Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001409
First-tier Tribunal No: HU/53795/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of June 2026

Before

UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ARFA ISHTIAQ
Respondent

Representation:
For the Appellant: Mr Jagadesham, Counsel instructed on behalf of the appellant.
For the Respondent: Mr Wain, Senior Presenting Officer

Heard on 27 May 2026

DECISION AND REASONS
1. The Secretary of State appeals, with permission, against the determination of the First-tier Tribunal (Judge Saffer) promulgated on 26 January 2026. By its decision, the Tribunal allowed the appeal against the Secretary of State’s decision dated 22 March 2024 to refuse her application for entry clearance for refugee reunion.
2. The FtTJ did not make an anonymity order, and no grounds were submitted during the hearing for such an order to be made.
3. Although the Appellant in these proceedings is the Secretary of State, for convenience we will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as “the appellant,” thus reflecting their positions before the First-tier Tribunal.
4. The appellant is a national of Pakistan. Mr A is a Pakistani national with indefinite leave to remain as a refugee in the UK . On 24 June 2022 the appellant made an application for entry clearance to join the sponsor, Mr A, for refugee family reunion under paragraph 352A of the Immigration Rules. This was refused in a decision taken on 22 March 2024.
5. The factual circumstances can be taken from the material before the FtTJ. We summarise it as follows. The sponsor identifies his sexual orientation as an openly gay man. He had been aware of these feelings since he was 13 years old (question 63) and had a sexual relationship with another man. This had not been discussed with his parents and the relationship ended when the young man had moved to a different part of Pakistan.
6. It is said that his family members started talking about him being married, the sponsor’s mother was ill and they had forced him to get married. The sponsor had stated that he tried to put this off but, in the end, he had to get married (Q173). He was married at the age of 21 to the appellant who was aged 26 (not aged 18 as the FTT to set out) in 1988. This was an arranged marriage during which four children were born. In January 2013 he became involved in a relationship with another man (Q183) and stated that “in my mind he had become my partner and we would live our lives”(Q213). It is said that his family had found out about his sexuality and described their behaviour as “very bad against me.”
7. In June 2013 he stated that he had been arrested and taken to the police station based on having a relationship with another man. He had been living in a joint family home and was told to leave. He describes his relationship then with his wife that she had found out and that she did not trust him anymore. He further stated that because of that behaviour his wife “turned very bad towards me” he left Mirpur city and went to live in Lahore. In February 2014 he left Pakistan having entered the UK using a visit visa.
8. Whilst in the United Kingdom between 2018 until January 2021, he lived openly as a gay man and had embarked on a relationship with another man. On 12 August 2019 he made a claim for asylum based on his sexuality. This is accepted by the respondent, and he was granted refugee status on 24 December 2020. He was granted indefinite leave to remain on 18 November 2025.
9. The appellant claimed that the parties reconnected in December 2021 when the sponsor became aware through distant relatives that the appellant was in a critical medical condition. It is stated that they were in constant communication with each other and that they decided to reunite given their long-standing history and mutual need for companionship and that they needed emotional and practical support in their later years. As a consequence, on 24 June 2022 the appellant made an application for entry clearance as his spouse for the purposes of family reunion under Paragraph 352A of the Immigration Rules.
10. The application was refused in a decision taken on the 22 March 2024, as it was not accepted that this was a genuine subsisting relationship or that the parties intended to live together permanently.
11. The appellant appealed the decision, and it came before the FtT on 26 January 2026. In a decision promulgated on 26 January 2026 the FtTJ allowed the appeal. The FtTJ accepted that the parties had a genuine and subsisting marriage and therefore the Rules were met.
12. The reasons given for reaching that conclusion were set between paragraphs 10 – 13 as follows:
10. I accept that the following facts are true as I have no real reason to doubt Mr Ishtiaq, as his sexuality is accepted by the Respondent, and as the challenges of young people being forced into a relationship against one’s personal feelings and sexual preferences to fit in is sadly not unique.
