Upper Tribunal Upholds Human Rights Appeal Based on Insurmountable Obstacles

OUTCOME: Allowed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001869 First-tier Tribunal No: HU/60181/2022 THE IMMIGRATION ACTS Decision & Reasons Issued: 30th October 2025 Before UPPER TRIBUNAL JUDGE RUDDICK Between 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 Secretary of State for the Home Department appeals with permission against the decision of the First-tier Tribunal (“the [NAME]”) of 13 March 2025, which allowed Mr [RESPONDENT]’s human rights appeal. For the sake of consistency, I will refer to the parties throughout as they were before the [NAME], such that all references to “the appellant” are to Mr [RESPONDENT] and to “the respondent” are to the Secretary of State.

2. The appellant is a citizen of Albania who is in the UK without lawful status, having entered the country clandestinely in 2017. He is [NAME] to a British citizen, and it is accepted that their marriage is genuine and subsisting. It is also accepted that he meets the suitability, financial and English language requirements for a grant of leave to remain as spouse. His appeal before the [NAME] turned on whether he met the immigration © CROWN COPYRIGHT 2025

Appeal Number: UI-2025-001869 [HU/60181/2022] status requirement of rules, specifically Para. E-LTRP.2.2., which provides that a person who is in the UK on immigration bail or in breach of the [NAME] is eligible for a grant of permission to stay if Para. EX.1 is met. Para. EX is entitled “Exceptions to certain eligibility requirements for leave to remain as a partner or parent.” The appellant says that he meets Para EX.1. The respondent found that he did not. The [NAME] decided this issue in favour of the appellant and allowed the appeal.

3. The appellant also argued before the [NAME] that even if he did not meet the requirements of the rules, his appeal should be allowed because his removal from the UK would be disproportionate under article 8 of the European Convention on Human Rights. As this was not the basis on which the [NAME] allowed the appeal, that issue does not arise before me. The challenged decision 4. In the challenged decision, the [NAME] set out the background to the appeal, who was present at the hearing, how the hearing was conducted, and that the respondent had confirmed at the outset of the hearing that the genuineness of the relationship between the appellant and his wife was accepted.

5. A [25]-[37], the [NAME] summarised the evidence given at the hearing in some detail, describing both the questions that were put to the appellant and his wife, and the answers that they gave. At [38]-[50], it summarised the parties’ submissions, again in some detail. There is no need to rehearse all of what the [NAME] recorded in these sections of its decision. I will refer to any relevant matters in my discussion below.

6. The [NAME]’s findings began at [50] with the Judge confirming that all of the evidence and submissions had been taken into account and that the burden of proof was on the appellant. The Judge confirmed that he was guided by “the views expressed by Lady [NAME] in [NAME] as to the appropriate approach when considering insurmountable obstacles with reference [to] EX.1.” Further self-direction as to the relevant law followed: “54. EX.1. provides a potential route for an applicant to succeed in satisfying the Immigration Rule provisions where otherwise not every aspect of the required eligibility criteria is met. That applies to the appellant because he does not have immigration leave in this country.

55. Although [the Home Office Presenting Officer] made reference to the wife of the appellant and her [NAME] not being required to go to Albania if the appellant fails in his appeal, EX.1. makes special provision that a continuing family life abroad should be considered. Lady [NAME] expressed that in doing so there should be ‘practical and realistic’ approach adopted in judicial consideration of such matters as to ‘insurmountable 2

Appeal Number: UI-2025-001869 [HU/60181/2022] obstacles’ which may arise for the [NAME] in a different country.” 7. The [NAME]’s factual findings followed. In summary, these were that the [NAME]’s worked for the NHS and has “very significant experience and is a valued employee.” It is in the public interest that NHS staffing levels are maintained. It would also be “most regrettable” for the wife to have to “end her service in this country”. The [NAME] then set out various reasons for finding that if she accompanied her husband to Albania while he applied for entry clearance, this would “most likely bring her employment within the NHS in this country to an end.”: [56]. At [57], the [NAME] found that it was: “utterly unrealistic to expect that he wife of the appellant could reasonably hope to find medical work in Albania, when she does not speak a word of Albanian. It would be utterly impractical, and even potentially dangerous, for someone to seek employment in the [NAME] in Albania without speaking Albanian.” The [NAME] also noted that the [NAME] had never been to Albania and had no ties to country. It would be “a totally foreign country for her.” It is “neither reasonable no realistic that she could be expected to live there with the appellant”.

