Upper Tribunal Allows Immigration Appeal Due to Legal Error

OUTCOME: Allowed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002486 First-tier Tribunal Nos: HU/64391/2023 LH/00999/2025 THE IMMIGRATION ACTS Decision & Reasons Issued: On 2nd of October 2025 Before DEPUTY UPPER TRIBUNAL JUDGE [APPELLANT]) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted] Heard at Field House on 15th September 2025

DECISION AND

REASONS 1. The Appellant appeals against the decision of First-tier Tribunal Roblin promulgated on 21st April 2025 dismissing his appeal under the Immigration Rules and Article 8 ECHR. The Appellant applied for permission to appeal, which was granted by Upper Tribunal Judge Blundell in the following terms: “Having considered the documents provided by the appellant and the respondent’s Review of 19 February 2025, I consider the grounds of appeal to be arguable. I can find nothing in the respondent’s Review to suggest that the principal issue between the parties was whether the relationship between the appellant and his wife was genuine and subsisting. The judge’s conclusion that the appellant and his wife had not been cohabiting – [32] – was well reasoned but was arguably not determinative of the rather separate question of whether they nevertheless enjoy a family life. © CROWN COPYRIGHT 2025

Appeal Number: UI-2025-002486 First-tier Tribunal Numbers: HU/64391/2023 LH/00999/2025 Paragraphs [39] and [44] arguably contain no satisfactorily reasoned resolution of that issue. It is also arguable that the judge failed to take relevant matters into account in his assessment of the best interests of the child, and in his assessment of proportionality more widely”.

2. The Secretary of State did not provide a Rule 24 response but indicated that the appeal was resisted. I canvassed with Mr [NAME] that, if Ground 1 was established as being correct and there was an error of law, whether that would be determinative to the outcome of this appeal and requiring the decision to be set aside in its entirety. Mr [NAME] indicated that this was the case given the far- reaching nature of Ground 1 as if proven it would infect the remainder of the decision and the two further issues of the best interests of the child and proportionality, which were contingent upon the building block of the relationship being properly analysed. Findings 3. At the close of the hearing, I indicated that I found there was an error of law in respect of Ground 1 at least, but that my reasons would follow, which I shall now give. In respect of Ground 1 the ground is pleaded at some length by [NAME]; however, suffice it to say that the issue raised in the refusal letter which gave rise to this appeal (dated 23rd November 2023), in respect of the Respondent’s assessment of family life, only stated as follows: “You fail to meet the following eligibility requirements under the partner route of Appendix FM. E-LTRPT.1.8. – You have not provided specified evidence as required by paragraph 26 of Appendix FM-SE to the Immigration Rules that you and your partner are in a valid marriage or have entered into a valid civil partnership”.

4. Prior to the hearing there were several Respondent’s reviews, the most important and recent of which was dated 19th February 2025. This indicated that the Appellant and his “claimed wife” were not living together during the time that the birth of the child was registered, and that the Appellant submitted an address in Manchester whereas his wife was residing in London. It concluded that, due to those points, “the R does not accept that the A and his wife are living together”. As far as I can see, this was the first time the Respondent had raised a potential “question mark” over the relationship by using the words “claimed wife”, other than it not being valid due to the type of marriage they had undergone. This phrase is also unhappily opaque as the phrase could be interpreted as non- acceptance of the relationship due to it not being genuine, or more likely due to the context, because there was no civil wedding certificate, that the wife was only a “claimed” de facto wife in immigration law as opposed to a de jure one. This passage I have pointed to is also troubling as this is the first mention that the cohabitation of the Appellant and his sponsoring wife was in issue, not being raised in the refusal letter which I have cited verbatim.

5. For the sake of completeness, I record that, during the hearing before me, I canvassed with [NAME] and [NAME] whether there had been any application by the Respondent to amend the refusal letter such that the issue of the relationship and its integrity was lawfully brought into play as a live issue before the First-tier Tribunal. Neither party was able to assist me beyond 2

Appeal Number: UI-2025-002486 First-tier Tribunal Numbers: HU/64391/2023 LH/00999/2025 pointing to the materials and the papers before me which simply show that the Respondent had touched upon the issue of cohabitation in her review of 19 th February 2025 but other than that, there was no issue taken with the genuineness and subsisting nature of the relationship prior to the date of hearing. I also note, having ruled on this in a past decision, that since then, the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 have been amended so that Rule 24(2) which previously permitted the Respondent to amend her refusal letter was deleted on 6th April 2022 (by virtue of the Tribunal Procedure (Amendment) Rules 2022) with the resultant effect that the Secretary of State is no longer permitted to change or add to the grounds or reasons relied upon in the notice of decision. Thus, for my part, I cannot understand how the issue of cohabitation was lawfully called into question. This is an unprecedented area of authority in appeals before the Immigration Tribunals; however, as this matter was not pleaded in the Grounds of Appeal by [NAME], nor was it a matter upon which the parties were equipped nor ready to grapple, I indicated I would make these observations but make no further comment as to whether or not the Respondent’s review or the other materials in the bundle before me could legitimately have amended the refusal letter and altered the issues requiring resolution on appeal.

6. Turning to the decision itself having set out the background to the issues in the appeal, regardless of the way in which cohabitation was raised; it is surprising that the decision at paragraph 3 records the positions of the parties as follows: “It is the Appellant’s position that he has a partner, who is from Bangladesh, but has indefinite leave to remain in the UK and a daughter born on [DATE] and he has a private and family life in the UK. It is the position of the Respondent that the Appellant and his partner are not in a genuine and subsisting relationship”. (Emphasis supplied)

7. According to the Appellant, and as accepted by Mr [APPELLANT], this is the first mention of the Appellant and his partner not being in a genuine and subsisting relationship.

