Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001815
First-tier Tribunal No: HU/59147/2024
LH/01641/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

AFZOL MIAH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z. Hussain, Solicitor Advocate
For the Respondent: Mr J. Nappey, Senior Home Office Presenting Officer

Heard at Field House on 24 June 2026

DECISION AND REASONS

1. The appellant, a citizen of Bangladesh, appeals against the decision (“the decision”) of First-tier Tribunal Judge Mulholland (“the judge”) dated 5 February 2026. That decision dismissed the appellant’s appeal against the respondent’s decision dated 3 July 2024 to refuse the appellant’s human rights claim made on 24 October 2022.

2. The appellant’s immigration history prior to that human rights claim was as follows. The appellant obtained valid student entry clearance from December 2009 and entered the United Kingdom the following month. In May 2011 he applied for leave to remain under student rules, which was granted. In February 2015 he applied for leave to remain under family and private life rules, but this application was voided in July 2015. The previous month he had applied for leave to remain as a Tier 2 general migrant, which application was refused with an administrative review in August 2015; that decision was maintained in September 2015 following a further administrative review. In September 2020 the appellant applied for leave to remain under family and private life rules which was refused with an out of country appeal in May 2021.

3. In June 2022, some four months before the claim before the judge was made, the appellant married the sponsor in an Islamic ceremony. Their marriage was registered in September 2023. Their only child was born in June 2025; and they live together in the United Kingdom as a family. The sponsor is a Bengali national; and has indefinite leave to remain.

4. The appellant and the sponsor each claim that they have a strong support network in the United Kingdom, but none in Bangladesh. The appellant claims that his father and wider family disowned him after two higher education establishments into which he was enrolled lost their licences. The appellant thereby lost the money he had paid to enrol; and the appellant’s father, who had provided that money, surmised that he had been tricked by the appellant. Meanwhile, the sponsor claimed that she had been disowned by her family for having been in a relationship with the appellant pre-marriage; and also because she and her wider family had been harassed by her ex-husband.

5. The appellant and sponsor also rely upon their each having mental health difficulties that, they say, may be addressed in the United Kingdom but not in Bangladesh. The parties’ first pregnancy resulted in stillbirth; and the sponsor has a history of miscarriages, which is said to have contributed to her mental health difficulties. The sponsor’s mental health was also adversely affected by abuse perpetrated upon her by her ex-husband.

6. The grounds of appeal (“the grounds”) are dated 19 February 2026 and may be summarised as follows.

a. Ground 1: the judge failed to conduct a proper best interests assessment.
b. Ground 2: the judge made a material misdirection on the insurmountable obstacles test.
c. Ground 3: there was irrational treatment of the expert psychiatric evidence.
d. Ground 4: the judge gave inadequate reasons on the Sponsor’s evidence.
e. Ground 5: the judge failed to conduct a proportionality assessment.

7. Permission to appeal on all grounds was granted by First-tier Tribunal Judge Le Grys on 13 April 2026.

8. In his submissions today on behalf of the appellant, Mr Hussain has concentrated on the second ground and adopts the observations made by Judge Le Grys in paragraphs 3 and 4 of the grant of permission to appeal:

“I shall deal with ground two first as this appears to be the most arguable. At [10] and [11] the Tribunal correctly identifies the “insurmountable obstacles” test as relating to difficulties in family life continuing outside of the UK. In its analysis, however, the Tribunal arguably fails to engage directly with obstacles to family life, and instead arguably considers the test solely by reference to the asserted practical difficulties that both the Appellant and Sponsor would individually face on return.”

“References are also made within this part of the analysis to other tests, for example whether there are exceptional circumstances outside of the Rules (at [37]), before the section concludes with a finding that there would not be “insurmountable obstacles to…integration into Bangladesh” (at [42]). Read together, it is arguable that the Tribunal has conflated different tests, namely insurmountable obstacles, very significant obstacles to integration, and exceptional circumstances outside of the Rules, and has accordingly made a material misdirection in respect of the correct test to be applied.”

9. Mr Hussain contends that it is not just arguable that there is an error of law for the above reasons, but that there manifestly is an error of law. Those reasons essentially divide into two points: whether the judge properly applied the insurmountable obstacles test; and/or whether she misdirected herself by conflating different tests.