8. At [58], the [NAME] concluded, “For the above reasons I find there would be insurmountable obstacles to family life and his wife being possible if both had to reside in Albania.” Even with “reasonable adjustments”, this would be “neither practical nor realistic”.

9. The [NAME] then allowed the appeal on the grounds that the appellant met all of the requirements of [NAME], and that the appeal therefore succeeded on human rights grounds. In allowing the appeal on human rights grounds because the appellant met all of the requirements of the Rules, the [NAME] was taking the approach required by the decision of the Court of Appeal in (TZ Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 at [34]. The grounds of appeal 10. The respondent appeals on two grounds. They are both set out under the general heading: “Making a material misdirection in law/Lack of adequate reasons”. 11. [NAME] reads: “It is respectfully submitted, that in allowing the appeal, [the [NAME]] errs in failing to provide adequate reasons for why it is found there to be insurmountable obstacles to the [NAME] family life continuing in Albania. Whilst accepted, that the FTTJ is entitled to consider whether the [NAME] would be able to continue her current occupation within the [NAME] in Albania [57], it is respectfully asserted, it is incumbent upon them to also consider 3

Appeal Number: UI-2025-001869 [HU/60181/2022] potential alternatives should this not be possible. It is respectfully asserted, that no consideration has been given ato [sic] whether the appellant could work and support his wife given his experience there in the [NAME], or whether the wife could be employed in an alternative profession, nor whether she could learn the language to facilitate her employment in the [NAME]. “ 12. Thus, although it begins by suggesting that the error was a failure to provide adequate reasons (as in the second part of the heading), the submissions that follow are that there was a failure to take into account material considerations. This is also the primary way the ground was pursued by Mr [NAME].

13. Ground Two was that it was “unclear why it is considered unreasonable to expect the appellant[‘]s wife to enjoy her family life in Albania.” Although this ground begins by referring to the reasoning being “unclear”, no specific lack of clarity in the [NAME]’s reasoning is identified. What follows instead is a re-iteration of general principles and policy considerations: “Whilst this would entail moving to a different country with different social and cultural mores and she would have to learn the language, this is simply a reverse of the process the Appellant has undertaken when he entered the UK, there has been no evidence provided to suggest that she would be unable to do so, particularly given the fact she would have the appellant to assist in her integration there. Choice of country of residence, and a wish to remain in the UK, cannot be said to be an insurmountable obstacle in itself. Whilst relocation may present some challenges, nothing has been advanced to show that there would be any significant difficulties that could not be overcome, or which would entail very serious hardship, as such the conclusion in this regard is flawed to the extent that it is unreliable. It is trite law, that there is no obligation on a state under article 8 to respect the choice of residence of a [NAME], paragraph EX1, exists as a mechanism to ensure the [NAME] are article 8 compliant, therefore, it is respectfully submitted that to find the partners preference to remain in the UK, and continue working in the [NAME] here, rather than accompany the appellant to Albania to be a difficulty that cannot be overcome, allows the SSHD to be held to ransom by any couples, who choose to flout those rules. The appellant has entered and remained illegally, formed a relationship knowing he had no expectation to be granted leave, the fact they prefer to remain here, and his wife does not wish to live in Albania, is insufficient to show any obstacle to integration, it is respectfully submitted, that to find otherwise must be a misdirection in law.” In other words, this ground is that the decision was “unclear” in that it was wrong. The hearing 4

Appeal Number: UI-2025-001869 [HU/60181/2022]

14. At the hearing, I had a 243-page bundle prepared by the respondent. Mr [APPELLANT] informed me that the appellant had made a Rule 24 response, but as I could not locate it on CE-File, he emailed it to the Tribunal and to Mr [NAME].

