Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001010

First-tier Tribunal No: HU/55661/2023
LH/06750/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th January 2026

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

SA
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER (ECO)
Respondent

Representation:
For the Appellant: Ms K Elliot, instructed by Secretary of State on behalf of the ECO
For the Respondent: Mr A Slatter instructed by Sterling Law Associates

Heard at Field House on 29 October 2025

DECISION AND REASONS

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of his family is granted anonymity owing to the age of the appellant.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant and family member. Failure to comply with this order could amount to a contempt of court.

1. The application for permission to appeal was made by the Secretary of State on behalf of the ECO but for the purposes of this decision I shall refer to the parties as they were described before the FtT, that is SA as the appellant and the ECO as the respondent.
2. The respondent appealed against the decision of FtT Judge PW Harris who on 29th January 2024 allowed (on human rights grounds) the appellant’s appeal against the respondent’s decision dated 22nd March 2023 refusing his entry clearance application under Appendix FM to the Immigration Rules.
The background
3. The appellant is an Albanian national born on 1st March 2008.
4. The background to this appeal was the marriage of LAJ, the appellant’s brother, to a Greek citizen on 5th March 2019, KM. His wife was then granted limited leave to remain under the EU Settlement Scheme (EUSS) on 24th June 2020 and LAJ was granted limited leave under the EUSS on 9th November 2020 as her husband. On 17th August 2021 LAJ’s parents, KM’s in laws and the appellant’s parents, applied for family permits under Appendix EU (family permit) to join LAJ in the UK with KM as the sponsor.
5. On 7th January 2022 the parents were granted an EUSS family permit valid for 6 months and on their arrival, they received limited leave to enter until 7th July 2022. The appellant remained in Albania and has continued to live there for 3 ½ years since his parents left for the UK. On 7th February 2022 the parents applied for limited leave to remain in the UK under the EUSS as dependent joining family members of a relevant sponsor. The appellant was not able to apply for an EUSS family permit as a joining family member because this is limited to spouses, civil partners durable partners, dependent parents and children of an EEA citizen. On 11th April the parents were granted limited leave to remain in the UK under the EUSS and their leave now expires on 12th April 2027.
6. On 1st December 2022 the appellant applied for entry clearance to the UK under Appendix FM. It was said before the FtT that the reason for the application was that the appellant had been cared for in Albania by his adult sister but that was no longer possible. The parents returned intermittently to Albania to care for the appellant. The application was refused on 22nd March 2023, and it was not considered there were any exceptional circumstances.
The letter of refusal dated 22nd March 2023
7. This recorded that the applicant, an Albanian national born on 1st March 2008 (now 17 years and 8 months) made an application for entry clearance on 1st December 2022 under Appendix FM of the Immigration Rules as the child of his parents who had applied for limited leave as a partner or parent. It was decided that the appellant did not meet the eligibility requirements of the relationship under E-ECC.1.2 -1.6 nor the financial requirement under E-ECC.2.1-2.4. (failure to show relevant financial documentation) of Appendix FM. It was noted that both parents had limited leave to remain under Appendix EU issued on 11th April 2022.
8. The respondent also considered paragraphs GEN 3.1 and 3.2 of Appendix FM as to whether there were any exceptional circumstances which would result in unjustifiably harsh consequences thus rendering refusal a breach of Article 8 of the ECHR. The factors were considered individually and cumulatively noting that the desire to live in the UK did not oblige the UK to accept the choice of a child and their parent as to which country they preferred to reside. It was observed that the appellant’s father and mother had made a decision to settle in the UK knowing and accepting that they would have to meet the immigration requirements of the UK in order for the appellant to join them. The respondent concluded that the decision was proportionate and justified by the need to maintain an effective immigration and border control.
The FtT decision
9. The judge allowed the appeal having before him documentation in the form of bundles from the appellant including witness statements of the appellant and various members of his family, a supplementary bundle, a third bundle and the respondent’s review and response. The judge also heard oral evidence. Mr Slatter at that appeal confirmed that he did not seek to rely on the new matter that being paragraph 297 of the Immigration Rules. It was recorded at [9] that the appellant also accepted that he could not ‘succeed under Appendix FM’ because his parents had only been granted limited leave to remain (pre-settled status) under Appendix EU (FP) and not Appendix FM. It was not disputed that there was family life, and the key issue was whether the refusal amounted to a disproportionate interference with the appellant’s human rights.
