In a significant judgment, the Court of Appeal criticised the First-tier Tribunal (FtT) for allowing an appeal on family and private life grounds, despite the appellant’s prolonged unlawful residence in the United Kingdom. The Court held that the FtT has failed to properly consider the weight that should be given to immigration status when assessing Article 8 claims.
Mr Arshad, a Pakistani national, arrived in the UK in June 2008 on a family visit visa and overstayed his welcome. In 2011, he applied for leave to remain on human rights grounds, which was refused. In 2020, he submitted another application based on his private and family life in the UK, relying on his close relationship with his sister and her children. The application was again refused, with the Secretary of State noting that the claimed family and private life had been formed and developed while Mr Arshad was an overstayer. The application was also refused on private life and exceptional circumstances grounds.
Mr Arshad appealed, and in 2022, the FtT allowed the appeal.
However, the Secretary of State appealed to the Upper Tribunal (UT), arguing that the FtT had afforded disproportionate weight to relationships established during a period of unlawful residence. The UT found an error of law in the FtT’s approach and set aside its decision, dismissing the appeal.
The judgment
Mr Arshad then appealed to the Court of Appeal, which upheld the UT’s decision and offered strong criticism of the FtT’s reasoning. At paragraph 122 of the judgment, the Court stated:
“[…] 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 the FtT had fundamentally erred in law by failing to properly assess the significance of unlawful residence in its Article 8 balancing exercise. Accordingly, the appeal was dismissed, and the UT’s decision was upheld.
Conclusion
The Arshad case reinforces the principle that any private or family life established while an individual resides unlawfully in the UK must be given limited weight in the Article 8 proportionality assessment. The Court of Appeal’s decision serves as a clear reminder that tribunals must not downplay the significance of an appellant’s immigration history and must approach such cases with a full understanding of the legal framework governing unlawful residence
This judgment underscores the importance of a structured and lawful approach to Article 8 family and private life claims, particularly where the claimed relationships were developed in breach of immigration control.
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