15. I then heard submissions from Mr [NAME]. He submitted that the [NAME] had made a material misdirection in law by failing to consider what steps could be taken to mitigate any obstacles that the [NAME] would face. This was a necessary part of the insurmountable obstacles analysis, as reflected in [NAME] v The Secretary of State for the Home Department [2019] EWCA Civ 1925 at [36]. More generally, the [NAME] had taken into account an irrelevant consideration, which was the public interest in the [NAME] continuing to work for the NHS, which was mentioned at [56]. It had also failed to take into account relevant factors, such as other ways that the [NAME] could support themselves, and the fact that the [NAME]’s daughter has an autism diagnosis and is partly supported by her mother. He accepted that the latter factor would have weighed in favour of the appellant, but he submitted that the failure to take it into account was emblematic of a wider failure to consider all relevant factors. Finally, he submitted that the [NAME]’s loss of her career simply could not constitute an insurmountable obstacle.

16. Mr [NAME] responded that the [NAME] considered that the loss of the [NAME]’s employment was more than the loss of a job. It was the loss of a long-established career as [NAME], a career in which she was both experienced and valued. The [NAME] had in addition noted that the appellant had no ties to Albania and could not speak the language. As to mitigation, the [NAME] had referred to the wife’s ties to the culture through her marriage to her husband and to the potential for “reasonable adjustments”, but found that in spite of these, the standard for insurmountable obstacles was met. The [NAME] had relied on [NAME], which established an elevated threshold, and the respondent had not pointed to any paragraph in the decision where she said the wrong threshold had been applied. Essentially, the respondent’s appeal was a perversity challenge. Not only had this not been the ground on which the appeal had been brought, but it was also a very high standard and was not met in this case. As to the ground on which the appeal had been brought – which was that relevant factors had not been taken into account – these factors had not been relied on below. Mr [NAME] did not accept that the [NAME] had taken the public interest in the [NAME] remaining in the UK into account in the insurmountable obstacles assessment, but if it had, it was procedurally unfair for the respondent to raise this complaint for the first time at the hearing.

17. In his reply, Mr [NAME] reiterated that the factors he had identified were so material that the [NAME] was required to take them into account whether or not they had been raised below. He relied again on [NAME] in this regard.

18. At the end of the hearing, I reserved my decision, which I now give with my reasons. Discussion 5

Appeal Number: UI-2025-001869 [HU/60181/2022]

19. It is not my role to decide whether the [NAME]’s loss of her career, together with the other factors mentioned by the [NAME], constitutes an insurmountable obstacle as defined at EX.2: “a very significant” difficulty that “could not be overcome or would entail very serious hardship” for her. My role is to decide whether the [NAME] made an error when it found that it did.

20. My approach to this question must be guided by principles governing the role of appellate tribunals and courts in general, and those governing appeals to this particular tribunal.

21. The approach I must take to assessing whether the [NAME] erred in law has been repeatedly been reiterated, including in [NAME] v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & [NAME] v Volpi [2022] EWCA Civ 464, at [2-4]. Particularly relevant here is what Lord Justice Popplewell said in AA (Nigeria) v Secretary of State [2020] EWCA Civ 1296 at [41]: “I appreciate that under the tribunal system, established by the Tribunals Courts and Enforcement Act 2007 Act, the Upper Tribunal is itself a specialist tribunal, with the function of ensuring that First- tier Tribunals adopt a consistent approach to the determination of questions of principle which arise under the particular statutory scheme in question by giving guidance on those questions of principle: […] However it is no part of such function to seek to restrict the range of reasonable views which may be reached by [NAME] in the value judgments applied to the many different private and family life circumstances which make almost all cases in this area different from each other. It is emphatically not part of their function to seek conformity by substituting their own views as to what the outcome should be for those of first instance judges hearing the evidence. As [NAME] observed in the latter case [[NAME] (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10] at [107]: "107. It is no doubt desirable that there should be a consistent approach to issues of this kind at tribunal level, but as we have explained there are means to achieve this within the tribunal system. As was said in [NAME] v Secretary of State for the Home Department [2007] Imm AR 57 , para 40 (per Carnwath LJ): "It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case … The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law … Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected."" 6

