IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003929
First-tier Tribunal No:
HU/00848/2022
THE IMMIGRATION ACTS
Decision & Reasons Issued:
on 2
nd of May 2025
Before
UPPER TRIBUNAL JUDGE
KHAN
DEPUTY UPPER TRUIBUNAL JUDGE GILL
Between
MUHAMMAD IMRAN RAFIQUE
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR HOME DEPARTMENT
Respondent
Representation
: For the Appellant: Mr P Saini, of Counsel instructed by Osmans Solicitors For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
Heard at Field House on 10 March 2025
DECISION AND REASONS
Introduction 1.
The appellant appeals, with permission, the decision of First-tier Tribunal Judge Shukla ('the judge'), promulgated on 4 October 2023 following a hearing on 5 September 2023, which dismissed the appeal against the respondent's decision dated 15 July 2020 refusing his application for settlement based on long residence and under Article 8, European Convention on Human Rights ('ECHR').
2.
Permission to appeal was granted by the Upper Tribunal on 9 September 2024 and was not restricted to any grounds. It was agreed by the parties that although all grounds were arguable, the appeal focused on the issues summarised in the Upper Tribunal grant of permission to appeal: "3.The grounds aver that the appellant suffered an Historical Injustice and the Judge's decision was perverse in accepting the respondent's account of events was more likely to be true against those presented by the appellant. It is also argued in this regard that the Judge misapplied the guidance in
Ahmed (historical injustice explained)
[2023] UKUT 165 (IAC). It is further argued that the Judge's assessment of proportionality under Article 8 ECHR, and specific consideration of the appellant's relationship with a British citizen, failed to give reasoning on why there were no insurmountable obstacles to family life continuing in Pakistan. 4. The grounds are made out. It is arguable that the Judge failed to properly reason in the light of Ahmed, why the respondent's position/version of events in relation to the Historical Injustice claim was preferred over the appellant's. It is also arguable that the Judge erred by failing to conduct a proper assessment of insurmountable obstacles under the Immigration Rules - E.X.1, and the reasoning she gives on this are, in any event, arguably inadequate."
Background
3.
The appellant is a citizen of Pakistan born in 1986. The appellant has a lengthy immigration history. In brief, the appellant entered the UK on a student visa in 2010. He has made several applications for leave to remain. At the First-tier Tribunal ('FtT') the appellant argued that there was an historical injustice arising out of the respondent's actions and earlier decision making, and had that historical injustice not occurred the appellant would have been granted leave (based on a variation in May 2019 to Tier 2 (General) Migrant visa) and would now have been lawfully resident in the UK for 10 years. The appellant's Tier 2 application was refused on 10 May 2019 on the basis his sponsor had withdrawn its Certificate of Sponsorship ('CoS'). 4.
The issues before the First-tier Tribunal ('FtT') were as follows: - Issue 1: Whether the respondent erred when considering the appellant's application, more specifically whether the respondent erred when considering when the varied application was submitted? - Issue 2. Whether the appellant's removal would infringe on his private and family life. 4.
Whether or not there was an historical injustice was relevant to the determination of Issue 2.
5.
The respondent was not represented at the ('FtT') and the judge proceeded with the hearing, applying the guidelines in MNM
(Surendran guidelines for Adjudicators) (Kenya) [2000] UKIAT 00005.
The judge dismissed the appeal.
Discussion
6.
We were provided with a composite bundle filed by the appellant and a 3-page Respondent's Rule 24 Response. Having heard submissions from both parties we reserved our decision, which we now set out below. We have referred to the relevant evidence and submissions in our discussion below.
7.
The grounds of appeal are set out in four numbered paragraphs. Paragraphs 1 - 3 deal with Historical Injustice and paragraph 4 sets out the Article 8 ECHR assessment of proportionality relating to insurmountable obstacles to the appellant and his partner continuing their relationship in Pakistan. 8.
In oral submissions, Mr Saini sought to 'simplify' the written Grounds of Appeal and addressed the panel on two grounds: a.
Ground 1 - Historical Injustice b.
Ground 2 - Insurmountable Obstacles
We consider that this was a sensible approach taken by Mr Saini and therefore set out our decision under the same headings.
Ground 1 - Historical Injustice 9.
Mr Saini argued that a central issue in dispute before the FtT was why the Sponsor withdrew the CoS and whether it had been withdrawn due to the respondent's actions. Mr Saini argued that in accepting the respondent's account, rather than that of the appellant and his sponsor, the judge had provided inadequate reasons and the findings were perverse in law. 10.
Mr Saini submitted that the judge failed to consider the letter from the appellant's Sponsor dated 22 June 2019 signed by "Redbridge Accountants", which stated "...we received a call from the Home Office informing us that Mr Rafique is an overstayer and we were advised to withdraw his CoS." Mr Saini argued that this failure by the judge resulted in there being no assessment of the evidence in the round and amounted to a material omission, given that this letter was provided by the Sponsor in 2019. He further submitted that if the judge did weigh this letter in the balance, before reaching a decision on this issue, there were no reasons given for rejecting the Sponsor's letter and preferring the respondent's account. 11.
Mr Saini further argued that the judge had misapplied the case of
Ahmed (historical injustice explained). He submitted that at [22], when discussing the 'tension' in the appellant's account in his witness statement, the judge does not refer to historical injustice or the case of
Ahmed (historical injustice explained). Mr Saini submitted that there was no 'tension' in the appellant's account. He argued that the appellant before the FtT had raised that the respondent was responsible for the CoS being withdrawn by the Sponsor, and the fact that the appellant also pointed blame at his Sponsor and recruitment consultant was not relevant to the judge's decision making in respect of whether or not there was an historical injustice. Mr Saini conceded that the grounds of appeal at [1] had elevated the position regarding the principles in the case of
Ahmed (historical injustice explained), and that there had been no judicial review or appeal on this issue. He therefore did not pursue any arguments in relation to headnote 1c and [45] in
Ahmed (historical injustice explained). Instead, his arguments centred around the inadequacy of the reasons provided by the judge.
12.
The respondent argued that the judge had provided adequate reasons, and there was no perversity in her findings. Ms Ahmed submitted that the judge provided a careful analysis of the evidence at [21] setting out the 'plethora' of material which supported the respondent's account, which included material provided by the appellant. The judge refers to a letter from the appellant's representatives dated 19 September 2019, which accepts under the heading of 'Inappropriate withdrawal of CoS by the Sponsor': "...we on behalf of the applicant submit the following: ...(h) It is only when the Tier 2 Sponsor was asked by the Home Office to pay an Immigration Skills Surcharge; they chose to withdraw the CoS without informing the applicant." 13.
This letter from the appellant's solicitors dated 19 September 2019 also describes the appellant as an 'innocent victim' and states the appellant has reported the matter to Action Fraud. It does not mention any concerns regarding the respondent advising the Sponsor to withdraw the CoS during a telephone call. The appellant also provided the judge with several letters from the appellant's friends regarding the appellant being a victim of fraud perpetrated by his Sponsor, including a letter from Mr Shrestha dated 13 September 2019 which describe the appellant as 'an innocent victim at the hands of his Tier 2 sponsor'. Ms Ahmed argued that these were all matters open to the judge to take into consideration in reaching her decision. 14.
Ms Ahmed further submitted that the appellant again wrote to the Home Office on 23 January 2020, in similar terms to the account in the Solicitor's letter dated 19 September 2019. This correspondence is considered by the judge at [21]. This letter confirmed the appellant's position with regards to the withdrawal of the CoS: "I did my bio-metrics on 9
th May 2019, and on 10
th May 2019, the Home Office refused my application as my sponsor withdrew my Certificate of Sponsorship on being asked to pay the Immigration Skills Surcharge..." 15.
Ms Ahmed therefore submitted that the judge reached a balanced decision with adequate reasons and that the respondent's submissions amounted to little more than a disagreement with the judge's findings, rather than a material error of law. 16.
Ms Ahmed further submitted that the judge referred to the case of
Ahmed (historical injustice explained)
at [23] of the decision and properly applied these principles in reaching her decision. She argued that there was no error in law in the judge accepting the respondent's account of events and therefore no error of law in the judge's finding that there was a lack of a causal connection between the respondent's actions and the harm suffered by the appellant. She submitted that this was a proper application of the principles in the case of
Ahmed (historical injustice explained). 17.
We remind ourselves that we are bound to recognise the special expertise of the FtT. Judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined; it should not be assumed too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it: per Lord Hope at [25] in
Jones v First Tier Tribunal & Anor (Rev 1)
[2013] UKSC 19 (17 April 2013), [2013] 2 AC 48. 18.