10. The judge noted that the mother could support the appellant without reference to third party support. The judge considered the best interests of the appellant as a primary consideration. It was noted that the father from time to time made visits to Albania and that the appellant was a teenager. The judge concluded that the appellant remained a child and in need of care and support which was ‘best provided by his parents compared to his sister or any other relative in Albania’, [26]. Further, the judge continued ‘on the evidence in this appeal I find that it is in the appellant’s best interests to reside with both his parents rather than depend on modern means of communications and the current arrangements of visits by his father from the UK.’
11. The judge at [27] and [28] stated
‘Given the immigration status of the parents the real-world alternative to the current arrangement is for the appellant to join his parents, and indeed his brother and his family, in this country. It has not been argued before me by the respondent that the claimed accommodation available to the appellant in this country is anything but suitable. In the circumstances I find that the best interests of the appellant are for him to reside with both his parents in this country.
Given the age of the appellant and his needs as a child, I find it would be unjustifiably harsh for the appellant to reside in Albania apart from his parents. It is in this context that I find the best interests of the appellant outweigh the factors relied upon by the respondent. Weighing up the matters before me, I find that there are compelling circumstances which make the decision of the respondent disproportionate and in breach of Article 8.’
12. The judge decided the decision of the respondent was unlawful on human rights grounds and allowed the appeal.
Application for permission to appeal and litigation history
13. The respondent asserted that the judge had failed to reason why the appellant could not live with his parents in Albania. There was no finding that the parents could not go to Albania, and they had provided no reasons as to why. It was accepted that the appellant was not responsible for his parents’ decision to come to the UK and leave him in Albania but that did not lead to a conclusion that he should come here. There was a failure to assess the appellant’s circumstances in Albania and whether it was credible that his older sister had moved away from him [23] despite there being no documentary evidence to this effect. It was not credible that a 15-year-old would have been left in Albania without adequate care and without legal repercussions.
14. It was submitted that the judge had failed to provide adequate reasoning on the alternative solution of the parents returning to Albania.
15. In a renewal application for permission to appeal it was submitted that the respondent had advanced at the hearing before the FtT that the parents could return.
16. Permission to appeal was granted by DUTJ Lewis who considered it arguable that the judge had failed to take into account the possibility of the appellant’s parents returning to Albania and /or inappropriately accorded weight to their EUSS pre settled status (EUSS) in a manner inconsistent with the earlier observation on the scheme of the immigration rules.
17. The appeal was considered in the Upper Tribunal by UTJ McWilliam who found an error of law on 26th June 2024 and proceeded to set aside the FtT decision on 26th June 2024, and at the same time remake and dismiss the appeal.
18. The matter was appealed to the Court of Appeal and, in the event, allowed by consent owing to the failure to exercise the discretion contained in s.12(2)(b) of the Tribunals Courts and Enforcement Act 2007 (remission to the FtT) or alternatively in failing to give adequate reasons for its decision in exercising that discretion.
19. The Court of Appeal then remitted the appeal to the Upper Tribunal to determine the question, when considering proportionality under Article 8, of whether it would be proportionate for the appellant’s parents to return to Albania and for their family life to continue there.
20. Permission to appeal to the Court of Appeal was granted on 3rd February 2025 with the following comments
“[4]…it is certainly arguable that in para 28 the UTJ failed properly to exercise the discretion to send the matter back to the FTT in order that the proportionality assessment could be carried out having regard to all material factors/information…
[6] The real question was whether the UTJ should have sent this matter back to the FTT under subsection [12.2(b)(i) of the 2007 Act]. She has not really explained why it was fair and just for the UT, as opposed to the FTT, to remake the decision in circumstances where the error of law was simply the failure to take one material factor into account in the proportionality exercise. By re-making the decision herself, the UTJ created a situation in which the second appeals test had to be satisfied if the appellant considered that she erred in law.”
