Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002798
First-tier Tribunal No: PA/65075/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 September 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BILAL ZIAB KHAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Martin, counsel
For the Respondent: Mr Parvar, Senior Presenting Officer

Heard at Field House on 1 September 2026

DECISION AND REASONS
Introduction and Background
1. The appellant appeals with permission against the decision, dated 19 December 2025, of a judge of the First-tier Tribunal (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
2. The appeal before the First-tier Tribunal (‘the FtT’) arose in the context of claims for international protection and on Article 8 family life and private life grounds. The grounds of appeal which sought to challenge the judge’s conclusions on the international protection claim did not attract permission to be argued before me and I need say no more about the judge’s decision to dismiss this aspect of the appeal. Permission was granted solely in respect of various arguments directed to the judge’s analysis of the Article 8 human rights claim.

The FtT Decision
3. The judge’s decision is exceptionally detailed and lengthy, running to some 77 paragraphs. It would overburden my decision to summarise it at length. Below, I address the parts of the decision which are particularly important and which were the focus of the rival submissions.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on various grounds. Permission was granted for the following four grounds to be argued:
i. Ground 1: Misapplication of the Article 8 Proportionality Test and GEN.3.2 – Unjustiﬁably Harsh Consequences.
ii. Ground 2: Reliance on Hypothetical and Speculative Scenarios (Irrational Reasoning).
iii. Ground 3: Failure to Conduct a Lawful and Structured Section 55 Best Interests Assessment.
iv. Ground 8: Unlawful and Irrational Inferences from Financial Evidence.
5. In a decision dated 18 June 2026, a Deputy Upper Tribunal Judge granted permission for the four grounds referred to above to be argued. The following observations were made in relation to grounds 1-3:
Ground 1: Dismissing the appeal despite finding at [73] that the removal of the Appellant alone would result in unjustifiably harsh consequences for his wife and children if they were to remain in the UK without him.
Whilst I appreciate that the wording in [73] is not ideal, I consider that in the final sentence, the Judge is effectively finding that the Appellant and his family cannot hold the state to ransom by choosing to have their family life in the UK when they can continue to have family life together if the Appellant’s wife chooses to return to Pakistan with him, which is a choice that is open to her. Simply because she has extant leave in her own right (such that she does not have to leave nor be compelled to do so) does not mean she cannot choose to accompany the Appellant back to Pakistan. However, it is at least arguable that the finding of unjustifiably harsh consequences in the scenario where the Appellant leaves alone is sufficient for the appeal to have succeeded. In relation to that finding, I would highlight the Judge’s earlier, arguably contradictory, findings in [39] that he cannot properly assess the Appellant’s care role and that the wife’s mental health condition is not so severe as to have a materially negative impact on her ability to function in her roles as student, worker and mother, and also in [40] that both parents provide additional care to the elder child with developmental challenges.
Ground 2: Relying on alternative hypothetical scenarios of the Appellant returning alone, or returning with the children whilst his wife remained, in order to dismiss the appeal.
I do not consider there is any error here as, given the wife has leave in her own right, the Judge was obliged to consider whether the Appellant could return to Pakistan alone or with his wife and children. However, I appreciate it is related to ground 1.
Ground 3: Failing to conduct a structured assessment of the best interests of the children.
The Judge considers the children’s best interests in [64] of the decision and makes a clear finding that it is in their best interests to be with both of their parents, whether in Pakistan or the UK. He also finds in [74] that it would not be in their best interests to be separated from their mother. It is unclear what evidence is relied upon to say the Judge could have undertaken a more in-depth or structured assessment. I find this ground is in the nature of mere disagreement but appreciate it is somewhat related to grounds 1 and 2.
6. Mr Martin appeared on behalf of the appellant following his instruction in the days leading up to the error of law hearing. He was initially hampered by not having available to him the consolidated hearing bundle prepared by the tribunal’s administration for the benefit of the then-unrepresented appellant. Mr Parvar was in a similar position in that he too did not have the consolidated hearing bundle. I was greatly assisted by my clerk who provided the advocates with the hearing bundle. I stood the matter down to allow them time to digest the material. When the matter was called back on, both Mr Martin and Mr Parvar were content for me to proceed to hear oral argument. I address any submissions of significance in the discussion section below.
