Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-000669

First-tier Tribunal No: HU/56694/2023
IA/00687/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 May 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

Sunday John Ihenjirika
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr J Kasausula, Kas & Co Solicitors
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 30 January 2025
Decision and Reasons
Introduction
1. The appellant is a national of Nigeria. On 19 March 2023 he made an application for entry to the UK under Appendix FM to the Immigration Rules on the basis of his family life with his partner and son. The application was refused by the respondent for reasons set out in a decision dated 9 May 2023.
2. The appellant's appeal against that decision was dismissed by First-tier Tribunal Judge Buchanan (“the judge”) for reasons set out in a decision dated 10 January 2024. In summary, the appellant claims the judge erred in law in inaccurately reading the facts of the case and made an inaccurate assessment resulting in an erroneous decision. The appellant claims the judge erred in failing to take into account the best interests of the child as a primary consideration. It is said the judge erred in failing to consider the financial and emotional effects on the child. The appellant claims the judge failed to consider the significant advantages that are afforded to children who have active and involved fathers during their childhood and into their adolescence, and the impact on the family as a whole. The appellant claims the judge acted ‘unfairly’ in his consideration of whether the appellant and his spouse continue to have a genuine and subsisting relationship and failed to consider the detrimental impact upon the appellant and his right to continue to maintain his family life in the UK. The judge placed undue weight upon the fact that the family have not lived together in the UK and gave inadequate weight to the evidence presented.
3. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Lawrence on 27 February 2024. Judge Lawrence said:
“2. It is arguable that the judge materially erred by failing to have regard to the potential advantages for the affected British citizen child’s development, identity, and welfare in admitting his father the Appellant to live with the child in the United Kingdom, or to the potential for family life to be strengthened by admitting the Appellant to that country.”
The Background
4. The background to the appellant’s application for Entry Clearance is that he married his partner in Nigeria on 18 September 2003. His partner is a national of Nigeria. His partner arrived in the UK in 2007 as a student and on 1 May 2008 she gave birth to their son who we will refer to as ‘JCI’. JCI is now a British Citizen. The appellant’s partner and JCI visited Nigeria in December 2021 and that is they only time when the appellant has had any direct and face-to-face contact with his son. The appellant had not met his son in person before that, and neither has he been able to see him since. Their relationship, because of the geographical distance between them, has been limited to regular communication, in the main via social media.
5. The appellant’s partner is employed full time as a Rehabilitation Support Worker and currently has limited leave to remain in the UK based upon her family life with JCI, under the 10-year route to settlement. It is in that context that the appellant made his application for Entry Clearance to join his partner and child in the United Kingdom.
The Hearing before US
6. Mr Kasausula submits the appellant is the father of a British Citizen. He submits the judge failed to conduct a proper proportionality assessment. He submits it cannot be proportionate for a child who is a British Citizen to only be permitted to see his father once in his life and for the respondent to refuse Entry Clearance. Their separation, Mr Kasausula submits, cannot be in the child’s best interests. The refusal of Entry Clearance prevents the appellant from being able to participate in his son’s life and take part in important activities such as attending school events. Mr Kasausula submits the relationship between the appellant and [JCI] is not challenged. The only direct contact that the appellant has been able to enjoy with his son was limited to the one visit that his partner and son made together to Nigeria in December 2021. There were photographs of the family together before the Tribunal. There was also some evidence of regular communication between the appellant and his son in the form of social media messaging. The appellant has been unable to secure entry clearance to the UK as a visitor and regular travel by the appellant’s son and partner to Nigeria is impossible because of the costs involved, relative to the earnings of his partner. He submits the decision to refuse entry clearance cannot be proportionate and the judge erred in concluding that it was based on the evidence before the Tribunal.
7. In reply, Mr Mullen submits there is no error of law in the decision of the judge. He submits this is a paradigm case of a complaint that the judge simply did not accept the choice made by the family that they wish to live together in the UK. It is true that in general it is in a child’s best interests to live with both parents. That however is not always possible and here, there was no evidence of any adverse impact on the child by what has been a long-standing arrangement with the appellant remaining in Nigeria and his partner and son living in the UK. Mr Mullen submits it is clear that the Judge considered all the evidence that was available and conducted the proportionality assessment having regard to all relevant evidence and factors. The weight to be attached to the various strands of evidence was a matter for the judge.
8. After hearing the parties’ submissions, we considered the matter and informed the parties that we are satisfied that there is no material error of law in the decision of the FtT judge and we dismiss the appeal. We informed the parties that we would set out our reasons for doing so in our written decision and this we now do.
