Court of Appeal criticises “euphemistic and inadequate” First-tier Tribunal decision

The Court of Appeal has heavily criticised a First-tier Tribunal decision which allowed an appeal based on family life, without properly taking into account that the appellant had been in the UK unlawfully. The case is Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355.

The appellant is a citizen of Pakistan who came to the UK in June 2008 on a family visit visa and subsequently overstayed. He made an unsuccessful application for leave to remain on human rights grounds in 2011. He made a second application, based on his private and family life, on 10 February 2020. This was also refused on the grounds that the family life he relied on was with his sister and her children and had been formed at a time when he was in the UK either temporarily or unlawfully. The application was also rejected on private life and exceptional circumstances grounds.

Mr Arshad appealed the decision and this was heard remotely on 22 October 2022. The First-tier Tribunal allowed his appeal.

The Home Secretary appealed, arguing that the First-tier Tribunal had made perverse or irrational findings, and that the tribunal had materially misdirected itself by attaching significant weight to his family and private life which were formed when he had no leave to remain. The Upper Tribunal found that there was an error of law in the First-tier Tribunal’s decision and went on re-make the decision, dismissing the appeal.

Mr Arshad appealed to the Court of Appeal, which found many flaws in the First-tier Tribunal’s decision, saying that:

Paragraph 61 (see paragraph 38, above) is a euphemistic and inadequate account for this purpose. The F-tT obscured the fact that Mr Arshad has been here illegally since January 2009 by saying that his immigration history ‘is not ideal but it is not the worst by any means’. The F-tT did not use the words ‘unlawful’ or ‘illegal’ at all, except when it referred to the fact that Mr Arshad had worked even though he had no permission to. Indeed, it seems to have treated the consequences of Mr Arshad’s overstaying as mitigating factors. Nor did the F-tT face up to the fact that his relationships were either created (with the children) or developed (with his sister) when he was in the United Kingdom illegally. Still less did the F-tT factor this into its consideration of proportionality. I am also troubled by the F-tT’s references, in paragraphs 43, 49, and 64 of determination 1, to the fact that Mr Arshad had been living here for ‘over six years’ which, again, downplays the facts. I therefore accept Mr Tabori’s submission that there is no hint that the F-tT treated the fact that the relevant relationships were formed or developed during Mr Arshad’s long illegal presence in the United Kingdom as relevant to its assessment. That approach was unlawful. 

The court concluded that there was no error in the Upper Tribunal’s decision, and the appeal was dismissed.