Discussion
7. In MN (Vietnam) v Secretary of State for the Home Department [2026] EWCA Civ 485, the Court of Appeal set out the principles which should guide the analysis of whether judicial reasons are lawfully adequate. Between [34] and [36], Dove LJ drew together the leading authorities:
[34] […] The question which then arises is by what standard those reasons are to be judged in order to determine whether or not they are legally adequate. Whilst given in a different public law context, the observations of Lord Brown of Eaton under Heywood in South Bucks County Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36 provide an important statement of principle applicable in the current context:
“36. 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…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[35] Accompanying these principles, it is also necessary to observe that the decision, in this case the FtTIAC determination, must be read as a whole and in context. Part of that context is that examining the determination’s reasons should be approached and undertaken purposefully, with the object of obtaining an understanding of the decision and its basis. It should not be read or construed in a manner more appropriate to a contract or statute. It requires what Lord Bingham MR described as a “straightforward down to earth reading” of the determination which seeks to identify whether there is “room for genuine as opposed to forensic doubt” as to what has been decided and why (see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263).
[36] This approach to the standard of reasons required as a matter of law can be set in the general understanding of approaches to appeals in respect of tribunals within the Immigration and Asylum Chamber provided by Lord Hamblen at paragraph 72 of HA (Iraq) v SSHD [2022] 1 WLR 3784; [2022] UKSC 22:
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”
8. In addition to the above statements of principle, the Upper Tribunal’s jurisdiction to decide whether an FTT decision involved a material error of law was recently considered by the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 W.L.R. 4055. At [26], Green LJ summarised the applicable principles (I have not reproduced those principles which are reflected above in MN (Vietnam) to similar effect):  
[26] Sections 11 and 12 of the TCEA 2007 restrict the UT's jurisdiction to errors of law. It is settled that:  
[…]
(iv)  The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [27];  
(v)  Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 at para 34;  
(vi)  It is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] 1 WLR 771 at para 107.  
Grounds 1-3
9. The centrepiece of the appellant’s appeal was the challenge to the judge’s analysis of his Article 8 family life claim and the consideration of various prospective scenarios in assessing whether the refusal would bring about unjustifiably harsh consequences. Having comprehensively distilled the overall evidential picture, the judge turned to these scenarios, and reached overall conclusions on the Article 8 claim between [71] and [77]:
The appellant returns to Pakistan with his family: Both the appellant and Ms Noor are highly educated Pakistani nationals. They both have degrees. Whilst I accept that the appellant will suffer some hardship on return to Pakistan, having not lived there since 2010, he continues to have strong linguistic, cultural and family ties. Ms Noor also has strong linguistic, cultural and family ties. She has only been living in the United Kingdom since 2021. She has spent the majority of her life in Pakistan. She can assist her husband in reintegrating into Pakistan. I acknowledge that she and her children have leave until January 2028. However, as Pakistani nationals there is nothing preventing the family from relocating to Pakistan, even without a family support network, they are more than capable of re-establishing a family life in Pakistan (as they have done in the United Kingdom). There are no unjustifiably harsh consequences facing this family unit if it returned to Pakistan.
The appellant returns to Pakistan on his own: If the appellant returns to Pakistan on his own, he will not suffer unjustifiably harsh consequences. I find that he continues to have linguistic, cultural and family ties to Pakistan. There is a family support network there to assist him. He is university educated in Pakistan and can utilise any skills, experience and qualifications he has accrued in this country to assist him in resettling in Pakistan. Whilst there will be some hardship in not having lived in the country for 15 years, I do not find that this hardship amounts to unjustifiably harsh consequences. Family life with his wife and children can continue through modern means of communication and regular visits.
