Muhammad Arshad v Secretary of State for The Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's re-making of the First-tier Tribunal's decision allowing his article 8 appeal. Key legal principles were the article 8 proportionality assessment (including the Razgar five-step approach), the relevance of precariousness or unlawful immigration status to the weight to be given to family life formed or developed while the appellant was without leave, and the role of Part 5A (sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002) and the Immigration Rules (in particular paragraph 276ADE and GEN.3.2-3.3) in structuring the assessment.

The Court held that the First-tier Tribunal had erred in law by failing to take into account that the relevant family relationships were formed or developed while the appellant was unlawfully present and that that was a mandatory relevant consideration in the proportionality balance. The Upper Tribunal correctly identified that error and lawfully re-made the decision, concluding that the removal would not breach article 8 after weighing the children’s best interests, the parents' primary relationship with the children, the public interest in immigration control, and the effect of delay in enforcement.

Background and procedure. The appellant, a Pakistani national, entered the United Kingdom in 2008 on a short visit visa and overstayed. He was encountered and served with removal papers in 2011. He made an in-country human rights application in 2020 based on private and family life; the Secretary of State refused. The First-tier Tribunal allowed his appeal (determination 1) finding that removal would unjustifiably harm the children and breach article 8. The Secretary of State appealed to the Upper Tribunal which set aside and re-made the F-tT decision (determination 2). The appellant then appealed to the Court of Appeal.

Nature of the claim / relief sought. The appellant sought to overturn the Upper Tribunal’s re-making of the F-tT decision and to restore determination 1, arguing the UT had erred in law in its approach to proportionality and had failed to show sufficient deference to the F-tT’s factual findings about the intensity of the family ties.

Issues framed by the court. (i) Whether the F-tT had erred by failing to treat the fact that the family relationships were formed or developed during the appellant’s unlawful presence as a mandatory relevant consideration in the article 8 proportionality assessment; (ii) whether the UT was entitled to conclude that the F-tT had so erred; (iii) whether the UT then lawfully re-made the decision and correctly balanced the children’s best interests against the public interest in immigration control and the appellant’s precarious status.

Court’s reasoning. The court explained that the classification of a relationship as "family life" is only a starting point and that the nature and quality of that family life must be assessed. It emphasised the established principle, drawn from Jeunesse and applied in Agyarko and related authorities, that where family life was created or developed while a person lacked lawful status (or where presence was otherwise precarious), that fact is a mandatory relevant consideration and tends to diminish the weight of the article 8 claim unless exceptional circumstances appear. The Court found that the F-tT’s decision did not address or apply that principle: it did not properly confront the appellant’s long unlawful presence since 2009 or treat the consequent effect on the weight of the family life claim. The UT was therefore right to find an error of law. On the UT’s re-made decision the court held the UT had lawfully treated the children’s best interests as a primary consideration but was entitled to find that those interests did not make the proportionality balance decisive in favour of the appellant because the children’s primary relationship remained with their parents, who could care for them, and because other factors (including the public interest in immigration control and the nature of the appellant’s precarious status) weighed against granting leave.

Subsidiary findings and context. The court accepted that delay in enforcement can reduce the cogency of removal and is a relevant factor, but held that on the facts the UT did not err in assigning only limited weight to the Secretary of State’s delay. The court also rejected the appellant’s complaints about the adequacy of the UT’s reasoning and its treatment of the F-tT’s factual findings: the UT had addressed the children’s best interests and the nature of the appellant’s role and was entitled to the view it reached.

The appeal is dismissed. The Court concluded that the First-tier Tribunal erred in law by failing to take into account that the relevant family relationships were formed or developed while the appellant was unlawfully present, which is a mandatory relevant consideration in the article 8 proportionality assessment. The Upper Tribunal correctly identified that error and lawfully re-made the decision, reasonably balancing the children’s best interests against the public interest in immigration control and the appellant’s prolonged unlawful status.

Appeal to the Upper Tribunal (Immigration and Asylum Chamber) from the First-tier Tribunal (Immigration and Asylum Chamber) (F-tT determination allowing appellant's article 8 claim); UT set aside and re-made the F-tT decision (UI-2022-006623). Appeal to the Court of Appeal from the UT decision [2025] EWCA Civ 355 (this judgment).