United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000217
	First-tier Tribunal No: HU/54888/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 3 ^rd of April 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE LAY

 

Between

 

MOHAMMED RIGWAN AHMED

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr N Ahmed, instructed by ASM Immigration Services

For the Respondent: Ms C Newton, Senior Home Office Presenting Officer

 

Hybrid hearing at Field House on 31 March 2025

DECISION AND REASONS

1.              The Appellant is a Bangladesh national whom the Secretary of State accepts has been in the UK since at least 2003. On 12 August 2021 he applied for leave to remain in the UK on the basis of long residence. He claimed to have arrived in 1995, albeit his first attempt to regularise his status came in October 2003, and thus sought to succeed under the "20-year rule", formerly paragraph 276ADE(vi) of the immigration rules, now paragraph 5.1 of Appendix Private Life.

2.              The Respondent refused the application on 19 July 2022, concluding that he had not evidenced 20 years residence as of the date of the application in 2021. The Appellant exercised his right of appeal.

3.              The First-Tier Tribunal dismissed his appeal in a determination dated 4 November 2024, the hearing having been conducted the same day. FTJ Nixon found that the Appellant had been in the UK since 2003 but, as of the date of his application in 2021, it fell short of 20 years and thus he did not meet the immigration rules. The FTJ then conducted a proportionality assessment and concluded - at paragraph 18 - that even though the Appellant met the 20-year requirement as of the date of the FT hearing in November 2024, there was no breach of Article 8 ECHR in dismissing the appeal.

4.              The Appellant sought permission to appeal to the Upper Tribunal. Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Clarke on 16 January 2025 on two of the Appellant's grounds: (1) that the FTJ had failed to take into account evidence (postmarked envelopes) which indicated the Appellant had in fact been in the UK in 2000; (2) that, in any event, the FTJ, having acknowledged that the Appellant had been in the UK at least 20 years, as of the date of the hearing, appeared to not accord appropriate weight to that reality when conducting his proportionality assessment, having regard to established caselaw.

Preliminary issues and concessions

5.              At the outset of the hearing, I was informed that the Respondent had issued a Rule 24 reply dated 27 January 2025. This was not on file with the Upper Tribunal and I asked that it be emailed to me. The Rule 24 states that: "The respondent does not oppose the appellant's application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing to consider whether the appellant can show that he has been in the UK for 20 years or more/there would be very significant obstacles to his integration into Bangladesh. Also, whether there are exceptional circumstances under Article 8."

6.              Ms Newton clarified that she had herself sent supplementary correspondence to the Tribunal dated 27 March 2025, which was not on CE-File, but which was also provided to me during the hearing. That letter went further than the Rule 24 and stated as follows: "It is respectfully submitted, without pre-empting any error of law decision the Tribunal is due to make, that the Respondent invites the Appellant to withdraw the appeal with a view that the Respondent accepts the error and that leave applied for should be granted."

7.              I sought further clarification from Ms Newton as to the Respondent's position today which she confirmed was that the Secretary of State (i) accepted that the FTT had erred in its consideration of the Appellant's ability to meet the relevant immigration rule, as of the date of the hearing, and (ii) that - in the event of the UT re-making the decision - she did not resist the contention that he would inevitably succeed under Article 8 ECHR.

8.              Having sought the views of both parties, it was agreed that, rather than the procedural route of the Appellant withdrawing his appeal or indeed the Respondent withdrawing her case by way of Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the most expedient and effective resolution was that I set aside the impugned FTT determination and then re-make the appeal in the Upper Tribunal, having regard to the Respondent's position.

9.              Mr Ahmed did not oppose this route and was content for Ground I (on the Appellant having been in the UK since at least 2000) to fall away as otiose. Ms Newton, having conceded that there was an error of law as to the 20-year rule (Ground III in the original application for permission; Issue 2 before me today), agreed and invited me to proceed to re-making in the Appellant's favour.

Conclusion on the error of law

10.          I therefore find that the determination of FTJ Nixon dated 4 November 2024 contained a material error of law. As acknowledged by the Respondent, the FTT gave no or no rational consideration at paragraph 18 of the determination to the Appellant's ability to meet the immigration rule as of the date of the FT hearing. To the extent that he did, he noted that "all of this time has been [unlawful]" but paragraph 5.1(a) of Appendix Private Life simply states that "the applicant must have been continuously resident in the UK for more than 20 years" and makes no distinction between lawful and unlawful periods.

Re-making of the appeal

11.          I proceed to remaking. As of the date of the hearing before me, 31 March 2025, the Appellant meets the requirements of paragraph 5.1(a) of Appendix Private Life. He therefore meets the policy objective of that rule, set by the Secretary of State and reflecting her own evaluation of where the public interest lies in Article 8 ECHR claims of this kind, such that he is very likely to be able to show that refusal of the human rights claim will have unjustifiably harsh consequences: Lal v The Secretary of State for the Home Department [2019] EWCA Civ 1925; TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109.

12.          For the avoidance of doubt, I have had regard to s.117B of the Nationality Immigration and Asylum Act 2002. Subsections (2), (3), (4) & (5) are adverse to the Appellant and must be taken into account.

13.          In this particular appeal the Secretary of State now concedes that the Appellant should succeed in the proportionality assessment on the basis that he meets the rule and there is nothing else, including in s.117B, of sufficient countervailing force.

14.          I allow the Appellant's appeal under Article 8 ECHR.

Notice of Decision

The decision of the First-tier Tribunal, which dismissed the appeal, contained an error of law and is set aside. The Appellant's appeal has been re-made by the Upper Tribunal and allowed under Article 8 ECHR.

 

Taimour Lay

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

31 March 2025