a country of origin expert or clinician based in Bangladesh. The CPIN, Country Policy and Information Note Bangladesh: Medical treatment and health care July 2022, records that Bangladesh has instituted an ambitious public health intervention aiming to provide a community clinic for every 6000 people, and has set up more than 13,200 of these clinics all over the country covering the whole population through its public healthcare system. It would appear that GP equivalent provision is therefore generally available. Specific mental health care is clearly less available, however Mirtazapine is available along with many other drugs used to treat depression and anxiety, and psychologists are available in Dhaka. Whilst there is stigma connected with mental health disorders and a lack of awareness of treatments I have no evidence that the appellant’s siblings would not be sympathetic and supportive, or that with the combination of their assistance, both practical and financial, the appellant would not be able to achieve an appropriate package of support on his return perhaps receiving talking therapy via video link if he were to return to Sylhet rather than live in Dhaka. Whilst the appellant’s evidence was that he had not been in touch with his siblings it was not that if he were to reach out to them that they would not be willing to be supportive with respect to helping provide him with necessary mental health care. There is also no evidence as to the prognosis if the appellant did not continue with his medication and talking therapy on return to Bangladesh making it impossible to conclude even on the basis of a real risk that this would lead to his entering a serious, rapid and irreversible decline in his health causing intense suffering or reduced life expectancy
24. Whilst the appellant is afraid of returning to Bangladesh from the latest GP evidence this is because of fears relating to “previous political involvement”. These fears were found to be unfounded by the 2018 First-tier Tribunal, and related to fears that the then ruling Awami League would target him. Given that the Awami League is no longer in power I find that it is therefore likely that on return to Bangladesh these fears will be reduced by the reality of the current political situation with a BNP government in power, and I find there is no reason to believe that the political situation in his country of origin will increase his mental health problems and lead to his acting on thoughts of self-harm. The Article 3 ECHR medical appeal therefore falls to be dismissed.
25. I now turn to the Article 8 ECHR appeal, and consider it with respect to the Immigration Rules at Appendix PL. As set out in the submissions this has two aspects. I first consider whether the appellant has shown he would have very significant obstacles to integration on return to Bangladesh. As set out in SSHD v Kamara [2016] EWCA Civ 813 what I must decide is whether, on consideration of all of the evidence, that the appellant would be enough of an insider to understand and participate in society, having a reasonable opportunity of acceptance and to develop human relationships within a reasonable period of time. The appellant lived in Bangladesh until he was 27 years old, speaks Sylheti, is well educated and whilst in Bangladesh ran his own business for a number of years. The respondent has correctly submitted that the appellant has not shown that he would not be able to reach out to his siblings, even if he had a dispute with his father / or his parents have passed away, and resume normal family relationship with them and make friends, as he has done in the UK despite his mental health problems. The medical evidence does not state the appellant is unfit for work. I have found that he has not shown that his siblings would not assist him with obtaining adequate treatment for his anxiety and depression or that return to Bangladesh would cause him to become seriously unwell. I find for these reasons that whilst return after a long period of absence in a state of chronic ill-health would be very difficult and upsetting for the appellant he would ultimately be able to develop a private life in Bangladesh if returned.
26. I now turn to the appeal by reference to the 20 year provision at Appendix PL 5.1(a) of the Immigration Rules. I must first determine the standard of review this Tribunal must apply to the Article 8 ECHR appeal considered by way of whether the appellant is able to meet the 20 year long residence Immigration Rules at Appendix PL, and more specifically the only contentious part of those Rules, the suitability provisions at S-LTR 4.1 & 4.2.. These paragraphs read as follows:
• ‘S-LTR.4.1. The applicant may be refused on grounds of suitability if any of paragraphs S-LTR.4.2. to S-LTR.4.5. apply.’
• ‘S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful
27. It is common ground that the appellant accepts that he made false representations in November 2005 in an application for leave to remain. The question is whether the respondent has correctly exercised her discretion to refuse on suitability grounds.