21. The Secretary of State considered her position in the light of the grant and accepted there was sufficient basis on which to find that the UT failed to exercise her discretion under s12(2)(b) of the TCE.
22. The matter came before me to decide de novo whether there was a material error of law and if so, to exercise my discretion as to the remaking.
23. Directions were set down by UTJ Mandalia on 4th August 2025. The appellant’s representatives submitted a skeleton argument, but the Secretary of State failed to submit a reply until 23rd October 2025 before the hearing. In effect an application for an extension of time was made. The appellant’s representatives objected and submitted that either the Secretary of State’s response be rejected or the hearing of 29th October 20025 be adjourned. That application was refused. At the hearing Mr Slatter made an application for costs.
Documentation
24. For the appeal I had the appellant’s and respondent’s bundles before the FtT, a supplementary bundle and documentation from the Court of Appeal. The appellant’s further bundle included updated witness statements from Mr LAJ (appellant’s brother), Mrs MA (appellant’s mother and Mr KA (appellant’s father) all dated 28th August 2025 and letter from SAL (appellant’s sister) dated 28th August 2025 and financial documentation including costs of living in Albania, flight details, text messages and updated skeleton arguments.
25. None of the witnesses were required to give oral evidence and relied on their statements.
Submissions
26. Ms Eliot, on behalf of the Secretary of State, relied substantially for the error of law on her skeleton argument. It was submitted that if there were exceptional circumstances then the appeal might be granted under Appendix FM itself. On the error of law there were two issues, the first that the judge had failed to consider or provide adequate reasons as to whether the parents could reasonably be expected to continue their family life in Albania. Secondly the judge erred in giving any weight to the alleged unjustified difference in treatment between parent sponsors under Appendix FM and those granted leave under the EUSS.
27. Further to Huang v SSHD [2007] UKHL 11 when considering Article 8 disproportionality the judge was required to consider whether the appellant’s family life with his parents could reasonably be expected to be enjoyed elsewhere. Although the best interests of the child must be taken into account as a primary consideration this did not act as a ‘trump card’. The issue of whether he and his parents could live together in Albania again must still be considered, SS Congo [2015] EWCA Civ 387 [39]
28. It was accepted before the FtT that the refusal may amount to an interference with the appellant’s article 8 rights, but it was considered in accordance with the law and necessary within the meaning of article 8. The sole issue was whether such interference was disproportionate. The judge had given no consideration to the question of whether it would be possible for the appellant’s parents to return to Albania and there was no reference to this point in the judge’s decision. This point was expressly raised by counsel representing the Secretary of State at the FtT hearing and which point counsel for the appellant accepted at the hearing before the Upper Tribunal on 21st May 2024.
29. Additionally, counsel for the appellant invited the judge to take account of the lack of policy objective for the difference in treatment in the Rules between parents granted leave under Appendix Fm and those granted leave under Appendix EU.
30. It was noted that the consent order in the Court of Appeal was sealed only in relation to ground 2 that is the exercise of discretion in whether to remit the matter to the FtT or note. However, the case management directions on 1st August 2025 (sealed on 4th August 2025) made clear that the earlier UT decision was set aside, the error of law needed to be addressed, and in the event the UT were to determine the FtT had materially erred, the appellant would be able to provide and rely on up-to-date evidence. Updating evidence had been served.
31. The judge entirely failed to consider the relevant question of whether the parents could remove to Albania and the judge was guided by the unreasoned assumption that the appellant’s best interests required him to live in the UK with his parents despite his age, he was now nearly 18, he had lived and been educated in Albania for his entire life and has no familiarity with the UK at all, his sister had been his primary care giver since his parents left Albania over 3 ½ years ago, there was a lack of evidence that the appellant had been adversely affected by his parents’ absence other than an assertion that he is frustrated by not being able to come to the UK and his parents’ status in the UK has under 1 ½ years remaining. This was a material error of law. Inadequate reasoning was given.
32. In terms of issue 2 the FtT has no jurisdiction to consider the lawfulness of the immigration rules including any allegation of unjustified differential treatment and this should have been entertained, particularly where Appendix FM included provision for individuals who did not meet the criteria nevertheless to be granted leave if otherwise it would be disproportionate.
