Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No.: UI-2026-001956

First-tier Tribunal No:
HU/51231/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MOHAMMED GUIZEF
(ANONYMITY ORDER not MADE)
Respondent

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr M Aslam, Counsel instructed by Farani Taylor Solicitors

Heard at Field House on 29 June 2026

DECISION AND REASONS
Introduction
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge SJ Clarke promulgated on 17 February 2026 (‘the Decision’). Although the Secretary of State is the appellant in this appeal before the Upper Tribunal, for ease of reference I shall refer hereafter to the parties as they were before the First-tier Tribunal.
2. By the Decision, Judge Clarke allowed the appeal of the appellant on Article 8 ECHR grounds outside the Rules.
Relevant Background
3. The appellant is a national of Algeria. He first entered the UK on a short-term student visa on 10 May 2016. The appellant returned to Algeria later in the same year, and he successfully applied for a Tier 4 (student) visa which was valid from 26 December 2016. He re-entered the UK on 1 January 2017, but then overstayed.
4. The appellant was invited to make an asylum application, if his claim was that it was not safe to return to Algeria and that he was in need of protection, but the appellant did not take up this invitation. Instead, on 2 August 2022 the appellant applied for leave to remain on the basis of private life established in the UK.
5. Following the refusal decision dated 12 September 2023, the appellant raised the fact that he was in a relationship with HA, who had been born abroad and who had come to the UK at the age of 7, and had since acquired British citizenship.
6. In the Review, the Secretary of State observed that the appellant’s claimed relationship with HA was not a qualifying relationship. It was also not accepted that it was a genuine relationship, particularly in the light of the appellant’s immigration situation at the time of entering into it. Additionally, the appellant’s claimed partner was not in any way obliged to go to Algeria with the appellant, and therefore this added little strength to the appellant’s Article 8 claim.
7. The Secretary of State submitted that, in addressing the Article 8 claim, the Tribunal was obliged to have regard to the public interest in effective immigration controls. In this connection, the Secretary of State drew attention to the appellant’s history as an overstayer. The appellant had had no valid leave to remain in the UK since the expiration of his visa, and he had remained in the UK unlawfully, which evidenced a disregard for Immigration Laws. In the light of the appellant’s immigration history, the public interest in the appellant’s removal from the UK was strong. The integrity of, and the public’s confidence in, the UK’s immigration system was undermined if a person was able to circumvent it, as the appellant had attempted to do by overstaying his visa. Little weight should be given to private life which is established at a time when the person is in the UK unlawfully or at a time when the person’s immigration status is precarious. The appellant should therefore have anticipated that he would not necessarily be permitted to maintain or deepen any private or family life ties indefinitely. Refusal of leave to remain was entirely proportionate in pursuit of the legitimate aim of immigration control.
The Decision of the First-tier Tribunal
8. The appellant’s appeal came before Judge SJ Clarke sitting at Taylor House in the First-tier Tribunal on 13 February 2026. The appeal was conducted on the Cloud Video Platform. The Judge received oral evidence from the appellant, HA and two further witnesses.
9. In the Decision, the Judge gave reasons for finding that the appellant had not shown that there were very significant obstacles to his reintegration into life and society in Algeria, at paragraphs [7] to [11].
10. At paragraph [12] the Judge turned to address the appellant’s relationship with HA which did not fall within the Rules as at the date of application. The Judge said that the witnesses gave consistent evidence which was not challenged regarding their relationship, and she found that they had been witnesses of truth. She placed particular weight on the evidence of HA, who was candid throughout. The Judge found at [18] that HA would not be able to visit the appellant in his home country, because it was very unlikely that she would be able to fly or travel because of her health conditions. And, in any event, she did not leave her flat often (and not at all in the past 3 months) because of her mobility and other health conditions including blood clots, fainting and auto-immune issues.
11. At paragraph [23] the Judge said that, drawing the strands together, the relationship between the appellant and HA was not challenged at the hearing. She found that it was genuine and subsisting. The appellant was very much the carer of HA, and she would need full-time care or someone living full-time with her because she could not function on her own. She accepted HA’s evidence that going into full-time care would be clinical, and she would lose the emotional support the appellant provided, which could not be provided from Algeria by modern means of communication.