11. I therefore accept they had an arranged marriage in 1988, he had previously had a gay relationship, they jointly produced 4 children, and his sexuality led to tension given his lack of wholehearted engagement with the relationship and feelings for men, although she was unaware of it until 2013. I accept that following his sexuality being ascertained in 2013 he fled here due to the ill-treatment from the police and rejection by his family as none of this is disputed.
12. I accept that they lost contact in February 2014 and remained estranged for 7 years. I accept that following the ending of his relationship here, they reconnected when he found out she was ill, and they have remained in touch with each other through WhatsApp as I have no real reason to doubt it. I accept that even through it is unlikely the sexual side of their relationship will be rekindled given his sexuality, that is by no means uncommon in older couples, and a lack of sexual activity does not mean it is not a genuine and subsisting marriage, as a marriage also involves companionship, emotional and physical support, and mutual respect.
13. I therefore accept it is a genuine and subsisting marriage, and the Immigration Rules were and are met”….
The appeal before the Upper Tribunal:
14. The respondent sought permission to appeal that decision. The written grounds of challenge are as follows:
Ground 1: Failing to give reasons or any adequate reasons/ Failing to take into account and/or resolve conflicts of fact or opinion on material matters:
15. It is submitted, that in allowing the appeal, the FtTJ errs in failing to provide adequate reasons for concluding, that despite substantial evidence to the contrary the marriage between the appellant and the sponsor is genuine and subsisting. It is asserted, that it is unclear how the marriage can be considered to be a genuine one, when it is accepted that the Sponsor did not wish to be party to it and was forced by family pressures to go through with it, thus rendering any union a false one founded on dishonesty.
16. Although the Judge correctly noted that the parties remain legally married, the decision impermissibly treats the existence of a marriage as determinative, without adequately addressing whether the relationship continued/continues in substance. The contention by the appellant that since 2021 [7-8 and 12] communication resumed, and their relationship was good, runs contrary to the evidence previously provided by the sponsor (RFRL page 5) that he was until at least as recently as September 2022 (date of SEF interview confirmed relationship continued) in a relationship with a man in the UK who had been his partner since 2018. Furthermore, despite claiming to have maintained contact via WhatsApp since 2021, there has been no evidence provided to support this contention, nor has anything else been produced to demonstrate whether the parties maintain an ongoing marital relationship through emotional connection, mutual commitment, financial dependency, or a shared life in any meaningful sense.
17. It is therefore submitted that the FtTJ has failed to fully engage with the evidence before them, and to simply state that it is accepted, as there is no reason to doubt it [10-13] is based on a material misdirection in law.
Ground 2:
18. It is further submitted, that the FtTJ erred by failing to consider a highly relevant factual matter, namely the sponsor’s sexual orientation when assessing the credibility and viability of the claim to have resumed married life. While sexual orientation cannot of itself invalidate a marriage, it is plainly a relevant consideration when determining whether there is a realistic and genuine intention for the parties to live together permanently as spouses, particularly where the sponsor is an openly gay man (RFRL page 5) residing in the United Kingdom, and the parties have lived apart and had no communication for many years following an acrimonious split (RFRL page 4). It is therefore asserted, that to state that there is no reason to doubt the evidence provided indicates a lack of due diligence rendering any conclusion flawed to the extent that it is unreliable.
Ground 3:
19. It is submitted, that the FtTJ misapplied Article 8. The decision fails to establish, on the evidence, that family life exists between the parties to a degree sufficient to engage Article 8, given the lengthy separation and lack of demonstrated ongoing marital relationship. Alternatively, even if Article 8 were engaged, the Judge failed to conduct a proper proportionality assessment, including appropriate consideration of the public interest in maintaining effective immigration control given the limited nature of the family life relied upon, thus materially erring in law.