10. I do not consider that the judge has fallen foul of the first point. There is no dispute that she identified the correct test at [10] and set it out correctly at [11]. The judge has also cited R v SSHD [2017] UKSC 11 at [15] and [16]. In my view, the judge demonstrates at [42], with the use of the compound conjunction “and/or”, that she understands the test can only be correctly applied if the appellant and the sponsor are considered, with their child, a family unit:

“Accordingly, I am satisfied that there would not be insurmountable obstacles to the Appellant and/or his spouse and child’s integration into Bangladesh.”

11. This clarifies the judge’s analysis at [22] to [41], which follows from [20]:

“To apply the test in what Lord Reed in the Agyarko case at para 43 called "a practical and realistic sense", it is relevant and necessary in addressing these questions to have regard to the particular characteristics and circumstances of the individual(s) concerned.”

12. The judge has not fallen into the error of concentrating only on the separate hardships facing the appellant and the sponsor on returning to Bangladesh, without analysing their impact on the family’s ability to live together. Rather, the judge has looked at each of the matters relied on by the appellant and the sponsor and concluded that there would not be insurmountable obstacles to the appellant integrating into Bangladesh as an individual or with his wife and child. The contention that the cumulative effect of the matters relating to each of the appellant and sponsor, properly analysed together, would have met the Agyarko threshold is not made out.

13. As to the second point, it is right that the judge has referred to the very significant obstacles test (at [36] and [37]) shortly before concluding that there would not be insurmountable obstacles to integrating into Bangladesh at [42]. However, I do not consider that the judge has conflated the two, nor conflated them with the exceptional circumstances outside the Rules test. As observed by Mr Nappey, for the respondent, the very significant obstacles test and the exceptional circumstances outside the Rules test are considered separately, and under separate headings, later in the decision: from [43] for the former and from [47] for the latter. Reading the decision as a whole, it is plain that the judge has not misdirected herself by conflating different tests. The structure of the decision does not impede its clarity.

14. The second ground is argued more widely in the grounds than the two points that Judge Le Grys concentrated on. It is further argued in the grounds that the judge’s adverse credibility findings are either perverse or inadequately reasoned. In the light of the order of Mr Hussain’s submissions, I will address the points raised in respect of the appellant’s evidence in my consideration of ground 3, and those in respect of the sponsor’s evidence in my consideration of ground 4.

15. The focus of ground 3 is on the expert psychiatric report by Dr Razia Hussain dated 15 June 2024 (“the report”). At the time of the decision, it was therefore around a year and a half old. Paragraphs 11 and 12 respectively set out her recommendations and her evaluation of risks and prognosis. I set these paragraphs out below.

“[11] Mr Miah needs to improve his mental health by receiving treatment with Antidepressants and Psychological intervention. His present risk of self-harm is low but if the current symptoms are left untreated his condition may worsen to the extent that it becomes resistant to treatment and also risk of self-harm may reach to an imminent risk level.

i. I would recommend that Mr Miah start taking Antidepressants (Mirtazapine, 15mg/day), which may be beneficial for improving Mr Miah’s mental health.

ii. Mr Miah may also benefit by Psychological psychotherapeutic approaches such as Cognitive Behavioural Therapy (CBT). This is a technique that can be used to help people better understand the thoughts and feelings that lead to potentially problematic behaviours. This treatment can be provided by the local Primary Care Mental Health Services.

“[12] If Mr Miah does not adhere to the ongoing or recommended treatment regimen, his symptoms may worsen. However, if he follows the recommended treatments, including the use of antidepressants, his prognosis is likely to be satisfactory.”

16. It is to be noted, as Mr Hussain accepted, that there is a difference in the recommendation at paragraph 11(i) where Dr Hussain states that she “would recommend” taking antidepressants, and paragraph 11(ii) where she says that the appellant “may benefit” from such therapy as CBT. This is echoed at paragraph 12, where antidepressants are expressly mentioned but CBT is not. I see from the GP surgery letter dated 11 June 2024 (“the GP letter”) that the appellant has in fact received CBT as provided by the NHS; and Dr Hussain states at paragraph 2.8 of her report that she has received Talking Therapies documentation in respect of the appellant.

17. Dr Hussain also stated at paragraph 9.2 that there was “no evidence of any formal thought disorder”. That paragraph reads in full:

“Mr Miah's speech was low in volume and normal in rate, coherent, rational and appropriate. The contents were mainly related to his personal circumstances and future risks. His mood has been apprehensive objectively and subjectively. There were periods of slowness of his thought processes, which gave evidence of his preoccupation with worries and current problems. However, there is no evidence of any formal Thought Disorder or any other psychotic symptoms at this stage. There is also no evidence of auditory or visual hallucinations.”