33. There was no basis on which to compare the appellant’s situation with that of the parents having been granted leave under Appendix FM because the brother could not sponsor the parents as adult dependent parents as he did not have the relevant leave and he did not meet the status requirements under Appendix FM. Even if they had been granted leave they could not have acted as sponsors until they themselves had been granted ILR. The UT was specifically asked to remake the appeal without referral to the FtT.
34. Ms Elliot added in oral submissions that the appeal was now run on the wider basis of the relationship with the parents and the older brother and niece. This was not pursued before the FtT. What was said in the skeleton argument by Mr Slatter was incorrect. It was expressly recorded by the UT previously that the issue of the parents returning was run before the FtT. Further the statement in relation to SS (Congo) at [9] of the skeleton argument was a misstatement.
35. Mr Slatter relied in substance on his skeleton argument. The choice referenced in the reasons for refusal letter was just that. He accepted that the point was raised before the FtT judge, but it was not surprising that the matter was dealt with as it was.
36. EV (Philippines) [2014] EWCA Civ 874 advocated the background against which the matter should be assessed. Here both parents had the right to remain in the UK and that was relevant. That is what the judge had done. The judge was required to consider the real-world facts and the parents had pre-settled status. The judge unarguably complied with MK (Duty to give reasons) Pakistan [2013] UKUT 641 (IAC) and did not need to say anymore. In terms of ground 2 that was not material because the judge in allowing the appeal under GEN 3.2 found that that was dispositive of the Article 8 appeal. The issue on the rules was not material and no weight attached to it.
37. It was noted that the appellant’s parents had both been granted limited leave to remain under the EUSS on 11th April 2022 (not Appendix FM) and the respondent did not accept that the £22,400 per annum eligibility financial requirements were met on the basis that the specified documents were not submitted. The Entry Clearance Officer considered there to be no exceptional circumstances. It was submitted that the judge did consider whether family life could reasonably be expected to continue in Albania and the judge followed GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630 at [42].
38. The background was that the parents had pre-settled status in the UK based on their relationship with the appellant’s elder brother. The judge considered the appellant’s best interests against that background and whether family life could be carried on in Albania. This issue had not been raised as an issue prior to oral submissions before the FtT. The leave sought was to enable to respondent to live with his parents and sponsoring brother in the UK. The sister had left the family home to continue her education. The judge had considered the best interests of the appellant.
39. Whilst the judge took into account the failure by the Secretary of State to identify any specific policy explanation for why those with the parents’ status under the EUSS scheme were ineligible to sponsor a child it is clear that at [18], the judge was not persuaded that the weight to be attributed to s117B(1) was significantly reduced by that failure. Any error by the judge in taking this into account was not material.
40. I canvassed the point on remittal to the FtT for remaking, but Mr Slatter confirmed that he was content for the Upper Tribunal to remake the decision because the appeal had been going on for a long time. He did not intend to call the witnesses because the Secretary of State did not intend to cross examine them. He confirmed that he was content to proceed on the day.
41. When asked to make submissions on remaking Ms Elliot confirmed that the appellant did not speak English. His witness statement was made with an Albanian interpreter. He was about to transition to adulthood. He would have the stability and benefit of growing up in a culture which he was used to. There was no evidence he could not obtain employment. He would be too old to be entitled to full time education in the UK and that was a significant factor. The language would be a significant barrier. He would be entirely dependent on his family. There was no persuasive evidence that the family could not resume life in Albania until he reached adulthood. The issues of childcare (for the granddaughter), higher education or work were not issues for Article 8 to resolve. The appellant did not have the same care needs as he would have done when the parents entered the UK. That evidence had not been updated since 2023. There was nothing new from him to say why it was not acceptable to stay in Albania and be visited. There was no evidence of any particular vulnerability and scoliosis, the medical condition of the appellant, was a minor condition. He had been living in the family house in Hot with visits from his father and his sister. That could continue. He had been in full time education in Albania. There were no unjustifiably harsh consequences to the refusal, and the decision was not, in the circumstances disproportionate. The appeal had been brought purely on the basis of family life with the parents. There was no evidence he could speak English and the picture on his financial independence was at best mixed. I was invited to dismiss the appeal.