20. Permission to appeal was granted by FtTJ Micheals on 20 March 2026 for the following reasons:
“The grounds assert that the Judge erred in: (1) failed to provide adequate reasons for concluding that the marriage between the appellant and the sponsor is genuine and subsisting; (2) failed to take into account the sponsor’s sexual orientation—when assessing the credibility of the parties’ alleged intention to resume married life and (3) misapplied Article 8 ECHR by finding, without a sufficient evidential basis, that family life existed to the degree required to engage Article 8, and by failing to undertake a lawful and structured proportionality assessment. that adequately reflected both the limited nature of any family life and the strong public interest in maintaining effective immigration control. Having carefully considered the papers I find that the grounds advanced plainly identify arguable errors of law. Permission is granted on all grounds”.
21. The appeal came before the Upper Tribunal. The appellant was represented at this hearing by Mr Jagadesham of Counsel and Mr Wain, Senior Presenting Officer appeared on behalf of the respondent. We heard submissions from each of the parties. It is not necessary to set out those submissions as they are a matter of record and we intend to refer to them in our analysis of the issues raised in this appeal.
Decision on error of law:
22. We therefore turn to the issue of whether the decision of the FtTJ involved the making of an error on a point of law.
23. At the outset we remind ourselves of the need for appropriate judicial restraint in the Upper Tribunal before interfering with a decision of the First-tier Tribunal. The need for such restraint has been made clear on numerous occasions over recent years. There is no requirement for reasons for reasons and we are not looking for a perfect, or even the best possible, decision. We are concerned with whether the respondent can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings. In Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at paragraph 85 Carr LJ (as she then was) summarised some of the circumstances in which appellate interference with findings of fact might still be justified. They include:
i) Where the trial Judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
[...]
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
She continued:
86. An evaluation of the facts is often a matter of degree upon which different Judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the Judge was wrong by reason of some identifiable flaw in the trial Judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
24. Where an appellate court is satisfied that there is a material error of law, the decision will be set aside. This includes in relation to a Judge's evaluation of the evidence: MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [68]-[70] (Singh LJ). Further, if a point of evidence of significance has been ignored or misunderstood, that may be a failure to take into account a material consideration.
25. We have had the benefit of hearing and considering the submissions advanced by each of the parties and have considered them in the context of the grounds advanced, the evidence before the Judge and the issues in play. We express our gratitude to the advocates for the assistance they have both given to us.
26. There is no dispute as to the correct legal framework. The appellant’s' appeal is a human rights appeals as defined in section 82(1)(b) of the Nationality Immigration and Asylum Act 2002 (the 2002 Act). The sole permitted ground by virtue of section 84(2) of the 2002 Act is that the SSHD's decision was unlawful under section 6 of the Human Rights Act 1998 which prohibits public authorities from acting in a way incompatible with a Convention right. The relevant Convention right in this case was Article 8 of the Convention.
27. The application made by the appellant on 24 June 2022 was made under Paragraph 352A of the Immigration Rules relating to family reunion ( see p225 and P108 CB) as the partner of someone in the UK with refugee leave. There is no doubt that this was the application made as the supporting letter accompanying the application from her solicitors dated 15 July 2022(p203 CB) also confirmed the basis of the application and the relevant Rule was set out in the letter.
28. Those provisions have now been deleted from the Immigration Rules on 12 April 2023 and the relevant provisions now being included in Appendix Family Reunion (Protection).
29. The ECO considered the application made under the Immigration Rules under Appendix Family Reunion and the refusal was made by reference to FPR 4.1(b) and (d) of the Immigration Rules.
30. The ASA filed on behalf of the appellant relied upon Paragraph 352A (at paragraph 5 of the ASA) and it also referred to the guidance on Refugee Reunion. The Respondent’s review was also drafted on the basis that this was an application made for Family Reunion under Paragraph 352A of the Immigration Rules.