18. Her opinion, expressed at paragraph 10, was rather that “his symptoms fulfil the criteria of Mixed Anxiety and Depressive Disorder”.

19. Considering the report, the judge noted at [27] that there was no evidence of any formal thought disorder. She went on at [29] to find:

“The BGD CIN Medical treatment and healthcare note 10, which provides information on the mental health treatment and healthcare in Bangladesh. As per the psychiatric report, the Appellant has been recommended Mirtazapine for his mental health. This drug is available in Bangladesh as stated in Note 10.1.4. The medical evidence fails to meet the high threshold in Article 3 (Medical), as suitable treatment is available on return to Bangladesh.”

20. Mr Hussain argues that the judge has failed to give adequate reasons as to why the report is out of date, how and why the absence of a formal thought disorder impacts on the appellant’s acknowledged mixed anxiety and depressive disorder, and why the report is invalidated by the passage of time. Moreover, Mr Hussain says that the judge’s analysis of the availability of treatment in Bangladesh at [29] is superficial: in particular failing to take into account that the appellant would not be returning to Dhaka, where the provision of the little available treatment is concentrated, but Sylhet, which is even less provided for and from which the appellant would not have the financial means to travel to Dhaka (nor, even if he did, the financial means to pay for that treatment).

21. I do not consider that these arguments are made out. As above, Dr Hussain said no more than that the appellant may benefit from CBT or like treatment. She did not say that he would. A careful reading of her report shows a clear distinction between her concluding that antidepressants would help, and therapy that might. The judge at [29] draws that distinction in referring specifically only to Note 10.1.4 and Mirtazapine, as expressly recommended by Dr Hussain. When the judge goes on to note at [30] that “suitable medication is available and/or the assessment of medical professionals prior to departure”, she means exactly that: medication is available as part of a care package pre- and post-departure for Bangladesh. She did not consider whether CBT or like treatment would be because, as above, Dr Hussain did not go so far as to say that the appellant would benefit from CBT. As such, the submission that the judge failed adequately to consider the affordability and availability of therapeutic treatment falls away. As to the distinction between a formal thought disorder, which Dr Hussain did not diagnose the appellant with, and mixed anxiety and depressive order, which she did, the reasons for her conclusions are set out at paragraphs 9.2 and 10 of the report. Dr Hussain states that “depression is a serious mood disorder”, but this is to be contrasted with psychotic symptoms and auditory or visual hallucinations, for which there was no evidence that the appellant suffers from. That Dr Hussain used the word “serious” to describe depression as a condition does not in itself require the judge to expand upon the ramifications for depression being serious. The judge did not need further to explain what Dr Hussain already has. The judge was entitled to rely upon the report and did not need further to explain a distinction that Dr Hussain already had.

22. That leaves only the question of whether the judge was wrong to discard the report for being “out of date”. For the reasons above, I do not see that the judge did discard the report: in fact, she relied upon it. The judge was entitled to take into account that it was, at the time of the decision, more than eighteen months old. But the evaluation of it at [26] and [27] demonstrates that the judge in finding the report out of date did not go on to dismiss it outright. In specifically referring to Mirtazapine at [29], the judge plainly had the report in mind: the GP letter states, as do his medical records, that the appellant had been prescribed Amitriptyline, not Mirtazapine. As the judge did not discard the report, she did not need to provide reasons for discarding it.

23. I will now address the wider points raised by Mr Hussain in respect of the appellant’s evidence. The appellant maintains that the adverse credibility findings made in respect of him at [23] to [25] are unsafe in the light of [4], where the judge states:

“The appellant and his spouse have health issues. I have taken into account the guidance in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123, the First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses Practice Direction which was issued on 30 October 2008 and the Joint Presidential Guidance Note 2 of 2010.”

24. I set out [24] in full.

“The appellant did not perform well under cross examination and was unable to state which degree he had achieved in the United Kingdom. No documentary evidence of him having obtained a degree or applying for a post study work visa has been produced. All the appellant could say was that he had obtained a level 7 diploma. The question was put to him in a number of ways to ensure that despite his mental health issues he should be able to understand the simple question. I am not satisfied that the appellant has studied to a degree level because if he had, even with mental health issues, it is reasonable to expect that he would remember the name of the degree, particularly as he claims to have studied for it for four years.”