Appeal Number: UI-2025-001869 [HU/60181/2022]

22. Another principle that is relevant here is that a party who applies for permission to appeal to the Upper Tribunal must identify the legal error they say was made the [NAME] and should not seek to dress up disagreements of fact or weight as errors of law. As recently reiterated in [NAME] (permission to appeal requirements) [2022] UKUT 00218 ([NAME]) at [13] and again in [NAME] (Grounds of Appeal – Limited Grant of Permission) [2025] UKUT 00150 ([NAME]) at [7]: “Maintaining the distinction between errors of law and disagreements of fact is essential; it reflects the jurisdictional delimitation between the first-instance role of the [NAME] and the appellate role of the [NAME], and reflects the institutional competence of the [NAME] as the primary fact-finding tribunal.” 23. In addition, I bear in mind the principle that: “The Grounds of Appeal will not ordinarily be permitted to evolve during the course of the appeal. The Upper Tribunal is likely to take robust decisions and not permit grounds to be advanced if they have not been properly identified and pleaded or where permission has not been granted to raise them.” [NAME] at [15].

24. Finally, it is relevant that this appeal was conducted under reformed appeal procedures, in which the parties are required to identify the principle controversial issues in the appeal and ensure that they are comprehensively addressed before the [NAME]. Under these procedures, as set out in Lata ([NAME]: principal controversial issues) [2023] UKUT 00163 ([NAME]): “[7] Unless a point was one which was [NAME] obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules. “[8] A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.” 25. Applying these principles to the appeal before me, I take as my starting point the grounds of appeal on which permission was granted. The first ground is that the [NAME] erred by failing to take into account a series of relevant considerations. These were identified in the grounds as the appellant’s ability to support the family by working in construction, the [NAME]’s ability to find work in “an alternative profession”, and her ability to learn Albanian “to facilitate her employment in the medical sector”. Mr [NAME] described these as considerations that were relevant to whether the hardship that the [NAME] would face could be mitigated. I consider that the first two considerations were not relevant to the specific hardship on which the [NAME] based its decision. The hardship was not financial. It was the hardship of losing an established career as a [NAME], within the NHS. Having a different source of income from either the 7

Appeal Number: UI-2025-001869 [HU/60181/2022] husband’s or the wife’s alternative employment would do nothing to mitigate that particular hardship.

26. As to the [NAME]’s ability to obtain employment in the medical sector after learning Albanian, this issue was specifically canvassed below. The [NAME]’s decision records at [18] that the Presenting Officer asked the appellant “whether he had undertaken any research as to potential for work for her [his wife] in Albania” and he respondent by saying that “she does not speak Albanian or know the country.” At [32]-[33], the [NAME] recorded how this issue was canvassed in the cross-examination of the [NAME]: “32. The witness confirmed that she works within the NHS and had begun at least ten years ago. Her current level is band 3. She gives support and loves her work. She would not want to lose her employment. “33. […] The witness said that […] She speaks no Albanian and would not be able to work there. Had she undertaken any research as to finding possible work in Albania? The witness said that hospital procedures, methods of treatment, etc, would all be different in Albania. She has no documentary evidence to prove that, but it would be a different world there in medical terms.” The respondent’s comment on this issue in submissions was recorded at [40] as, “There had not been research about possible work in Albania and was it acceptable that enquiries or research had not been undertaken?” 27. In other words, the appellant and his wife had given a range of reasons why they believed that she would be unable to work in the medical sector in Albania. These were not limited to language but also included hospital procedures and “methods of treatment, etc”. The respondent submitted that this claim should not be accepted in the absence of corroboration. As to the consideration relied on in the grounds – that the [NAME] would be able to resume her medical career once she learned Albanian – this was not raised below, and hence [NAME] applies. In addition, it would not have been an answer to the wife’s concern that she would be unable to work in Albania because “it would be a different world there in medical terms”.