31. In his decision the FtTJ set out the relevant legal framework as being contained in Appendix FM-SE ( see paragraph 3 of his decision). Plainly Appendix FM-SE relates to the evidential requirements and not the substance of the applicable Rule and the reference to “SE” is likely to be a typographical error. However, the decision makes no reference to this being an application and appeal under the Refugee Reunion provisions. The FtTJ allowed the appeal on the basis that the Rules were met and therefore did not carry out the proportionality balance by addressing the public interest factors under Section 117 B ( see paragraph 13). This is of relevance as the FtTJ referred to Rules being met on the basis of there being “no other challenge to the application” . In this context as the application was refused applying the Family Reunion provisions these Rules did not require consideration of issues of maintenance and accommodation and English language which would apply under Appendix FM and thus were not considered.
32. We brought this to the attention of the parties as it appeared to be the position that the FtTJ had not considered the correct Rules. However, Mr Wain did not seek to argue this on the basis that it had not been raised in the grounds but submitted that the issue was related to the issues of whether there was a genuine and subsisting relationship and whether the parties intended to live together permanently in the UK. We note that the Respondent’s review at issue (iv) recorded that one of the issues identified was “whether the Respondent correctly applied Paragraph 352A of the Rules”.
33. In the light of that approach, we will consider the appeal on the basis set out by the parties rather than the FtTJ.
34. Paragraph 352 reads as follows:
352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the partner of a person granted refugee leave or refugee permission to stay are that:
(i) the applicant is the partner of a person who currently has refugee status granted under the Immigration Rules in the United Kingdom; and
(ii) the marriage or civil partnership did not take place after the person granted refugee status left the country of their former habitual residence in order to seek asylum or the parties have been living together in a relationship akin to marriage or a civil partnership which has subsisted for two years or more before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and
(iii) the relationship existed before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and
(iv) the applicant would not be excluded from protection by virtue of paragraph 334 (iii) or (iv) of these Rules or Article 1F of the Refugee Convention (as defined in Section 36 of the Nationality and Borders Act 2022) if they were to seek asylum in their own right; and
(v) each of the parties intends to live permanently with the other as their partner and the relationship is genuine and subsisting
(vi) the applicant and their partner must not be within the prohibited degree of relationship; and
(vii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
35. When applying the Sub-section (i) this requires the appellant to be the 'partner' of the sponsor; in the context of the rule this must be read as a term of art, that is to say one that would meet the definition of 'partner' in the Rules overall. She can meet this requirement by demonstrating that she and he were married in in 1988 and remains married as it is common ground that no divorce has taken place.
36. Sub-section (ii) requires that the marriage took place before the Sponsor left Pakistan and on the agreed chronology the appellant left Pakistan in 2014 and thus after the marriage took place.
37. Sub-section (iii) addresses a different matter and this requires that the relationship existed prior to his departure. The facts of this case are unusual as the events described in the sponsor’s interview demonstrates that the relationship they had as a married couple ended as a result of his sexuality and as described by him. From 2013 he had embarked on a relationship with a new male partner and later left the family home to live In Lahore as he stated that he was seeking to take steps to leave Pakistan and come to the UK which he did via obtaining a visit visa.
38. Whilst this had been a long marriage prior to their separation, on the facts as explained by the sponsor in his asylum claim, the relationship had ended before the applicant had left Pakistan
39. The parties had not sought to address us on the meaning of paragraph (iii) as set out above and both advocates have addressed the issues in the appeal by reference to subparagraph (v). However, it is right to observe that the respondent has raised as an issue the previous history of the relationship and thus if not relevant to subparagraph (iii) is relevant to subparagraph (v).
40. When assessing the nature of the present relationship, a third question is posed by sub-section (v): it requires that each of the parties intends to live permanently with the other and that their marriage is genuine and subsisting.
41. The overarching submission made on behalf of the appellant was that the respondent was seeking to reargue the appeal on the grounds and that it was not a case of there being inadequate reasoning but that the FtTJ believed the sponsor’s evidence and was entitled to do so.