25. The appellant argues that the judge merely cited the guidance at [4] without going on to apply it. This however is not borne out by the judge recording that the question of which degree he had achieved “was put to him in a number of ways to ensure that despite his mental health issues he should be able to understand the simple question”. It is evident that the judge was alive to the impact that vulnerability may have on the clarity of the appellant’s evidence: [24] sets out an example of how she applied the guidance she correctly set out at [4]. It was open to the judge to make the findings that she did at [23] and [24]. I consider that the findings at [23] and [24] are safe.

26. It is argued by Mr Hussain that [25] does not follow from [23] and [24]. The short paragraph [25] reads:

“Having considered this part, I am not satisfied that the explanation the appellant has given for no longer having contact with his family has been substantiated.”

27. I do not agree that there is not a non-sequitur. The adverse credibility finding in [24] is clearly reasoned and supports [25]. It is [23] however that provides the direct link:

“The appellant claims that he has lost touch with his family in Bangladesh because he failed to repay a loan after he failed to complete his studies. At the hearing his evidence was unreliable and inconsistent. He stated that he initially entered the United Kingdom to study but had difficulties with a college IT course and could not complete it. He then did an online management course and completed it gaining a degree. This is at odds with his explanation that he could not repay his parents because he could not afford to do so yet at the same time said that the plan was for him to get his degree, find work and repay them. The appellant has not demonstrated that he could not find work. He could have returned to Bangladesh with his degree to obtain employment and repay his parents. Instead, he remained in the United Kingdom without leave and without a job.”

28. It is clear that [25] is in effect a re-statement of [23]. It does not assist the appellant to say that he provided a witness statement that sets out the background for his alleged family estrangement: that statement dated 6 January 2025 was challenged in cross-examination and the judge found at [23] his oral evidence as to failing to repay his parents to be unreliable and inconsistent. The judge was therefore unsatisfied at [25] that the appellant is estranged from his family. There is no gap in the judge’s reasoning and nothing in ground 3 that amounts to a material error of law.

29. Turning to ground 4, the appellant argues that the credibility assessment of the sponsor at [32] to [35] is unsound. I reproduce those paragraphs of the decision herein. It is to be noted that the judge at [4] expressly considered the vulnerability of the sponsor as well as that of the appellant.

“[32] At the hearing, the appellant's wife claims that she cannot return to Bangladesh because her family have disowned her because she was in a relationship out with marriage. She could move elsewhere as she is an adult, a married woman and a mother and therefore is not dependent on her parents.

“[33] However, her initial position was that she could not return to Bangladesh because her parents did not want anything to do with her because of the harassment her ex-husband caused her/them. It is difficult to understand why her parents would disown her for being harassed by her ex-husband who was domestically violent towards her rather than them being sympathetic towards her. The appellant's wife has a good relationship with her two sisters in the United Kingdom and in the circumstances, I am not satisfied that a reasonable explanation has been provided to explain her parents’ abandonment of her.

“[34] She stated for the first time orally at the hearing that her family had disowned her because of the shame she had brought upon them because she had been in a relationship with the appellant before they were married. This is hard to accept as she did not mention this sooner. Accordingly, I attach little weight to her explanation and I am not satisfied that she is not still in contact with her family in Bangladesh who could support her if she chooses to accompany her husband. She did not present any paperwork to substantiate her claim and immigration route into the United Kingdom.

“[35] This means that the appellant has failed to satisfy me that there are insurmountable obstacles to his spouse returning to Bangladesh. She too has some health conditions as referred to in the medical records however these can be treated and managed in Bangladesh, with the support of the appellant (her husband) and her child to assist in her recovery, or with her parents and extended family.”

30. Mr Hussain argues that the judge was wrong to consider the sponsor’s explanations that she was estranged from her family because (a) of the harassment caused by her ex-husband as contradicting (b), that she formed a relationship with the appellant before their marriage. Mr Hussain is right to say that the two explanations are capable of being complimentary. However, the judge’s concern was not that the explanations were contradictory, but that the latter was only raised in her oral evidence. That something so fundamental was raised so late was what, in the judge’s view, told against the sponsor’s credibility.

31. Mr Hussain also raises that there appears to be an error at the end of [34] where the judge states that she “did not present any paperwork to substantiate her claim and immigration route into the United Kingdom” where in fact she provided her Biometric Residence Permit card. It is said that this apparent unfamiliarity undermines the overall credibility assessment of the sponsor. I do not consider that it does so. The supposed lack of paperwork does not otherwise feature in the judge’s credibility assessment at [32] to [35]: it is plain from reading [32] to [34] as a whole that the major plank in the judge’s reasoning is the lateness of the sponsor’s second explanation for her family estrangement. Insofar as this is an error, it does not amount to a material error of law.

