Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002580
First-tier Tribunal No: PA/68304/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

SM (Bangladesh)
(Anonymity Order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant: Mr P Shea, Counsel instructed by Lawmans Solicitors
Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 16 September 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

No one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is a 25-year-old Bangladesh national who entered the UK as a student on 7 February 2022. He claimed asylum on 20 May 2022 on the basis of a claimed fear of persecution in his home country owing to his political affiliation.
2. The Respondent refused his claim in a decision dated 23 December 2022. He exercised his statutory right of appeal, which was dismissed by First-tier Mulholland in a determination promulgated on 18 March 2026, following a remote oral hearing on 2 February 2026.
3. The Appellant sought permission to appeal on multiple grounds (none of which were numbered). A fair reading of the pleadings by the FTJ considering permission was that there were seven discrete grounds, six of which related to his asylum claim. Permission was granted on “Ground 7” alone by First-tier Judge Dhanji on 20 May 2026. The other grounds were not renewed.
4. Ground 7 related to the Article 8 ECHR proportionality assessment, the Appellant’s relationship with a Bangladesh national (which started in October 2023) who is lawfully in the UK with pre-settled status under the European Union Settled Scheme (EUSS) and the Appellant’s child in the UK, who was born on 9 September 2025 (ie. 18 months after the asylum refusal letter). Evidence of that child had been admitted into the appeal as a “new matter” under s.85 Nationality Immigration and Asylum Act 2002 just before the FTT hearing itself. The Respondent consented to the new matter.
5. Ground 7 argued that there had been “[failure] to conduct a proper best interests assessment” for the child, “insufficient reasoning as to why removal is proportionate” and that the “balance sheet approach” had been applied in form but not in substance.
6. There was a 272-page Composite Bundle, including a Rule 24 from the Respondent dated 4 June 2026 [CB: 19] and a Rule 25 response in turn from the Appellant (undated) [CB: 21].
7. On 14 September 2026, I sent a Direction to both parties because the Composite Bundle did not clearly provide the Bundles/evidence relied upon at the First-tier hearing. In particular, within Section C, the Appellant’s representatives had provided post-hearing evidence, a marriage certificate dated 2 July 2026. The Appellant’s solicitor had also, in the Rule 25 reply, incorrectly stated that there had been a “supplementary witness statement” from the Appellant’s partner when the only “supplementary witness statement” at the FTT hearing was from the Appellant himself. Indeed, an absence of witness evidence from the Appellant’s partner was an issue expressly identified by FTJ Mulholland as a significant lacuna. Mr Shea, Counsel instructed by the Appellant, confirmed during the preliminary discussions that the correct bundle relied upon at the FTT hearing (ie. that which was relevant to the Article 8 ECHR issue) was the 41-page PDF, which I retrieved from Judicial Case Manager.
8. Mr Shea also clarified that, notwithstanding the diffuse structuring of the grounds, and the various ways in which the Article 8 ECHR challenge was expressed within them, the ground of appeal really turned on whether the FTJ had conducted a meaningful proportionality assessment and, critically, the degree to which the best interests of the child as a primary consideration had been integrated into that evaluation (if at all). This was somewhat different to the Respondent’s narrow focus in the Rule 24 on CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32, a case to which no party demurred.
9. I heard oral submissions from Mr Shea and then submissions by Ms Clewley, before Mr Shea replied.
Conclusions
10. FTJ Mulholland, having dismissed the protection claim, moved on to Article 8 ECHR at paragraphs 35 to 57 of the determination. She begins – logically – with the private life rule (“very significant obstacles”), albeit she cites the previous iteration (276ADE) rather than its current place in the rules at paragraph 5.1(b) of Appendix Private Life. Regardless, I am concerned with substance and not mere form. The rule itself has not changed. The structuring of the determination could be clearer: part of the FTJ’s findings and analysis on family life are within the private life section rather than after the “Article 8 ECHR” (impliedly, “outside the rules”) heading/section which follows at paragraph 45. Again, however my focus is on whether there are clear findings, and an application of those findings to the correct legal thresholds.
11. The FTJ finds that there is family life between the Appellant and his partner/wife and child in the UK, notwithstanding concerns about elements of the evidence. As noted at paragraph 39, “no supporting statement has been provided by the partner and she did not attend the hearing to support the appeal”. Despite the Rule 25 asserting otherwise, this was undoubtedly correct. The only evidence was from the Appellant himself. I note also that there was no amended Appeal Skeleton Argument at the appeal articulating the Article 8 ECHR claim.