42. In this respect Mr Jagadesham submitted that this was consistent with the approach set out in the decision of Flannery v Halifax Estate Agencies [2000] 1 All ER 373, and that the FtTJ had lawfully considered the issue as to whether there was a genuine and subsisting marriage and had reached the conclusion that he “had no reason to doubt the sponsor” and had accepted his account that they had reconnected and had remained in touch by WhatsApp messages ( see findings at paragraphs 10 and 12). Mr Jagadesham submitted that the “key finding” made by the FtTJ was that set out at the end of paragraph 12 .
43. He further submitted that given the limited issues in dispute, the FtTJ was entitled to accept the sponsor’s evidence.
44. In Flannery – v – Halifax Estate Agencies (as cited) the Court of Appeal stated:
“It is not a useful task to attempt to make absolute rules as to the requirement for the Judge to give reasons. This is because issues are so infinitely various.”
45. The following passages in the judgment of Henry LJ are deserving of full reproduction:
“(1) The duty [to give reasons] is a function of due process and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know …. whether the Court has misdirected itself and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2)   The first of these aspects implies that want of reasons may be a good self standing ground of appeal. Where because no reasons are given it is impossible to tell whether the Judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the Court entertains an appeal based on the lack of reasons itself.
(3)   The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about the events which he claims to recall, it is likely to be enough for the Judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.
(4)   This is not to suggest that there is one rule for cases concerning the witness’s truthfulness or recall of events and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the Judge must explain why he has reached his decision. The question is always what is required of the Judge to do so; and that will differ from case to case. Transparency should be the watch word.”
46. It is clear from that decision that the extent of the duty to give reasons and the reach of what is required to fulfil that duty depends on the subject matter (see paragraph 3 above) and that the extent of that duty to give reasons will inevitably vary from one case to another. What is required is “contextually fact sensitive.”
47. When applying those principles to the decision of the FtTJ we are satisfied that the grounds are made out and that the respondent has demonstrated that the decision of the FtTJ involved the making of an error of law. We set out our reasons for reaching that conclusion below.
48. We reject the submission made by Mr Jagadesham that the issues in the appeal were limited in nature. He submitted that the sole basis of challenge in the decision letter referred to the relationship that the sponsor had had with his male partner in the UK from 2018 and that it was still subsisting in September 2022 and this was the reason for disbelieving the account of their being a reconnection and a genuine subsisting relationship between the parties. He submitted that this is plainly wrong given that the interview took place in September 2020 and not in September 2022 as the decision letter set out.
49. On the relevant facts of this appeal there were a number of credibility issues raised both in the ECO’s decision letter and also as outlined in the respondent’s review. Those credibility issues from the ECO’s decision can be summarised as follows. Whilst the ECO accepted that they had married in 1988 by reference to the evidence, it was the sponsor’s evidence that the marriage had been forced upon him and therefore he was married against his will. The ECO considered that this cast doubt on the status of the relationship. This was not just in the historic context but in the sense of it now being said to be a “genuine and subsisting marriage.” The ECO raised the issue of the previous relationship and that the marriage had broken down before the sponsor had left Pakistan citing the interview replies given by the sponsor which made it clear that the appellant and the sponsor were not on good terms prior to him disclosing his sexuality and also thereafter. The ECO in this context took into account the lack of evidence of any contact between the parties relating to the resumed relationship. The ECO concluded that this cast doubt on the genuineness of the marriage and by definition the genuineness and subsistence of the relationship.
50. Mr Jagadesham is correct that the ECO did refer to the sponsor’s relationship with a man in the UK and that he had entered into the sexual relationship with him in 2018. Whilst the ECO referred to this as continuing until September 2022, the evidence was that he had remained in the relationship until January 2021. Thus, whilst the date was wrong, the point remained a good one in the context of the intention to permanently live together. This was taken together with the sponsor’s previous views and understanding of his sexuality and having stated that “I want to live with my partner openly in the UK-that’s what I’m doing I’m living.” The ECO considered that this cast doubt on the nature of the relationship now with the appellant.
