Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-004028
First-tier Tribunal Nos: PA/02242/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ML
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Clewley, senior presenting officer
For the Respondent: Mr Walsh, counsel

Heard at Field House on 25 September 2026

Order Regarding Anonymity

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information that is likely to lead members of the public to identify her, including her name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. In this decision, the parties are referred to as they were before the First-tier Tribunal. That is, I refer to Ms ML as ‘the Appellant’ and the Secretary of State for the Home Department as ‘the Respondent’.
2. By a decision dated 13 June 2026, the First-tier Tribunal allowed the Appellant’s appeal against the Respondent’s 23 April 2024 decision to refuse her 16 October 2023 protection and human rights claim.
3. Thereafter, the Respondent applied for permission to appeal in time. By a decision dated 20 July 2026, the First-tier Tribunal granted permission to appeal. The appeal came before me for an error of law hearing on 25 September 2026.
Background
4. The Appellant is a national of China aged 54 years (date of birth 23 May 1972). She arrived in the UK in 2018 lawfully, as a visitor, but then overstayed. She claimed asylum on 16 October 2023. The Appellant’s claim was based on her fear of money lenders from whom she had borrowed a substantial sum of money that she had failed to repay and who, as a result, had subjected her to an extended period of detention, forced labour and sexual exploitation. She had fled China very shortly after escaping from them.
5. The Respondent refused the Appellant’s claim on 23 April 2024. She did not accept that the claim engaged the Refugee Convention. Further, she did not accept that the Appellant had provided a credible account or, in any event, that the Appellant would have an insufficiency of protection against any risk and could not internally relocate to avoid any risk. The claim was refused on all grounds. The Appellant duly filed her appeal to the First-tier Tribunal.
6. Shortly thereafter, in August 2024, the Appellant commenced a relationship with Mr AC, a British national. In January 2025, they started cohabiting and in November 2025, with the Respondent’s permission, they married. By the time of the Appellant’s First-tier Tribunal appeal hearing, the Respondent had consented to this relationship being considered as a ‘new matter’ in the Appellant’s appeal. It was accepted that the relationship was a genuine and subsisting one but not accepted that the Appellant’s removal would breach Article 8 ECHR.
7. On 20 February 2026, a ‘conclusive grounds’ decision was made in respect of the Appellant, concluding that she was a victim of modern slavery as claimed, having been subjected to forced labour and sexual exploitation in China. As a result, by the time of the Appellant’s First-tier Tribunal appeal, the credibility of the Appellant’s account was no longer in dispute.
8. The Appellant’s First-tier Tribunal appeal was heard on 11 May 2026. By a decision dated 13 June 2026, the Judge dismissed the appeal on protection grounds and allowed the appeal on Article 8 ECHR grounds. In respect of protection, the Judge found that the Refugee Convention was engaged (particular social group, victims of modern slavery) and that the Appellant would have an insufficiency of protection on return. However, the Judge found that the money lenders would no longer have any adverse interest in the Appellant or, alternatively, that she could internally relocate to avoid any risk from them. In respect of Article 8 ECHR, the Judge found that the Appellant did not meet the requirements of Appendix FM Immigration Rules but that her removal would breach Article 8 ECHR assessed outside the Immigration Rules.
9. The Respondent raised a single ground of appeal, sub-divided into a number of arguments. Permission was granted by the First-tier Tribunal on all of the Respondent’ arguments. The Appellant filed a rule 24 response. There was no cross-appeal against the dismissal of the appeal on protection grounds.
Hearing
10. Before me, the documentation comprised a composite bundle of 533 pages and the Appellant’s rule 24 response of 4 pages.
11. Mr Walsh confirmed that he was applying for an anonymity order. Ms Clewley did not oppose the application. I acknowledge the importance of the principle of open justice. Nevertheless, I have decided to make an anonymity order. It is accepted that the Appellant is a victim of modern slavery for the purposes of sexual exploitation and, as such, she is entitled to anonymity as the victim of a sexual offence.
12. Ms Clewley adopted the Respondent’s grounds of appeal, which she had not drafted, and made further oral submissions which may be summarised as follows:
a. Ground 1(a). The Judge failed to take account of material matters, namely public interest factors weighing against the Appellant in the proportionality balancing exercise. In particular, the fact that the Appellant was in the UK unlawfully when she and her husband entered into their relationship (and they both knew this) was not taken into account.
b. Ground 1(b). The Judge materially misdirected themselves in law by applying the principle in Chikwamba v SSHD [2008] UKHL 40, [2008] 1 WLR 1420 in circumstances where a future application for entry clearance by the Appellant was not bound to succeed, because the Appellant would not meet the English language or suitability requirements of the Immigration Rules.
c. Ground 1(c). The Judge made a material mistake of fact resulting in unfairness in finding that the Appellant would meet the English language requirements of the Immigration Rules, when in fact she would not (as recognised by the Judge elsewhere in the decision).
13. Mr Walsh adopted his helpful rule 24 response and made further oral submissions which may be summarised as follows:
a. Ground 1(a). The Judge directed themselves correctly as to the law, applied the law correctly and reached a rational conclusion. The Respondent was seeking to re-argue the merits of the appeal – that she disagreed with the outcome was neither here nor there.
b. Ground 1(b). Mr Walsh accepted that a future application for entry clearance was not bound to succeed. However, the principle in Chikwamba was only one of multiple factors that the Judge found to weigh in the Appellant’s favour. Reading the decision as a whole, the conclusion that removal would be disproportionate was a sustainable one.