However, I acknowledge that his removal from the family unit in the United Kingdom would place undue burden on Ms Noor if she is left on her own with the children. They have no family support network in this country. She would be the sole primary carer for two children under the age of three (one of them showing autism-like symptoms). At the same time, she is expected to study for her master’s degree and work part-time hours to earn an income that will allow them to meet their expenditure needs. Her GP has already referred her for counselling as she is displaying mental health issues. In this particular scenario, the appellant’s removal to Pakistan would result in unjustifiably harsh consequences for his wife and his children. However, this scenario can easily be alleviated either by the family returning to Pakistan together (see paragraph 71 above), or the next scenario discussed below.
The appellant returns to Pakistan with his children: It is open to the appellant to return to Pakistan with his two young children, whilst his wife completes her studies (her leave will expire in January 2028). He will be the primary carer for the children in Pakistan and will have the assistance of his family to support him. Separation will be temporary and family life can continue through modern means of communication and visits by Ms Noor to see the children in Pakistan. Whilst I accept that it would not be in the children’s best ‘section 55’ interests to be separated temporarily in this way, as already noted above, the children’s best interests are not the determinative factor in an Article 8 assessment. Although I accept that it will result in the family facing difficulties and challenges, the separation is temporary and I do not find that such circumstances amount to ‘unjustifiably harsh consequences’.
Concluding remarks: There is a strong public interest in the appellant’s removal. He is someone who has a very poor immigration history and has shown a complete disregard for the laws of this country. Knowing that he was here unlawfully, Ms Noor entered into a relationship with him. During her closing submissions, Ms Lagan argued that if Ms Noor chooses to form a family life with someone who is here unlawfully, the United Kingdom is not obliged or duty-bound to heed to their desire to establish a family life in this country. This is correct. Her right to have her husband (appellant) remain with her in the United Kingdom whilst she completes her studies does not outweigh the public interest in the removal of that husband (appellant) given his unlawful status, poor immigration history and complete disregard for our laws.
Looking at all of the facts in the round, I find that the only circumstances in which it might theoretically be argued that his removal would result in unjustifiably harsh consequences for a member of his family, is in the situation where he is returned to Pakistan on his own, leaving his wife to work, study and look after the two children without any other support. However, I make very clear that the unjustifiably harsh consequences test is not met because this theoretical scenario can easily and reasonably be avoided, either by the family returning to Pakistan together, or by the appellant taking the children with him, whilst Ms Noor completes her studies. For these reasons the unjustifiably harsh consequences test is not met.
Looking at everything in the round, I conclude that the appellant’s removal from the United Kingdom will be proportionate in all the circumstances and my finding that the public interest in removal outweighs the facts which the appellant relies on.
10. Permission to appeal was primarily granted on the strength of ground 1 in that it was found to be at least arguable that the appeal ought to have been allowed once a scenario was identified which would bring about unjustifiably harsh consequences. Mr Martin did not advance the appeal on this basis but instead argued that the judge had not directed their attention to the overall evidential picture which rendered the alternative scenarios unrealistic in the circumstances. The judge was said to have lost sight of the reality that the appellant’s partner was on a route to settlement in the UK and was hardly likely to choose to return to Pakistan with the family unit or remain behind in the UK alone. It was further argued that the judge did not remind himself of what he had said at [29] where he had summarised the various forms of leave Ms Noor had enjoyed and her current course of study which she hopes will result in a PhD. This, taken together with the additional care needs of the eldest child, meant that the scenario in which the whole family return to Pakistan was simply not realistic.
11. I am not persuaded that the judge was wrong to consider the alternative scenarios in the way he did. Article 8 claims necessarily involve looking to the future and assessing whether the refusal decision will bring about unjustifiably harsh consequences. It cannot be known with certainty what the future will bring, so a judge grappling with whether exceptional circumstances exist must consider the range of prospective scenarios disclosed on the evidence. There was nothing irrational in the judge considering the three obvious scenarios he ultimately assessed. The ultimate question is not whether any one of these scenarios might amount to disproportionate interferences with family life, but whether the refusal decision is disproportionate because the consequences are disproportionate. If there are real world scenarios in which the refusal decision does not disproportionately interfere with family life such as the appellant returning to Pakistan with the children, or the whole family unit returning together, the refusal decision simply cannot be regarded as a breach of Article 8 rights.