51. Other credibility issues were identified later in the decision, where the ECO noted that the sponsor had married against his will and after his sexuality had been found out by family members, the relationship between the appellant and the sponsor had ended. Given the sponsor had embarked on a relationship with a man in the UK the ECO took into account that there was no evidence to show that the relationship had been rekindled. The ECO concluded that on the evidence provided it had not been demonstrated on the balance of probabilities that this was a genuine and subsisting marriage and that the parties intended to live together permanently.
52. The Respondent’s Review following the service of the ASA also highlighted a number of credibility issues which were said to be relevant to the assessment of the core issue. They can be summarised as follows. Whilst the respondent accepted that they had been married in 1988, it was not accepted that they had provided evidence of “family life”. In this context the respondent set out the claim made that they had reconnected due to the appellant’s “serious health issues” which had led to “consistent communication.” Reference was made to the medical letter but that the appellant had failed to provide any evidence that they had recommenced such a relationship via contemporaneous communication records and absent evidence of that continuing relationship, it was not accepted this was a genuine and subsisting relationship. Paragraph 14 of the review also referred to the failure to produce evidence of any reconnection within the relationship.
53. We are satisfied that the FtTJ erred in law by failing to give adequate reasons to support the conclusions reached at paragraph 13 where he concluded that it is a genuine and subsisting marriage in light of the number of credibility issues raised on this particular set of facts which were not addressed. The FtTJ was required to set out his reasoning on the core issue and to demonstrate how he had reached that conclusion. It is not sufficient in our judgement in a case where there were significant credibility issues raised to state that he had “no real reason to doubt” the evidence of the sponsor. There may be cases in which such an approach is permissible. However, in a case in which the respondent has raised cogent concerns as to the credibility of a witness’ evidence, the decision must contain sufficient reasons as to entitle the respondent to understand why those submissions have been rejected. Whilst the decision can leave the informed reader with no doubt that the FtTJ rejected the respondent’s submissions, it does not entitle the reader to understand why. This, in our judgment, is a material legal error.
54. Whilst we are satisfied that the FtTJ did not treat the formal marriage in 1988 as determinative of the appeal as Mr Wain had submitted, we are satisfied that the FtTJ failed to factor into his assessment and as relevant to the adequacy of the reasoning, the earlier history of the marriage and the sponsor’s own evidence that the parties had separated before he left Pakistan. This is not addressed in his findings of fact at paragraph 11. Whilst the FtTJ referred to the circumstances whereby the sponsor’s sexuality was ascertained in 2013 and he fled due to ill treatment by the police and rejection of his family ( see paragraph 11) and that the sponsor “lost contact in February 2014 and remained estranged for seven years, “the FtTJ failed to take into account in his assessment not only had this been a marriage that the appellant had not wanted, but that he had embarked on a sexual relationship with another man in January 2013 and the sponsors evidence he wanted that man to become his partner so that “they could live their lives” (Q213). Also that the parties in fact separated in June 2013 and that this was an acrimonious separation on the evidence of the sponsor where he had referred to his wife’s behaviour as “turning very bad “towards him and that the sponsor’s evidence was that he had left the family home and had gone to live in Lahore before finally leaving for the UK in February 2014. This was raised in the decision letter as a relevant consideration when assessing the genuineness and subsistence of the relationship as it stood now but also the intention of the parties to live together permanently.
55. At paragraph 12 the FtTJ referred to them having lost contact in February 2014. We observe that that was not in accordance with the sponsor’s evidence. He had stated that he had not been in contact with his family since 2014 but when questioned about this in interview he identified that he had last spoken to his son, not identifying his wife, which had taken place one week after he had come to the UK (Q36). This is not simply a case of losing contact but as Mr Wain submitted it concerned the previous circumstances of an acrimonious separation prior to the sponsor leaving Pakistan and in the context of the factual claim made.