28. The [NAME], having heard from the [NAME], decided to accept her oral evidence, adding for good measure why it considered it plausible. I consider that this is precisely the kind of finding of fact with which appellate tribunals should be slow to interfere. It was made by an experienced judge of a specialist tribunal, who had had the benefit of hearing from the key witness in oral evidence.

29. For this reason, [NAME], as pleaded in the application for permission to appeal, is not made out. The considerations that the respondent said 8

Appeal Number: UI-2025-001869 [HU/60181/2022] the [NAME] should have addressed were either irrelevant to the basis on which the appeal was allowed or had been addressed by the [NAME] in her oral evidence, which the [NAME] clearly accepted.

30. Most of Mr [RESPONDENT] submissions properly addressed the respondent’s ground of appeal as it was put in the permission application: that highly relevant factors had not been taken into account. I agree with Mr [NAME] that some of his submissions verged on a perversity challenge. If the respondent had wished to appeal against the decision on the grounds that no reasonable judge could find that it would “entail very serious hardship” for the [NAME] to lose an established professional career as a [NAME] working in the [NAME] and, in addition, relocate to a country where she cannot speak the language and has no ties other than her marriage to her husband, she could have sought permission to appeal on that basis. She did not. As she did not appeal on the grounds that the decision was perverse, I do not consider that ground. For the avoidance of doubt, however, I find that although the decision can fairly be described as a generous one, that is not a permissible reason to set it aside. I also take into account that when judging what effect the loss of her career would have on the [NAME], the [NAME] had the advantage of having heard her discuss the issue on cross-examination. As recognised in the caselaw urging appellate restraint, this put the [NAME] Judge in a far better position to evaluate whether the impact on her would constitute “serious hardship”.

31. Ground Two fails to engage with the [NAME] decision under challenge. The first paragraph is a series of general submissions. These include that that relocating to a country where one does not speak the language and with different “social and cultural mores” is not unreasonable, that a wish to remain in the UK is not an insurmountable obstacle and that “nothing had been advanced” to show that the [NAME] would face insurmountable obstacles or very serious hardship. No specific aspects of the evidence before the [NAME] or of the challenged decision are identified. The second paragraph is an incoherent mixture of the trite (“there is no obligation on a state under article 8 to respect the choice of residence of a [NAME], paragraph EX1, exists as a mechanism to ensure the [NAME] are article 8 compliant”), policy considerations (the decision “allows the SSHD to be held to ransom by any couples, who choose to flout those rules”) and considerations that would be relevant if the [NAME] had allowed the appeal after conducting an article 8 balancing test (such as the appellant’s illegal entry and the fact that the relationship was formed when he had “no expectation to be granted leave”), when in accordance with (TZ Pakistan) it was not required to conduct such a balancing test and did not do so. There is nothing arguable here.

32.

For these reasons, the decision of the [NAME] did not contain material errors of law requiring it to be set aside. 9

Appeal Number: UI-2025-001869 [HU/60181/2022] Notice of Decision The decision of the First-tier Tribunal of 13 March 2025 allowing the appellant’s appeal is upheld. The respondent’s appeal against that decision is dismissed. E. Ruddick Judge of the Upper Tribunal Immigration and Asylum Chamber 17 October 2025 10