42. Further submissions were made on remaking by Mr Slatter. The written skeleton argument stated, ‘The UT will be invited to make findings in line with the evidence adduced’. Arshad v SSHD [2025] EWCA Civ 355 [118] was cited in terms of the assessment and weight of family relationships. It was accepted that the parents’ status is ‘precarious’ as per Rhuppiah v SSHD [2028] UKSC 58, but the parents were on a path to settlement. None of the relationships were created nor developed whilst any of them were in the UK unlawfully (in terms of the application of s117B(4) and (5) of the 2002 Act).
43. In particular the exceptional circumstances provision of GEN 3.2 and GEN 3.3 of Appendix FM were satisfied, and this was determinative of the appellant’s appeal: TZ and PG v SSHD [2018] EWCA Civ 1109 at [34]. The exceptional circumstances referenced ‘unjustifiably harsh consequences’ of refusal.
44. The best interests of the child and Beoku-Betts [2008] UKHL 39 and ZH (Tanzania) v SSHD [2011] UKSC 4 should be taken into account. The consequences for the parents and brother would be unjustifiably harsh. The nature of rights being relinquished was also a relevant factor. The appellant’s brother could not reasonably be expected to remove to Albania and best interests of the appellant are to be with both his parents in the UK. The mother of the appellant now cares for her granddaughter in the UK and although the brother and his wife had parted but they have a child. The best interests of the appellant are to remain not only with the parents but in the UK with his brother.
45. In terms of remaking, Mr Slatter relied on his skeleton argument. The best interests of the child was to join family members in the UK and Butt [2025] EWCA Civ 189 [67] was cited. No other public interest element outweighed that fact. The appellant now relied on the financial support of his mother’s UK earnings rather than those of the brother who had other financial commitments. The brother should also be taken into account as per Beoku-Betts. It was assumed that the family life being carried on in Albania was on the basis the family could relinquish their pathway in the UK to settled status. This was a relevant consideration.
Conclusions
46. Updating evidence was filed on the appellant’s behalf and this included a letter from KM dated 29th August 2025 stating that she was in the process of obtaining a divorce from the elder brother, LAJ, and no longer lived with him. LAJ was granted indefinite leave to remain in the UK under the EUSS on 2nd October 2024 and he stated in his updated evidence that he would no longer be able to provide any financial support for the appellant who should be allowed to enter the UK. The brother was now said to be dependent for childcare on his mother in the UK.
47. Bearing in mind the challenge to the FtT decision it assists to set out [39] of SS (Congo) as follows:-
‘In our judgment, the position under Article 8 in relation to an application for LTE on the basis of family life with a person already in the United Kingdom is as follows:
i) A person outside the United Kingdom may have a good claim under Article 8 to be allowed to enter the United Kingdom to join family members already here so as to continue or develop existing family life: see e.g. Gül v Switzerland (1996) 22 EHRR 93 and Sen v Netherlands (2001) 36 EHRR 7. Article 8 does not confer an automatic right of entry, however. Article 8 imposes no general obligation on a state to facilitate the choice made by a married couple to reside in it: R (Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para. [42]; Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, [68]; Gül v Switzerland, [38]. The state is entitled to control immigration: Huang, para. [18].
ii) The approach to identifying positive obligations under Article 8(1) draws on Article 8(2) by analogy, but is not identical with analysis under Article 8(2): see, in the immigration context, Abdulaziz, Cabales and Balkandali v United Kingdom, paras. [67]-[68]; Gül v Switzerland, [38]; and Sen v Netherlands, [31]-[32]. See also the general guidance on the applicable principles given by the Grand Chamber of the ECtHR in Draon v France (2006) 42 EHRR 40 at paras. [105]-[108], summarising the effect of the leading authorities as follows (omitting footnotes):
"105. While the essential object of Art.8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective "respect" for family life. The boundaries between the State's positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph, "in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance".
106. "Respect" for family life … implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally. The Court has held that a state is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other.
107. However, since the concept of respect is not precisely defined, states enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals.
108. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight."
iii) In deciding whether to grant LTE to a family member outside the United Kingdom, the state authorities may have regard to a range of factors, including the pressure which admission of an applicant may place upon public resources, the desirability of promoting social integration and harmony and so forth. Refusal of LTE in cases where these interests may be undermined may be fair and proportionate to the legitimate interests identified in Article 8(2) of "the economic well-being of the country" and "the protection of the rights and freedoms of others" (taxpayers and members of society generally). A court will be slow to find an implied positive obligation which would involve imposing on the state significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the state in the public interest, a matter which usually calls for consideration under democratic procedures.
iv) On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UN Convention on the Rights of the Child (1989): see In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] AC 144, at [26]. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have their application acceded to; see In re E (Children) at [12] and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, at [25] (under Article 3(1) of the UN Convention on the Rights of the Child the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the state authorities in deciding what to do. The age of the child, the closeness of their relationship with the other family member in the United Kingdom and whether the family could live together elsewhere are likely to be important factors which should be borne in mind.
v) If family life can be carried on elsewhere, it is unlikely that "a direct and immediate link" will exist between the measures requested by an applicant and his family life (Draon, para. [106]; Botta v Italy (1998) 26 EHRR 241, para. [35]), such as to provide the basis for an implied obligation upon the state under Article 8(1) to grant LTE; see also Gül v Switzerland, [42].
48. The underlying question focusses on what should be considered under Article 8 in relation to an application for LTE on the basis of family life with a person already in the United Kingdom I draw attention to one of the issues outlined at [39 (v)] in the extract cited above.
49. In my view not only did the Secretary of State set out in her refusal letter that ‘the desire to live in the UK did not oblige the UK to accept the choice of a child and their parent as to which country they preferred to reside’, the matter was raised before the FtT by counsel for the Secretary of State but of critical importance is that SS (Congo), extant law at the time of the FtT decision clearly sets out what factors should be taken into account when undertaking the proportionality assessment.
50. In one of the most well-known passages in Huang the House of Lords concluded as follows
‘20. In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.’
51. That plainly sets out the question which the FtT judge should have addressed whether or not raised in the refusal letter or review. All relevant factors need to be considered. The judge did not do so and that is a material error of law.
52. In relation to the comparison of the appellant’s situation under the EUSS scheme and Appendix FM and any unjustified differential treatment, I accept that there was no basis on which to compare the appellant’s situation under the two very different schemes. Under Appendix FM, the brother could not sponsor the parents as adult dependent parents as he did not have the relevant leave, and he did not meet the status requirements under Appendix FM. Even if they had been granted leave the parents could not have acted as sponsors until they themselves had been granted Indefinite Leave to Remain. I am not, however, persuaded that the judge did factor into his consideration under article 8 the issue of any unjustified differential treatment. I shall say no more about that either in relation to the error of law by the FtT nor in my remaking.
Decision on error of law
53. The Judge erred materially for the reasons identified. I set aside the FtT decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007)
54. Having considered Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), I considered my discretion. I raise the matter of remittal to the FtT owing to the extent of findings that needed to be made and in the context of the Court of Appeal order but both counsel urged that the appeal be remade in the Upper Tribunal before me. It is rather surprising that having appealed to the Court of Appeal on the basis that the matter was not remitted to the FtT, or rather there was no exercise of discretion thereto, that there was active resistance to the prospect, of the matter being remitted to the FtT on the basis of delay bearing in mind standard directions are routinely issued prior to an error of law hearing and specifically permit under rule 15(2)A of the Tribunal Procedure (Upper Tribunal) Rules 2008 further evidence to be provided and admitted so that matters can be dealt with, including remaking, expeditiously by the Upper Tribunal.
55. Following receipt of submissions by the parties, however, who requested retention in the UT and made no further submissions for adjournment for further evidence, I retained the matter in the Upper Tribunal for remaking under section 12(2) (b) (ii) of the TCE 2007. There was no procedural challenge and further to Section 12 (2) of the TCE 2007 and 7.2 of the Presidential Practice Statement I concluded the appeal could be fairly considered in the Upper Tribunal.