12. At paragraph [25] the Judge said that HA suffered from severe depression and from anxiety with self-harm, which caused psychotic depression and she had been sectioned in the past. Since her religious marriage, her GP wrote that HA had not needed to be sectioned and her contact with Mental Health services had declined. They largely attributed this to the appellant. The Judge concluded as follows at paragraph [26]:
“In reaching my decision I have taken into account fully how caring for someone would generally not be enough because social services can provide care or move the person with health issues into full-time care, but in this case it is the fiancee, and I have found that there are very significant obstacles and undue hardship to the fiancee leaving the UK to see the appellant and live with him in Algeria, and by moving into full-time care any application by him to join her from out of the country would be thwarted by her living in full-time care having surrendered her flat and the benefits from the DWP and payments such as rent by them would cease.”
The Application for Permission to Appeal
13. A member of the Specialist Appeal Team settled the Secretary of State’s application for permission to appeal.
14. Ground 1 was that the Judge had erred in failing to have any regard to the public interest when reaching her decision. His partner was aware that he had no right to stay at the commencement of their relationship, and as such they both knew that he would at some point be required to leave the UK in order to regularise his stay. The Judge had erred by failing to apply any public interest factors when reaching her decision, including the fact that there was a strong public interest in the appellant’s removal due to his previous overstaying and attempts to circumvent immigration control.
15. Ground 2 was that it was unclear on what basis the Judge found that the appellant’s partner would be required to surrender her property if he was returned to Algeria. Whilst it might be the case that she was relying less on the Mental Health team and any associated care package that she had before the relationship began, no reason was advanced as to why any additional care could not simply be reinstated. The evidence was that she was happy with her current treatment plan, and that she had lived independently prior to October 2023, when the appellant moved into her accommodation, and therefore she could do so again. The finding that the sponsor would lose her property if the appellant went back to seek entry clearance appeared to be a finding based upon a supposition which had resulted in a material misdirection.
The Reason for the Grant of Permission to Appeal
16. On 16 April 2026, First -tier Tribunal Judge Connal granted permission to appeal on both grounds. In relation to Ground 1, it was arguable that having identified those factors on the appellant’s side of the proportionality assessment, the Judge failed to identify those factors weighing on the public interest side of that assessment, including those set out in section 117B of the 2002 Act, and/or failed to give adequate reasons as to why such factors were outweighed by those on the appellant’s side of the assessment. While Ground 2 was of less merit, it was also arguable.
The Hearing in the Upper Tribunal
17. At the hearing before me to determine whether an error of law was made out, the appellant and HA were in attendance and they sat at the back of the courtroom. Ms Ahmed developed the grounds of appeal.
18. On behalf of the appellant, Mr Aslam submitted that no material error of law was made out. The Judge had engaged with the principal controversial issues on a shorter-form basis, as Judges were now encouraged to do. But she correctly directed herself as to the public interest at paragraph [6]. She correctly directed herself that the public interest was normally in refusing leave to enter or remain, except where e a refusal resulted in unjustifiably harsh consequences for the appellant or a family member, such that the refusal was not proportionate. It was true that the Judge had not done a list of pros and cons, but this was not determinative.
19. If HA were to be sectioned on mental health grounds, he accepted that there was no evidence that she would lose her flat as a consequence of this. But this was not material to the grounds of challenge, which were orientated towards an asserted failure by the Judge to balance the public interest against the difficulties the couple would face in the event of the appellant’s removal. It was not a ground of appeal that the Judge was wrong to find that the impact of the appellant’s removal upon HA would be unjustifiably harsh.
20. In reply, Ms Ahmed submitted that it was implicit in the grounds of appeal, as pleaded, that the Secretary of State challenged the Judge’s conclusion that the impact of removal would be unjustifiably harsh. The proportionality balancing exercise needed to be conducted. The Judge had correctly directed herself as to the exercise that needed to be performed, but she had not actually performed the exercise. Ms Ahmed cited Forman (ss 117 A-C considerations) [2015] UKUT 412 (IAC) for the proposition that, in cases where the provisions of section 117B-C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.
21. After hearing from the parties, I ruled that an error of law was made out, as pleaded in Grounds 1 and 2, and that the decision of the First-tier Tribunal must therefore be set aside. I gave my reasons for so finding in short form, and my detailed reasons are set out below.