28. Mr Nappey contends that my role is simply to determine that the respondent has exercised discretion, which is evidenced in the position statement of 11th May 2026, and that unless the respondent has fallen into public law error that is the end of the matter. Mr Nappey goes on to argue that the statement is not contaminate by any public law error. He argues that there is no explanation for the accepted use of a false name and date of birth in the November 2005 application beyond the appellant having mental health issues, and no evidence linking these problems to the application and that therefore, it is argued, the respondent rationally and lawfully refuses to exercise her discretion.
29. Mr Karim argues primarily, however, that it is for me to assess whether or not the discretion should be exercised in the appellant’s favour by consideration of all of the facts; and only argues in the alternative that if my standard of review is that of seeking simply to establish whether there are public law errors in the decision that such errors exist.
30. Both representatives are ones who are highly competent but I was not taken to any detailed argument or detailed consideration of any authorities in support of either position. The idea that the standard of review in an appeal may only be that of compliance with public law principles derives of course from Begum v Special Immigration Appeals commission [2021] UKSC 7 which concerned the deprivation of citizenship in the interests of national security, and the principles have since be applied in deprivation cases made conducive to the public good in the context of involvement with serious organised crime. The limitation to public law only review by the Tribunal was clarified to be with respect to the discretion, in the context of s.40(3) decisions to deprive, once fraud is established on the balance of probabilities in U3 v SSHD [2023] EWCA Civ 811.
31. The question for me is therefore, in the context of a very different appeal, a human rights appeal, when dealing with a provision of the Immigration Rules which permits the respondent to exercise discretion, whether, post Begum, once the fact of the false representation is established, whether my role is solely to apply public law principles and assess if there has been an error, or whether it is for me to exercise that discretion myself on the basis of the facts.
32. The decision in Mahmood (paras. S-LTR 1.6 and S-LTR.4.2; Scope) Bangladesh [2020] UKUT 376 makes it clear that the respondent is obliged to reason her discretion in either the original refusal or in an addendum decision, as set out at paragraphs 79 and 84 of this decision. It is clear that the respondent has now complied with this obligation in this case. Mahmood does not go on to deal with the issue of the standard of review of discretion in a human rights appeal however.
33. On consideration of this issue I observe that Begum and the cases relating to deprivation of citizenship, concerned an entirely different basis of appeal. I find this line of case law does not provide a reason to conclude that the standard of review for the Upper and First-tier Tribunals should be that of public law error in these circumstances. I find that in the context of this human rights appeal I must take the conventional approach and assess myself whether the Immigration Rules can be met at the date of hearing, and whether in this context this leads me to conclude that the removal of the appellant would be a disproportionate interference with his Article 8 ECHR right to respect for private life. I find however that in the context of these suitability provisions giving the respondent a discretion greater deference should be given to the position of the respondent as it relates to public policy issues.
34. When considering whether discretion should be exercised to refuse on grounds of suitability I find force in Mr Karim’s submissions that it is relevant that the deception happened in November 2005, more than 20 years ago, and that from April 2015, 11 years ago, when the appellant was encountered as an overstayer by immigration officers, he gave his correct name and date of birth and clarified that these, and not the false identity, were his genuine details, and that neither of these factors were brought into consideration when the respondent refused to exercise discretion in the appellant’s favour. It is reasonable to consider, as was done by the Court of Appeal in ZH (Bangladesh) v SSHD [2009] EWCA Civ 8, that there must be the possibility of compliance with an Immigration Rule which is in essence an amnesty for those who have broken the immigration laws by remaining unlawfully for a period of 20 years, and, as Mr Karim has submitted, it must be in the public interest to encourage those in this position to regularise themselves and come forward, particularly when, as in this case, this is outside of the context of criminal deportation. I accept, as argued by the respondent, that the appellant has not shown any link with his mental health issues, which were only diagnosed some ten years after his use of false representations, and this use of false representation, but nevertheless the respondent is being asked to exercise discretion at the current time and this is a feature of the appellant and his private life in the UK. As a result I find some weight should be given to the fact that I have found that he is a fragile chronically unwell man with depression and anxiety who would find return to his home country very difficult, although I also consider that it has not been shown he could not be adequately treated for his health issues in Bangladesh and he has not shown he would have very significant obstacles to integration on return to that country.