56. Whilst Mr Jagadesham submits that contrary to ground 2, the FtTJ did take account of the sponsor’s sexuality when making his assessment and relying on paragraph 12, we are satisfied that this submission does not address the complaint made in the grounds. We agree with Mr Jagadesham that the FtTJ was aware of the sponsor’s sexual orientation as an openly gay man. He referred to the sponsor’s sexuality being accepted by the respondent (see paragraphs 6 and 10) and further accepted that he had left Pakistan due to his sexuality. He was further aware that the sponsor had a relationship with a man in Pakistan but also in the UK (paragraph 7). However, as identified in the grounds what was missing was an assessment of that relevant factual matrix when addressing the issues of credibility of the claim that he had resumed married life. As the ground correctly points out, while sexual orientation itself does not invalidate a marriage it is a relevant consideration when determining not only if the relationship with the appellant was genuine but also whether it was subsisting and that they intended to live together permanently as spouses. This was set out in the decision letter by reference to the previous acrimonious circumstances before he left Pakistan. This was to be taken alongside the long-extended period of no contact whatsoever and in circumstances where the sponsor embarked on a serious long-term relationship with a man which had only ended in January 2021 and in circumstances where the sponsor had explained that it was in his mind to live with his partner openly in the UK, so that he was “living his life”. We are satisfied that the decision demonstrates that he did not factor that into his assessment.
57. Against that factual background the FtTJ’s acceptance that they had reconnected with each other through WhatsApp as he had “no real reason to doubt it “failed to address those credibility issues in his reasoning.
58. As the grounds set out in the light of these particular factual circumstances and where the relationship was plainly in issue, the lack of any evidence supporting their claim of consistent communication from December 2021 until June 2022 when the application was made for entry clearance and indeed even up to the date of the hearing, was plainly a relevant consideration. This is because the relevant Rule that was applicable in effect asks three questions about the relationship-not only that it has does it have legal form but was there a relationship of substance prior to the refugee's flight and is there a relationship of substance today. As identified in the decision of GA (“Subsisting” marriage) Ghana *[2006] UKIAT 00046 what is required is an assessment of the nature of the current relationship between the parties which takes into account the context of the history of the relationship and to assess whether and to what extent this illuminates the nature of the present relationship and future intentions of the parties (see paragraph 14 of GA (as cited)).
59. Whilst we accept it was open to the FtTJ to accept that they had remained in touch via messages, the fact that they had sent messages by itself said nothing about the nature and substance of the relationship and provided no evaluative assessment of the relationship to demonstrate compliance with the Rules.
60. We reject the submission made by Mr Jagadesham that the key finding made in the final sentence of paragraph 12 was sufficient reasoning. The FtTJ stated: “ I accept that even though it is unlikely the sexual side of their relationship will be rekindled given his sexuality, that is by no means uncommon in older couples, and a lack of sexual activity does not mean it is not a genuine and subsisting marriage, as a marriage also involves companionship, emotional and physical support, and mutual respect.”
61. Whilst the FtTJ identified in that paragraph the ways in which a marriage can exist - that is not only by way of a sexual relationship but also a marriage can involve companionship, emotional and physical support and mutual respect, the FtTJ failed to make any specific findings of how or in what circumstances these factors were present in the relationship under scrutiny. There was no evidence before the FtTJ of any emotional support, physical support or mutual respect. In relation to the latter, the parties separated before the sponsor left Pakistan in acrimonious circumstances and where there was no mutual respect. There had been no discussion or assessment of the substance of the conversations to demonstrate any emotional dependence upon each other, nor evidence of any other ongoing matters of family life. We are therefore satisfied that this lack of findings demonstrated a gap in the reasoning which also undermined the conclusions reached.
62. For those reasons we are satisfied that the decision of the FtTJ involved the making of an error on a point of law and that the decision should be set aside. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective we are satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, when reaching a decision and thus we are satisfied that the appeal should be remitted to the FtT for hearing.

Notice of Decision:
The decision of the FtTJ involved the making of an error of law and the decision of the FtTJ shall be set aside and remitted to the FtT.

1 June 2026
Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds