Upper Tribunal Overturns Leave to Remain Decision Due to Errors

OUTCOME: Dismissed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000423 First-tier Tribunal No: HU/62809/2023 THE IMMIGRATION ACTS Decision & Reasons Issued: On 14th April 2026 Before DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL Between THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant And [RESPONDENT]) Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted]

DECISION AND

REASONS 1. The respondent appeals with permission against the decision of a First-tier Tribunal Judge (“the judge”) dated 13 November 2025 (“the decision”) in which the judge allowed the appellant’s appeal against the respondent’s decision to refuse his human rights claim. For ease I continue to refer to the parties as they were before the First- tier Tribunal, with Mr [RESPONDENT] as the Appellant and the Secretary of State as the Respondent. © CROWN COPYRIGHT 2026

Appeal Number: UI-2026-000423 2. The Appellant is a national of Ghana, who entered the United Kingdom with leave to enter as a visitor on 29 April 2022. During this stay as a visitor he [RESPONDENT] an application under the [NAME], which was refused by the respondent. The Appellant then sought administrative review of the refusal. Whilst awaiting that decision, he applied to marry his partner and was given permission to marry. On 25 August 2023, he applied for leave to remain as a partner under Appendix FM. On 20 October 2023, this was refused. The appeal came before the Judge on the principal controversial issue of whether the Appellant could meet the immigration status requirement. The Judge allowed the appeal on the basis of the evidence before him.

3. The Secretary of state appeals on two grounds, as follows (a) The judge failed to consider the Immigration Status Requirement, specifically E LTRP.2.1, which bars applicants present in the UK as visitors from meeting the Rules. The Judges findings relied on the existence of section 3C leave but failed to consider the respondent’s review demonstrating that the appellant could not meet the Rules regardless of 3C leave, due to his initial entry as a visitor. (b) The Judge erred in finding that the administrative review was pending; the respondent asserts the administrative review had been completed and served in August 2025. Findings and reasons 4. At the hearing, Ms [NAME] relied on the grounds of appeal and submitted that whilst she accepted the respondent immigration history was not accurate, the Judges findings on Section 3C leave were flawed as the appellant was a visitor at all material times, thus he could not meet the Immigration rules, specifically E-LTRP 2.1. Mr [APPELLANT], conceded that the Judge materially erred in finding the immigration status requirements had been met given the appellants Section 3C leave was predicated on his leave as a visitor. [APPELLANT] submitted in the absence of any consideration of Article 8 outside the rules, the appeal had to be re-heard at the First-tier Tribunal de novo.

5. I indicated at the hearing that I agreed the decision was infected by material errors of law and that it needed to be set aside with no preserved findings. I have considered whether the rehearing of the appeal should take place in the First-tier Tribunal or Upper Tribunal. I have had regard to paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers, and the guidance in [NAME] v Secretary of State for the Home Department [2022] EWCA Civ 1512 and [NAME] (Remaking or Remittal) v Secretary of State for the Home Department [2023] UKUT 46 (IAC), and have concluded that fairness requires the appeal to be reheard in the First- tier Tribunal given the extent of remaking required. I therefore remit the appeal to the First-tier Tribunal pursuant to section 12(2)(b) of the 2007 Act. Notice of Decision 2

Appeal Number: UI-2026-000423 The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision. I set aside the decision of the First-tier Tribunal. The appeal is remitted to the First-tier Tribunal to be heard by a judge other than the original judge. S K KUDHAIL Judge of the Upper Tribunal Immigration and Asylum Chamber 02 April 2026 3