Remaking
56. The best interests of the appellant are considered a primary factor, ZH (Tanzania) v SSHD [2011] UKSC 4 and I was invited by Mr Slatter to consider, and have done so, GM v SSHD which held at [42]:
‘Where children are involved their best interests are said to be "paramount": Ali paragraph [29] citing with approval Jeunesse (ibid) at paragraph [109]. Standing alone the rights of children cannot be decisive; nonetheless they must be "afforded significant weight": Ali paragraph [28]. See also section 55 of the Borders, Citizenship and Immigration Act 2009. In KO (ibid) Lord Reed, summarising the position, pointed out: (i) that a child cannot be blamed for the conduct of the parents even where that is characterised by criminality or misconduct (which is not the case in this appeal) (paragraphs [15] and [16]); (ii) the question is "what is reasonable" for the child (paragraph [16]); (iii) it is "inevitably relevant" to determine where the parents "are expected to be" and the record of the parents might thereby become relevant if it leads to their ceasing to have a right to remain in the United Kingdom and having to leave (paragraph [18] citing with approval the judgment SA (Bangladesh) v SSHD 2017 (ibid) at paragraph [22]). Lord Reed also cited, to similar effect, Lewison LJ in EV Philippines (ibid) at paragraphs [58] where the Court of Appeal made clear that if one parent has no right to remain, but the other parent does, then that is the "… background against which the assessment" must be conducted.’
57. At present the best interests were put forward as the appellant living with his parents. The appellant has been educated in Albania, will no doubt have friends and has his sister in Albania, has medical care in Albania and speaks Albanian. I conclude that the best interests of the appellant are in fact to remain in Albania and for his parents to be there with him until at least his adulthood. The appellant will be 18 years old next March 2026, in approximately 3 months’ time but I stress I have considered his situation as a minor. He was described as being frustrated and that the immigration process had taken a huge toll on his mental health and wellbeing but there was no medical evidence of that and secondly simply to uproot the appellant would not in my view be in his best interests. There was no expert report to the effect that his best interests, medically or educationally, would be served by being in the UK. He does not even speak English.
58. There was no medical evidence of mental health issues and limited medical evidence of the appellant’s physical condition which dated from August 2022 stating he should be careful in sports and refrain from carrying his school bag. No updated independent evidence was provided. Nor was there any indication of the education status of the appellant from a school or college. The school education certificate was dated August 2022 and confirmed that the mother had attended school regularly and not ceased her ‘connection’. The medical and educational evidence was dated and limited.
59. I take into account the backdrop of the parents’ status in the UK as per EV (Philippines). On 7th January 2022 the parents were granted an EUSS family permit valid for 6 months. They entered the UK on 1st February 2022. They currently have only limited leave; under the EUSS. The date of their entry to the UK is also relevant when considering the context.
60. I studied the witness statements of the family members and the appellant carefully.
61. The appellant in his statement dated 23rd August 2023 noted that the plan when his parents left was that he would be looked after by SAL his sister, as Shkoder where she studied was still in Albania. He added that his mother was working in the UK and ‘it usually is my father who would come and take me to doctors speak to my teachers and arrange for everything for the time being’. This statement emphasised that he did not feel the same way ‘as if my mother would be beside me’ but did indicate that the father took an active role. The mother in her statement of 23rd August 2023 confirmed that since the work of K the husband ‘is still not settled’, it was agreed that ‘one of us should go to [SA] quiet (sic) often’. She stated that the appellant was too young to stay alone. These statements were made in August 2023, sometime after the parents had entered the UK in February 2022.
62. The mother emphasised that it was her son’s education which was a priority, [8] of her witness statement. She also added that ‘in August 2022 my son after being diagnosed with scoliosis was advised to stop carrying his school bag and advised to have his parents accompanying him on a daily basis. He stated having physio sessions that [the father] accompanied him to.’
63. The brother also stated in his witness statement of 23rd August 2023 that ‘my father started travelling to Albania quiet(sic) frequently and cannot settle with work and other chores in England. This is because my parents are very concerned for [SA's] wellbeing and safety. He is too young to live alone and be left on his own’. He added ‘we are trying our best to make sure that either my father or my mother is present at all times’. As the mother was working as room attendant ([5] of the w/s) I conclude that this would fall to the father. In his updated statement of 29th August 2025, the brother stated at paragraph 3, ‘whenever my sister has not been able to look after [SA] due to being a full-time student in Shkoder, one or other of my parents needs to stay with him’. This does not indicate that the appellant has been left alone.