We find that at [19] the judge sets out the appellant's case, acknowledging that it is supported by a letter from the appellant's sponsor and also refers to [48] of the appellant's witness statement which states "The Sponsor were told that my application will be refused because of my overstaying and even if they pay the skill surcharge." At [20] the judge sets out the respondent's position on this issue, including a reference to the respondent's Administrative Review dated 21 August 2019 which states the withdrawal of the CoS was not as a result of any actions on the part of the respondent. At [23] the judge goes on to make a finding in favour of the respondent's account of events, "...based on the evidence set out above, I accept that the appellant's Tier 2 (General) Migrant application was rejected because the sponsor withdrew the certificate of sponsorship because it did not wish to pay the immigration skills surcharge." The judge sets out detailed reasons at [21] -[23], and although the letter from the sponsor is not explicitly referenced at these paragraphs, we do not agree that this is a material omission which renders the judge's reasons inadequate or findings perverse. This is because the judge makes an earlier reference to a letter from the Sponsor at [19], considers in her analysis material submitted by the appellant which the judge finds supports the respondent's account at [21] - [22], and in reaching her conclusion at [23] states that she based her decision on the evidence "set out above". We therefore find that the reasons provided by the judge for preferring the respondent's account were adequate. We do not find that the judge's findings were perverse. Perversity is a high hurdle to overcome, the judge's findings of fact were supported by the material before her and therefore within the permissible range of decisions open to her. 19.
Furthermore, the judge did consider and properly apply the case of
Ahmed (historical injustice explained) at [23] of her decision. Having accepted the respondent's account on the issue of why the CoS was withdrawn by the Sponsor (which we have already determined does not amount to an error of law), she did not find that there was a causal connection between respondent's actions and the harm suffered by the appellant, and therefore found that there was no historical injustice. This finding was within the range of permissible findings. 20.
We therefore find no error of law in relation to Ground 1 - Historical Injustice.
Ground 2 - Insurmountable Obstacles
21.
Mr Saini submitted that judge materially erred in the assessment of proportionality under Article 8 of ECHR as the judge failed to give any reasons as to why there were no insurmountable obstacles to the appellant and his partner continuing their relationship in Pakistan. Mr Saini accepted that in the ASA, which was before the FtT, previous counsel for the appellant did not address the issue of insurmountable obstacles. However, Mr Saini submitted that the judge was required to consider the Article 8 proportionality assessment within the Immigration Rules, before considering them outside of the Immigration Rules, even in circumstances where the appellant's representative did not make such a submission because this was a central issue in the appeal. 22.
Ms Ahmed accepted that there were no reasons given by the judge as to why she found there were no insurmountable obstacles. Ms Ahmed however relied on the principles set out in
Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC), submitting that the appellant was now raising a new matter which was not raised before the FtT. Ms Ahmed argued that there was no reference in the ASA to insurmountable obstacles, nor does the appellant's witness statement or that of his partner's (both of whom also gave evidence) provide any evidence as to why there might be insurmountable obstacles to continuing their relationship in Pakistan. Ms Ahmed therefore submitted that there was no evidence upon which the judge could have reached any other conclusion. She further submitted that Mr Saini had also been unable to point to any such evidence. Neither the appellant nor his partner had stated they could not continue their relationship in Pakistan or provide any reasons in support of such a contention. 23.
We agree that the judge is required to give reasons on a central issue. However, we have not been directed to any material that was before the judge which would support the argument that there were insurmountable obstacles to the appellant and his partner continuing their relationship in Pakistan. This was not an issue that was raised by the appellant before the FtT. Therefore, in circumstances where there was no evidence to the contrary, the judge's finding at [32] that there are "no insurmountable obstacles" does not amount to an error of law. 24.
Even if we are wrong to reach this conclusion, any such error would not amount to a material error of law given the absence of evidence to support the insurmountable obstacles argument. 25.
For the reasons mentioned above, the appeal fails. We find the appellant's appeal has not identified a basis to disturb the FtT Judge's conclusions.
Notice of Decision 26.
The decision of the First-tier Tribunal did not involve the making of a material error of law and therefore stands.
A. Gill
Deputy Judge of the Upper Tribunal Immigration and Asylum Chamber
17 April 2025