35. Ultimately, on consideration of all of these factors, I find, whilst giving deference to the opinion of the respondent, made without consideration of factors I have considered to be material, that discretion should not be exercised in the appellant’s favour, that the “coming clean” over ten years previously; the distance in time with respect to this deception, which happened over 20 years ago; the flexibility which must be implicit in a Rule that relates to those who have necessarily broken the immigration laws of the UK; as well as the mental health fragility of the appellant which will make return to his country of origin very difficult ultimately mean that discretion should have been exercised not to refuse on grounds of suitability. I therefore conclude that the appellant is entitled to succeed in his appeal by reference to his 20 plus years of long residence under the private life Immigration Rules as discretion should be exercise not to refuse on suitability grounds in the particular circumstances of this case. As the appellant meets the requirements of the Immigration Rules there is no public interest in his removal, and to remove him would therefore be a disproportionate interference with his private life ties to the UK. I need not go further to conduct a more wide-ranging proportionality assessment in these circumstances.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal dismissing the appeal.
3. I remake the appeal by allowing it under Article 8 ECHR.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29th July 2026

Annex A: Error of Law Decision:

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Bangladesh born on 22nd June 1977. He came to the UK on 9th June 2005 with a visit visa. He made an application for indefinite leave to remain in a false identity in November 2005 which was refused in May 2009, and he was served with papers as an illegal entrant. He made a human rights application in his true identity in April 2015, which was refused in July 2015. He made an asylum claim in April 2016 which was refused in November 2017 and against which he appealed, but that appeal was dismissed by a First-tier Tribunal Judge in March 2018, and all further appeals against this decision were unsuccessful.
2. The appellant applied again for leave to remain on the basis of his private life ties on 25th July 2022 asserting that he had been in the UK for more than 20 years and that he would face very significant obstacles to integration if returned to Bangladesh. The application was refused in a decision of the respondent dated 10th May 2024. The appellant’s appeal against this decision was dismissed by First-tier Tribunal Judge in a decision promulgated on 21st November 2025
3. Permission to appeal was granted by Judge of the First-tier Tribunal on 5th March 2026 on the basis that it was firstly arguable that the First-tier judge had erred in law in the application of the suitability Immigration Rules at S-LTR 4.2. The third ground, which asserts that the First-tier Tribunal applied the wrong standard of proof, was found to arguably identify an error of law at paragraphs 16 and 50 of the decision. It is also found there is an arguable error with respect to exceptional circumstances as per ground 5. Although the materiality of the second ground was found not to be set out permission was granted to argue all grounds.
4. The matter now comes before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside. At the start of the hearing, I asked Mr Karim if he had seen the Rule 24 notice, and it transpired he had not. Mr Nappey helpfully provided him with a copy. It was agreed that the concession in the Rule 24 notice that there were errors of law in the Article 3 and Article 8 decisions meant that it was not necessary to further consider grounds 3, 4 and 6. Mr Karim agreed that he did not pursue grounds 2 and 5. As such the hearing needed only to focus on ground 1.