Discussion and Conclusions
22. As to Ground 1, I bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; 2004 1 WLR 1953 at para [36]. His guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…”
23. The Judge correctly directed herself as to the exercise which she needed to perform at paragraph [6] of the Decision, but she did not go on to carry out the necessary balancing exercise. She identified various factors which made it very harsh for HA to settle with the appellant to his home country, or to visit him there, and various factors which would make it harsh for HA to remain in the UK while the appellant went back to seek entry clearance. But she did not set against these factors the relevant countervailing considerations arising under sections 117B (4) and/or (5) of the 2002 Act. The Judge thereby treated the couple as if they had the protection of the EX.1 exemption, under which normative considerations do not apply, such as the qualifying partner’s knowledge at the outset of the relationship that the applicant has no extant leave to remain. But as EX.1 did not apply, the Judge needed to address the case put forward in the Review, and thus to explain to the Secretary of State why the impact of the appellant’s removal would be unjustifiably harsh and hence disproportionate. In short, the Judge failed to demonstrate that the relevant provisions of section 117B had been given full effect in her analysis, with the consequence that her finding in favour of the appellant was inadequately reasoned.
24. As to Ground 2, I take into account the guidance given by the Court of Appeal in Volpi and another v Volpi [2022] EWCA Civ 464 at paragraph [2] that an appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that the trial judge was plainly wrong.
25. It was clearly open to the Judge to find HA entirely credible in her account of her deterioration in her physical health, although there was no up-to-date medical evidence about this. It was also clearly open to the Judge to find that HA was entirely credible in the expression of her fears about being temporarily separated from the appellant while he went back to his home country to seek entry clearance. However, a review of HA’s medical history - as contained in the medical documentation that was provided to the First-tier Tribunal - does not rationally support the finding made by the Judge at paragraph [26].
26. The disclosed medical evidence shows that HA was sectioned for a period of about a month in 2017. There is nothing to indicate that she had lost her accommodation or access to the state benefits as a consequence of being sectioned. There is also nothing to indicate that HA has suffered a bout of psychotic depression, or that she has been sectioned, since 2017.
27. As the dire consequences envisaged by the Judge in paragraph [26] of the Decision are not rationally supportable, Ground 2 is also made out.
28. For the above reasons, the decision of the First-tier Tribunal is vitiated by a material error of law, such that it must be set aside and remade.
Future Disposal
29. I have carefully considered the venue of any rehearing, taking into account the submissions of the representatives. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement.
30. In the normal course of events, I would have proceeded to remake the decision based upon the evidence that was before the First-tier Tribunal, especially as the representatives were in agreement that the issues to be determined at the rehearing were narrower than those canvassed in the First-tier Tribunal. Firstly, Mr Aslam did not dispute that the Judge’s adverse findings against the appellant at paragraphs [7] to [11] should be preserved. Equally, Ms Ahmad agreed that the Judge’s finding that the appellant and HA were in a genuine and subsisting relationship should also be preserved
31. However, the representatives were also in agreement that a fair resolution of this appeal requires up-to-date medical evidence of both HA’s mental and physical conditions, and Mr Alam submitted that the appellant would need 12-13 weeks to provide up-to-date medical evidence.
32. Having reviewed the relevant CCD file, I was already aware that the appellant had had difficulties in complying with a direction on this issue made by the First-tier Tribunal, and that he had only been able partially to comply with the direction, with the consequence that the two short reports that he obtained in 2025 were of limited assistance on the issue of the impact upon HA of the appellant’s removal. For example, they were completely silent on the question of whether HA was fit to fly.
33. In the circumstances, I decided that the best course was to remit the appeal to the First-tier Tribunal for a complete rehearing on the one extant principal controversial issue, while preserving the findings of the Judge on the other issues, which are no longer in dispute.
Notice of Decision
The decision of the First-tier Tribunal contained an error of law, and accordingly the decision is set aside in its entirety, save that (1) the Judge’s findings against the appellant at paragraphs [7] to [11] of the Decision are preserved, and (2) the Judge’s finding that the appellant is in a genuine and subsisting relationship with HA is preserved.
This appeal is remitted to the First-tier Tribunal at Taylor House for a fresh hearing of the appellant’s claim under Article 8 ECHR outside the Rules, before any Judge apart from Judge SJ Clarke.
Anonymity
The First-tier Tribunal did not make an anonymity order in favour of the appellant, and I do not consider that the appellant requires to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 July 2026