8. The decision is all the more confusing because in the very next paragraph it states that “The only issue for determination was Article 8 and whether the Appellant had established a private and family life with his partner and his daughter as suggested in the Respondent’s revised review dated 19 February 2025”. This is again affirmed at paragraph 8(a) of the decision where the judge states as follows under the heading “Issues for the Hearing”: “Article 8, whether the Appellant had established a private and family life with his partner and daughter”.

9. However, under the judge’s findings of fact (which begin at paragraph 14), at paragraph 18 onwards, a detailed exploration of the times, dates and evidence of cohabitation of the Appellant and his partner is exhaustively analysed all the way through to paragraph 30. The upshot of these paragraphs and the comprehensive assessment is that the Appellant and his partner were not living together.

10. After this analysis and conclusion, under the heading “Application of the Law to the Findings” and a further heading headed “Genuine and Subsisting Relationship” appear paragraphs 31 and 32 which then turn to a further issue, not outlined anywhere thus far except for in paragraph 3 of the decision, namely, 3

Appeal Number: UI-2025-002486 First-tier Tribunal Numbers: HU/64391/2023 LH/00999/2025 whether the Appellant and his partner are in a genuine and subsisting relationship. The judge notes [NAME]. of Appendix FM and its definition of partners includes an unmarried partner who can be in a relationship with someone akin to marriage for at least two years. The judge notes the Appellant claims to be in a relationship with his partner for about two years, and that the Appellant and his partner have not been cohabiting as they were living at different addresses. The judge then states that the Appellant had ample opportunity of providing further evidence which he failed to do and that the materials do not confirm that the Appellant and his partner have been living together for the requisite period. Finally, the judge concludes “I therefore do not find on the balance of probabilities that the Appellant and his partner have been cohabiting”. That is the end of the judge’s assessment of the Appellant’s relationship with his partner.

11. The Appellant’s point, as mentioned above, put succinctly is that the judge did not resolve whether the Appellant could meet [NAME].(iv) in respect of the Appellant and his partner being “unmarried partners” which did not require them to have lived together for those two years. This, I find, is a glaring omission in the assessment of their partnership and in terms of whether or not they could meet Appendix FM.

12. I further find that the judge has misconstrued the fact that partnerships under [NAME]. do not require partners to be cohabiting or living together for two years, but merely to be in a relationship for two years. Such a requirement for two years’ cohabitation did previously exist under [NAME]., however the two-year cohabitation requirement for unmarried partners was removed on 31 January 2024, following a Statement of Changes to the Immigration Rules (HC 246). The new definition of an unmarried partner now merely requires that the couple has been in a relationship similar to a marriage or civil partnership for at least two years, without the stipulation of having "lived together" for that period.

13. A further, and now perhaps academic, point raised on appeal is that, even if the couple were not partners, the Appellant and his [NAME]/unmarried partner, were nonetheless able to meet the second headnote in the Upper Tribunal matter of [NAME] (Part 5A: “partner”) [2020] UKUT 00087 ([NAME]) which reads as follows: “[NAME] who satisfies the definition in GEN 1.2 should, as a general matter, be regarded as being a partner for the purposes of Part 5A. Where, however, [NAME] does not fall within that definition, the judge will need to undertake a broad evaluative assessment of the relationship, bearing in mind that a ‘partner’ is [NAME] to whom one has a genuine emotional attachment, of the same basic kind as one sees between spouses and civil partners, albeit not necessarily characterised by present cohabitation ...”.

14. Therefore, the Appellant argues, and I find, that under [NAME]., even if the judge found there to be no cohabitation or valid civil partnership, he should have gone on to assess whether there was a partnership outside the Rules in terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 which would have a bearing upon the remainder of a family life assessment.

15.

I therefore find that the judge has erred in omitting to complete his consideration of [NAME]., as the issue of cohabitation was not determinative of the eligibility relationship requirement as there was no longer any requirement 4

Appeal Number: UI-2025-002486 First-tier Tribunal Numbers: HU/64391/2023 LH/00999/2025 for cohabiting partners to reside together for the two year period; and, as the judge failed to resolve whether the Appellant and his partner were in a genuine and subsisting relationship, in any event despite noting this issue at paragraph 3 and subheading paragraphs 31 to 32 with this issue.

16. As conceded by Mr [NAME] at the outset of the hearing, Ground 1 is to such effect that it infects the entirety of the decision, as if the judge’s assessment of the relationship is incomplete then so too would be the assessment of family life with the Appellant and his partner’s child, and their relationship under Article 8 ECHR outside the Rules.

17. I therefore do not go on to assess the remaining grounds as they are academic and moot.

18. In light of the above findings, I find that the decision contains material errors of law such that it should be set aside in its entirety. Notice of Decision 19. The appeal to the Upper Tribunal is allowed.

20. The appeal is to be remitted to be heard by any judge of the First-tier Tribunal other than Judge Roblin.

21. The parties agreed that as the Appellant’s current address as stipulated in the IAUT-1 form is in Ilford. I concur with this view and direct that the appeal be remitted for an in-person (not remote) hearing at [NAME]. [NAME] Judge of the Upper Tribunal Immigration and Asylum Chamber 26 September 2025 5