c. Ground 1(c). Mr Walsh accepted that the Judge had made the error of law alleged. However, it was not material to the outcome. Again, reading the decision as a whole, the conclusion that removal would be disproportionate was a sustainable one.
14. Ms Clewley made further submissions in reply, which may be summarised as follows: the error as to meeting the English language requirements was clearly material, because it led to the erroneous application of the principle in Chikwamba which the Judge had treated as determinative of the proportionality balancing exercise.
15. In terms of disposal, Mr Walsh submitted that, if I were to find a material error of law, then the Article 8 ECHR element of the decision should be set aside in its entirety and remitted to the First-tier Tribunal to be re-heard afresh. Ms Clewley was neutral on the issue of disposal.
16. At the conclusion of the hearing, I reserved my decision.
Decision and reasons
17. First, I shall consider Grounds 2 and 3 together because I consider that they involve overlapping considerations.
18. At §91, in the context of their application of the Chikwamba principle, the Judge found that “there is no issue raised about the meeting the English Language requirements”. It is not disputed that the Appellant has never met the English language requirements, and therefore that this finding was incorrect as a matter of fact (indeed, the Judge themselves found that the English language requirements were not met at §§63 and 83). Mr Walsh accepted that this was an error of law and that Ground 3 would therefore turn on my assessment of whether the error was material.
19. The Judge directed themselves correctly as to the Chikwamba principle at §§86-88. Their application of the principle to the facts of the Appellant’s case was as follows:
“91. The potential outcome of an application from outside the United Kingdom is not a matter I should consider but I have no reason to doubt that the requirements of the Immigration Rules would be satisfied with a fresh application made from China because it is accepted that the appellant and her partner are in a genuine and subsisting relationship, the partner is working and earning in excess of the maintenance requirements, there is adequate accommodation and there is no issue raised about the appellant meeting the English Language requirements. It could scarcely be clearer that maintaining the refusal decision in these circumstances would be manifestly disproportionate because it could only be justified on the grounds that a fresh application for entry clearance should be mandated.
92. I find for the appellant to return to China and make an application would serve no useful purpose and will cause considerable disruption to the appellant’s family life, particularly when there is no specific time frame given by the respondent for an entry clearance application from China. Although I believe the expected time period is between 3 to 6 months, which, if that is so, I find is still a substantial period of unnecessary disruption to a person’s family life.”
20. It is readily apparent from these paragraphs that the Judge gave material weight in the proportionality balancing exercise to the Appellant meeting the Chikwamba principle, i.e. to an application for entry clearance from China being bound to succeed. But, as Mr Walsh accepted, such an application was not bound to succeed, because the Appellant did not meet the English language requirements (nor, indeed, the suitability requirements).
21. In Alam v SSHD [2023] EWCA Civ 30, [2023] 4 WLR 17 per Elisabeth Laing LJ at §§110 and 113, it was held that the decision in Chikwamba is potentially relevant on an appeal only when an application for leave to remain is refused on the narrow procedural ground that the applicant must leave the UK in order to make an application for entry clearance. That is, where all of the other substantive requirements for entry clearance are met.
22. Therefore, the Respondent’s Ground 2 is also made out. The Judge misdirected themselves in law by applying the Chikwamba principle in the Appellant’s case in circumstances where all of the other substantive requirements for entry clearance were not met.
23. On the question of the materiality of the errors in Grounds 2 and 3, I consider that they were material. I acknowledge Mr Walsh’s submission that the principle in Chikwamba was only one of multiple factors that the Judge found to weigh in the Appellant’s favour – it is apparent to me that there are compelling, weighty factors on her side of the scales. However, as I have said, the Judge clearly gave material weight in the proportionality balancing exercise to the Appellant meeting the Chikwamba principle, which she did not. That error was made in part due to the error as to the Appellant meeting the English language requirements. Therefore, it cannot be said that any reasonable Tribunal would inevitably have come to the same conclusion on proportionality if either or both these errors had not been made (see SSHD v AJ (Angola) [2014] EWCA Civ 1636 per Sales LJ, as he then was, at §49).
24. The Article 8 ECHR element of decision of the First-tier Tribunal contains material errors of law and is set aside in its entirety (§§59-93).
25. On disposal, I concur with Mr Walsh. Having considered the relevant Practice Direction and Practice Statement and having regard to the guidance in AEB v SSHD [2022] EWCA Civ 1512, [2023] 4 WLR 12, I am satisfied that the nature and extent of the fact-finding required are such that the appeal should be remitted to the First-tier Tribunal for a fresh hearing on the Appellant’s Article 8 ECHR ground of appeal only.
26. In these circumstances, it is not necessary for me to give detailed consideration to Ground 1. However, for completeness, I note that I preferred Mr Walsh’s submissions on this ground. I accept that it constitutes a mere disagreement with the Judge’s reasoning and conclusion on Article 8 ECHR and does not disclose any material error of law.
Notice of Decision
The Article 8 ECHR element of the decision of the First-tier Tribunal contains material errors of law. §§59-93 of the decision are set aside in their entirety.
The appeal is remitted to the First-tier Tribunal for the Appellant’s Article 8 ECHR ground of appeal to be re-heard before a differently constituted Tribunal.

B. Hoshi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 October 2026