Decision
9. The assessment of an Article 8 claim such as this is always a highly fact sensitive task. The judge recorded at paragraph [5]:
“At the beginning of the Hearing, the appellant informed the Tribunal that he relies only on paragraph GEN.3.2 of Appendix FM and on his article 8 ECHR grounds of appeal. I was informed that the appellant accepts that he cannot satisfy the provisions of the principal Immigration Rules relating to entry clearance or leave to enter as a partner because in terms of the Rules, his partner is not eligible to sponsor him.”
10. At paragraph [7], the judge noted that the issue in the appeal is whether the refusal of entry clearance breaches the appellant’s right to respect for private and family life under Article 8 ECHR, and, that right is qualified. He noted, at [10], that the appellant’s partner is on a ten-year route to settlement, and at paragraph [11] that the appellant’s son acquired British citizenship in August 2018. The judge addressed the best interests of the child at paragraphs [13] to [22] of the decision.
11. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, Lady Hale confirmed that the best interests of a child are “a primary consideration”, which, she emphasised, was not the same as “the primary consideration”, still less “the paramount consideration”. As a starting point, we readily accept that the best interests of a child are usually best served by being with both or at least one of their parents. Here, the judge noted that the child has always lived in the UK, and that any disruption caused to his schooling at this time would not be in his best interests. It is clear therefore that the child will remain living in the UK. The judge noted that the most obvious impact on the child’s best interests currently is that he does not have a father in his day-to-day life living with him in the UK, and, that he has limited contact with his father. The judge refers to the evidence of the appellant’s partner, and their son. He noted that normally it is in a child’s best interests for the whole family to remain together, but here the appellant has never lived with his son, except for the one occasion in 2021 when the appellant’s son visited Nigeria. At paragraph [22], the judge said:
“In the state of the evidence presented at appeal, the appellant does not persuade me that there would be any material impact to his son’s welfare if the appellant was not granted entry clearance. On the available evidence, the child’s best interests are served by maintaining the present living arrangements.”
12. The judge went on to note that the requirement for entry clearance set out in Appendix FM of the immigration rules cannot be met and at paragraphs [25] to [33] addressed the consequences of the refusal of entry clearance. The judge noted that the respondent accepts the appellant has a family life with his partner and child for the purposes of Article 8. Article 8 is plainly engaged and the decision to refuse the appellant leave to enter has consequences of such gravity as to engage the operation of Article 8. The judge accepted, at [32], that the decision to refuse entry clearance amount to an interference with the Article 8 rights of the family who wish to live together as a family unit in the UK. The issue in this appeal was whether the decision to refuse leave to enter is proportionate to the legitimate aim, which requires a fact sensitive assessment.
13. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, Lord Reed emphasised that the failure to meet the requirements of the Immigration Rules is a relevant and important consideration in an Article 8 assessment because the Immigration Rules reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament.
14. It was uncontroversial that the appellant does not meet the requirements for leave to enter set out in the immigration rules. As set out by the Court of Appeal in TZ (Pakistan) [2018] EWCA Civ 1109, compliance with the immigration rules would usually mean that there is nothing on the respondent’s side of the scales to show that the refusal of the claim could be justified. At paragraphs [32] to [34], the Senior President of Tribunals confirmed that where a person meets the rules, the human rights appeal must succeed because ‘considerable weight’ must be given to the respondent’s policy as set out in the rules. Conversely, if the rules are not met, although not determinative, that is a factor which strengthens the weight to be attached to the public interest in maintaining immigration control.
15. The importance of, and weight to be given to immigration control has been underscored by Parliament in s117 of the Nationality, Immigration and Asylum Act 2002 (as amended). Whether the decision is proportion is addressed at paragraphs [34] to [45] of the decision. The judge considered the factors that weigh in favour of the grant of entry clearance, such as the family’s wish to live together in the UK, against the factors that weigh against the appellant. When the decision of the FtT is read as a whole, we are satisfied that the decision demonstrates 'the building blocks of the reasoned judicial process' in which the judge identified the issues in the appeal and considered the evidence which bears on those issues, and giving reasons for the decision that he reached. There were substantial gaps in the evidence that the judge was plainly entitled to have regard to.
16. The weight to be attached to the various factors and where they fall in the balancing exercise was a matter for the judge based upon his evaluation of the evidence as a whole. In the end, the judge concluded that on the facts here, the decision to refuse entry clearance strikes a fair balance between the rights of the appellant and his partner and child, when weighed against the wider interests of society having regard to the relevant public interest considerations.
17. A fact-sensitive analysis of the evidence was required. We are satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.
18. It follows that we are satisfied that there is no material error of law in the decision of the FtT and we dismiss the appeal.
Notice of Decision
19. The appeal to the Upper Tribunal is dismissed.
20. The decision of First-tier Tribunal Judge Buchanan dated 10 January 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 January 2025