12. Nonetheless, the FTJ was aware that the partner has leave under EUSS. The FTJ concludes, at paragraph 43, that “he has established that he has family life with his partner and child”. But she finds, at paragraph 44, that there would not be “very significant obstacles” nor “insurmountable obstacles” should any of them relocate to Bangladesh.
13. Mr Shea questioned why “very significant obstacles” was being mentioned in this family life context. I accept that there may have been an elision between the phrases “insurmountable obstacles” and “very significant difficulties” and “very significant obstacles”. The important point is that the FTJ has asked herself whether there would be “insurmountable obstacles” and this reflects the test laid out at EX.1(b) of the Appendix FM to family life continuing outside the UK, to be read in concert with EX.2, which defines “insurmountable obstacles” as “the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.
14. The Appellant’s partner could, as someone within the EUSS, at least seek to fall within EX.1(b) in principle since she is “in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d)”. Thus, reference to those threshold tests was appropriate. By contrast, it was not contended in the FTT (nor could it have been) that the child met the conditions to seek to fall within EX.1(a).
15. The reality is that the Appellant had failed to provide critical or sufficient evidence. The Appellant’s Supplementary Witness Statement dated 6 January 2026 stated that he was in a relationship in the UK with a Bangladesh national with EUSS (pre-settled) status and that he was father to a 4-month-old son. That was accepted by the FTJ. But, as to proportionality, paragraph 8 of this same statement asserted that his removal would deprive his son of a father. And this was predicated on paragraph 12 of the statement which asserted that his partner/wife and child could not reasonably leave for Bangladesh with him because “I face a real risk of persecution there and my family would be exposed to insecurity, instability and hardship”.
16. But this issue – whether family life could continue in Bangladesh – was precisely where there needed to be evidence and which the Appellant had sidestepped. FTJ Mulholland finds that no such evidence was provided. There was not even written evidence from the mother to say why she or her child could not leave the UK, let alone medical or other specific items of evidence relevant to “best interests”.
17. There appears to have been at least some oral evidence about elements of the family life in the UK and the child’s welfare because, at paragraph 44, the FTJ concludes as follows: “The Appellant, his partner and child have Bangladeshi nationality. The Appellant stated that his partner is not working at the moment and does not intend to work until the child is older. He said that the child had some breathing difficulties but has failed to produce any evidence in support of that. There was little before me to demonstrate that they could not return to Bangladesh as a family.”
18. The FTJ then reminds herself of the correct legal framework – at paragraphs 45 to 50 – before concluding that there would not be “unjustifiably harsh consequences” for the Appellant to leave the UK with his wife and the child. This phrase – “unjustifiably harsh consequences” – was for a period the Secretary of State’s favoured definition for that which is disproportionate and has been permitted so long as it flows from an assessment of proportionality in the required way: Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 [at 73]. EX.2 now speaks of “very serious hardship”.
19. All of which is to stress that, in my view, the FTJ has considered and looked for evidence about whether family life could continue outside the UK and has rationally found that there was little to no evidence to the contrary. That has directly informed her evaluation that refusal of the Appellant’s human rights claim would not be disproportionate since family life would not be ruptured and there was, in parallel, no sufficient evidence as why the child’s best interests lay in the UK rather than in Bangladesh, living inside the same family unit which the FTJ had found could reasonable relocate.
20. I re-emphasise that this was an unusual case in which there was simply no evidence at all from the wife about any issue at all, including whether she would remain in the UK. The Appellant gave written and oral evidence and the FTJ found it wanting on balance of probabilities.
21. Further, Mr Shea submitted that in these circumstances the FTJ was obliged to explicitly consider the alternative scenario – ie. whether it would be proportionate to rupture family life on the hypothetical (not even probable) basis that the Appellant’s wife and child would remain in the UK without the Appellant – but, even if FTJ Mulholland had formally done so absent any evidence from the wife, there would still have been little to no evidence of the consequences for the child beyond what is stated at paragraphs 7, 8 & 13 of the supplementary witness statement and the unspecified and unevidenced “breathing difficulties”. It would not be a material error because the strikingly weak evidence in the appeal was not capable of leading to a different outcome in the proportionality assessment. The grounds do not accuse the FTJ of failing to have regard to evidence – sensibly so, because there was so little placed in front of the Tribunal.
Notice of Decision
The determination of the First-tier Tribunal is upheld and the Appellant’s appeal is dismissed.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 September 2026