Submissions – Error of Law
5. In the first ground of appeal and in oral submissions from Mr Karim it is argued that the First-tier Tribunal erred by failing to engage with S-LTR 4.1 and 4.2 as there is no recognise that this is a discretionary refusal, as this is a basis on which an applicant “may be refused”. Instead, at paragraph 27 of the decision, it is simply said that the appellant has been dishonest and sought to gain an immigration advantage and so is not suitable. In Mahmood (paras. S-LTR 1.6 and S-LTR.4.2; Scope) Bangladesh [2020] UKUT 376 at headnote point 2 (which in turn refers to paragraph 84 of the decision) it is said that “The Home Office is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses.” The Home Office had not done this in their reasons for refusal letter which states simply that the application fell to be refused under S-LTR 4.2 because the appellant applied for indefinite leave to remain under a false name using false documents. Mr Karim argued that the Home Office had therefore fallen into error and either it was the role of the judge to reconsider this exercise of discretion, which had not happened; or if it was thought post Begum this was a matter of discretion and it was just for the First-tier Tribunal to consider if discretion had been considered by the respondent, there should have been a finding that this had not been done.
6. In the Rule 24 with respect to ground one it is argued that there is no material error as the First-tier Tribunal adequately engages with the suitability aspect of the Rules and applied S-LTR 4.1 and 4.2 correctly. The submission now made, it is argued, was not part of the appellant skeleton argument before the First-tier Tribunal. The First-tier Tribunal Judge should be taken to understand the law and the decision is in line with that in Mahmood, and there is no requirement of a balancing exercise with respect to discretion when reasoning with respect to the exercise of discretion is adequately set out in the reasons for refusal letter under appeal. However ultimately Mr Nappey accepted that in fact that there was nothing said about discretion in the reasons for refusal letter and on application of paragraph 84 of Mahmood that there needed to be reasoning relating to this exercise. He therefore accepted that there was an error of law made out with respect to this ground given the issue was determined by the First-tier Tribunal even if it had not formed part of the appellant’s skeleton argument.
7. At the end of the hearing it was therefore agreed that the decision and all of the findings needed to be set aside except the facts accepted by both parties that the appellant had resided in the UK for more than 20 years and that the appellant had applied for indefinite leave to remain in 2005 under false name and using falsified supporting documents. It was agreed that the matter would be remade in the Upper Tribunal and directions, as set out below, were agreed with the parties.
Conclusions – Error of Law
8. The errors of law were agreed however briefly these are the reasons on which they were found.
9. Ground 1 identifies an error of law as applying Mahmood as S-LTR 4.1 and 4.2 contain a discretion which must be addressed by the respondent (see 2 of the headnote and paragraph 84 of the decision). It was a failure to be able to meet this aspect of the Immigration Rules which led the First-tier Tribunal to find that the appellant did not meet the Immigration Rules and so could not succeed in his appeal by so doing. The First-tier Tribunal Judge was obliged to correctly apply the law whether or not he or she was assisted by the appellant skeleton argument or submissions of the parties. The respondent did not provide any reasoning relating to this discretion in the reasons for refusal letter, and so the decision of the First-tier Tribunal materially errs by failing to address this.
10. Ground 3 identifies an error of law as the “real risk of serious harm” lower civil standard test is set out wrongly with respect to Article 3 ECHR at paragraphs 16 and 50 where it is said that the standard of proof is the higher test of the balance of probabilities, and as a result Ground 4 also identifies an error of law with respect to the adequacy of medical treatment as it cannot be sure that the outcome would be the same if the correct standard of proof had been applied.
11. Ground 6 identifies an error of law as the Article 8 ECHR balancing exercise is contaminated by the two errors identified above.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal dismissing the appeal.
3. I adjourn the re-making of the decision in the appeal.
Directions:
1. The respondent will file with the Upper Tribunal and serve on the appellant an addendum refusal letter addressing discretion under S-LTR 4.1 and 4.2 of the Immigration Rules in accordance with Mahmood within 10 days of the date this decision is sent.
2. 10 days prior to the remaking hearing the appellant will file with the Upper Tribunal and serve on the respondent a bundle of any updating medical and witness evidence on which he wishes to rely.
3. The remaking hearing will be listed for 3 hours with a Sylheti interpreter.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8th May 2026