32. As to [35], Mr Hussain makes similar arguments in respect of the availability of treatment for the sponsor as he does for the appellant. The sponsor’s GP letter dated 19 October 2022 confirms that she has been referred to Talking Therapies. She says in her statement dated 6 January 2025 at paragraph 6 that both she and the appellant have received psychiatric support for their trauma, which in the case of the sponsor includes past domestic abuse and the stillbirth of the appellant’s and sponsor’s child. Just as the appellant requires treatment that will be out of reach in Bangladesh, says Mr Hussain, so does the sponsor.

33. I will not repeat what I have already determined as regards the appellant’s need for treatment. As to the sponsor’s need, I note that the most recent entry in her medical records is from November 2022. The only more recent medical evidence submitted by the sponsor is her maternity clinic appointments card, which lists the appointments she attended in the first quarter of 2025. The judge at [39] observed that: “There is no up-to-date information on her mental health, nor is there any information which suggests that she is currently undergoing treatment”. The judge was entitled to find that there was no up-to-date information. As to treatment more widely, at the time of the appeal before the judge their only child had been born, and so antenatal care is no longer relevant. The judge’s finding at [42] that there would not be insurmountable obstacles to the sponsor integrating into Bangladesh with the appellant and their child is sound.

34. Finally, I will take grounds 1 and 5 together. Mr Hussain, observing that section 55 of the Borders, Citizenship and Immigration Act 2009 (“section 55”) requires that the best interests of the child be treated as a primary consideration, argues that there is no specific reference to section 55 and barely any reference to the child. Mr Hussain submits that there are only two direct references to the child at all: one at [40] where the judge states "She is a Bengali national as is the child. They could return permanently if they choose to do so."; the other at [53], where the judge finds the family "could return together". Taken together, [40] and [53] do not amount to identifying what the child’s best interests are, going on to give those interests appropriate weight as a primary consideration, and then weighing them against the countervailing public interest. Rather, says Mr Hussain, the judge went on to the proportionality balance without first assessing the child’s welfare: in particular failing to identify the child’s British citizenship as a matter of particular significance, and failing to identify the child’s lack of ties to Bangladesh and lack of family and medical support awaiting the child (and family) there. In sum, says Mr Hussain, there is no concrete analysis in the decision of what it would look like for this child to go to Bangladesh: only the observation that the child could, in principle, relocate thereto.

35. It is not disputed by Mr Nappey that there is no specific reference to section 55, nor any specific reference to the child being a British citizen (indeed, [40] reads only that the child is a Bengali national). However, says Mr Nappey, section 55 is implicit through the whole decision; and there are sufficient references to the child in the decision that it is plain the judge has had regard to the need to safeguard and promote the welfare of the child. Indeed, [2] of the decision specifically notes that “The appellant seeks to remain in the United Kingdom ("UK") on the basis of his family life with his spouse and child who have indefinite leave to remain and are settled here”. The reality, says Mr Nappey, is that with a child so young and so dependent upon her parents, that an analysis of her best interests may be understood from the decision without it having to be spelled out dogmatically. It is self-evident that, now barely a year of age and less than that at the time of the decision, that the child has not yet had the opportunity to forge cultural links. The judge did not supply further analysis of the child’s best interests because further analysis was not warranted.

36. The appellant’s criticism of the judge per grounds 1 and 5 is similar to that made by ground 2: as to the latter it was argued that the judge had conflated tests; here it is argued that the judge has elided the statutory duty under section 55 and moved straight to an (inadequate) proportionality assessment. Having regard to the decision overall I am satisfied that the decision demonstrates that the judge was alive to the assessments that she was required to conduct in respect of the child, and that she did so without error. There are sufficient references to the child to satisfy me that this is the case; and the judge’s assessment of the family’s circumstances cannot be said to be merely cursory. The judge, as I have set out above, provided clear reasons for her adverse credibility findings in respect of both the appellant and the sponsor; and she therefore did not accept the appellant’s case as to why he should not return to Bangladesh, nor the difficulties the appellant and sponsor say face themselves and/or their child in Bangladesh. The judge did not have to conduct the necessary assessments in the context of circumstances she already found did not apply. As with the other grounds, there is no material error of law here.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and stands.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 July 2026