12. In fairness to Mr Martin, he did not press ground 1 on the basis that one scenario bringing about unjustifiably harsh consequences must result in the appeal being allowed. Instead, his argument was that the judge lost sight of the relevant facts about Ms Noor’s pathway to settlement on the strength of her committed studies over several years and her understandable reluctance to give up that pathway by returning to Pakistan. Equally, it was suggested that the judge had not returned to his observations about the particular care needs of the eldest child before concluding that he could realistically live in Pakistan. Mr Martin couched these submissions in the language of the judge failing to “remind” himself of his earlier findings when reaching necessary conclusions. I found this to be instructive because it functioned as recognition that these aspects of the appellant’s factual case were fully considered by the judge in the decision but were not repeated in the final analysis. One only needs to look to the judge’s careful and comprehensive analysis of these points at [29], [36]-[37], [40], [55]-[56], [62]-[64] and [69]-[70] to see that it would have added nothing of substance to repeat these points in the final concluding paragraphs. At [75], copied above, the judge squarely considered the broad point that Ms Noor would be disinclined to give up her leave to remain in the UK as a student. It was found that this factor did not carry any significant weight in the balancing exercise given the choice she had made to enter into a relationship with the appellant who was in the UK unlawfully. Read fairly, the judge was plainly not persuaded that the hardship she may suffer by having to decide whether to return to Pakistan with the appellant and her children would come anywhere near unjustifiably harsh consequences. The appellant may well disagree with that finding, but it falls a considerable distance short of an error of law. The judge’s analysis of the proportionality of the refusal decision was firmly grounded in the real world.
13. As acknowledged in the grant of permission, and reflected in the way in which Mr Martin argued the appeal, grounds 2 and 3 are inseparable from the analysis above in relation to ground 1. Ground 2 is fully embraced by ground 1. Ground 3 involved the contention that the judge had not fully assessed the best interests of the children of the family. There is simply no substance to this argument. In the paragraphs I have referred to above, the judge comprehensively considered this primary, but not paramount, factor. The best interests of the children were fully assessed. It was even recognised that separating the children from their mother to live with the appellant in Pakistan would be against their best interests but that the public interest outweighed this primary factor in the appellant’s favour. It cannot be said that the judge did not lawfully assess their best interests as children.
Ground 8
14. The final ground which attracted permission was founded on the suggested inconsistency in the judge’s reasons between [39] and [40] where he made the following observations about the family finances:
It is difficult for me to make a proper assessment as to what care role the appellant provides to Ms Noor and their elder child. I do not find that I have been provided with an accurate or reliable picture of the financial resources this family is able to rely upon to meet all of their maintenance and accommodation needs. In turn, I find that I have not been given a reliable picture of the division of labour. Despite this difficulty, I am able to make the following findings. I accept that the appellant’s wife has been diagnosed with alopecia and that there is some medical evidence to support her assertion that it has impacted upon her mental health (alongside the uncertainty of the appellant’s immigration status). However, the appellant’s wife is said to be both studying and working. As of the date of hearing, I find that it is difficult to make the case that her mental health is having a materially negative impact on her ability to function, so much so, that she heavily relies upon her husband. She would not be able to juggle so many roles (student, worker, mother) if it were having such an impact. In any event, on her own evidence, she has sought medical assistance to help her cope with her mental health issues and her GP has referred her for counselling. Such assistance would still be available to her, even if the appellant were returned to Pakistan.
In respect of their elder child, there is enough evidence before me to be persuaded that although he is not yet three years old, he is behind developmentally and that referral has been made for further investigation. Therefore, I am prepared to accept that he does require greater parental care and attention than a child of his age. I am further prepared to accept that ‘both’ parents provide that additional care (not just the father).
15. I am unable to discern any tension in the above paragraphs. The judge was simply pointing to gaps in the evidence before arriving at factual conclusions founded on that imperfect evidential picture. There is nothing unlawful in this part of the judge’s analysis.
Conclusion
16. The decision did not involve errors of law. In many ways, this comprehensive and nuanced decision is a model of its kind.
Notice of Decision
The decision did not involve material errors of law. I dismiss the appeal.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 September 2026