64. The ex-wife also added in her statement of 23rd August 2023 that
‘my father-in-law is the main person currently travelling to and from Albania as the rest of the family in England are working. However, my father-in-law cannot stay in Albania for a long period as it will put his visa in the UK under question when he applies for settlement in the future’.
65. I carefully read the mother’s updated statement which confirmed that the brother’s wife had moved back to live with her parents. It would appear that the sister in Albania was only travelling to the home during her holidays from college. The mother made no reference to weekend visits by the sister. In her witness statement, although the mother stated that she was ‘supporting [SAL] [the sister] to some extent when she needs it’ she also referred to the sister obtaining a job in Tirana where she, the sister, intended to study.
66. The mother asserted that there were no jobs available in northern Albania (Hot), but there was no objective evidence to support this. Kaur, R (on the application of the Secretary of State) [2018] EWCA Civ 1423 at [56-57] emphasises that bare assertions are insufficient. The key aim appeared to be to secure work ‘that would pay city living and housing costs, as well as for SA’s education’. It would appear from the witness statement that the intention was for the appellant to come to the UK where he would be able to live in the brother’s home and be ‘supervised through his education’ and the mother would provide all the care and support he needs ‘until he is ready to become an independent adult’. The mother in her statement of 29th August 2025 stated that
‘Meanwhile my husband, [K] normally travels to Albani to look after [SA] whenever needed’.
That suggests that the appellant is being cared for by the family.
67. The father’s witness statement translated from Albanian stated that it was imperative that the family remained in the UK and that the appellant ‘was not old enough to be left alone and he is still dependent on his family to support him’. His statement effectively reflected that of the mother.
68. The brother stated in his updated statement that he needed his family for emotional support. He shared parental responsibility with his wife, whom he was divorcing, for his own child but confirmed that he worked in construction as a window and door fitter. Although he stated he relied on his mother on Saturdays there was no reason given (bearing in mind the ex-wife has full time care of the child) why a child minder could not be recruited for the Saturday when needed. There was no explanation as to why other arrangements for childcare for the Saturday working by the appellant’s mother or brother could not be facilitated.
69. That said it was also confirmed by the brother that it was the father who had ‘normally’ been the one who travels to Albania to look after the appellant. It was also noted that the sister had completed her education and would ‘no longer be normally travelling back to Hot during holidays or weekends’ and that ‘she will be house-sharing and unable to provide any financial or practical support for many years’.
70. Thus, the statements of the brother and mother of August 2025 both indicated that the father was caring for the appellant ‘whenever needed’.
71. The brother stated that it was ‘imperative for’ his ‘family financial wellbeing that his parents were able to work in the UK. The brother in his witness statement of 23rd August 2023 stated that ‘he [the brother] left to the UK’ in 2018 but there is no indication that the family did not support itself financially in Albania until the date the brother started to assist in 2018 and he added at paragraph 3 that ‘it was decided that in order to have a better family budget my parents should join us [he and his then wife] in the UK’.
72. The brother also stated that he wished to move to a bigger home which would only be possible if his parents could contribute financially. That, however, is a financial consideration and wish on behalf of the brother and the wider family. LAJ also stated that it was impossible and unaffordable for the family to relocate with the appellant within Albania. As I state there is no evidence of employment prospects in Albania where the family lived for a considerable period.
73. The fact is, however, that the father is not working in the UK and can continue to travel to Albania to tend where necessary to the appellant as he has been doing.
74. The sister’s letter dated 28th August 2025 confirmed that she was currently awaiting the issue of her diploma in Business Administration and that her ‘intention is to continue with her studies in Tirana and actively considering employment opportunities. (it would appear she had been in Shkodra). She would therefore continue to be in Albania.
75. Although not axiomatic to my decision as it was not raised, I do note that there is a restriction in the lease agreement at 4.3.1 (pdf 88) that the tenants (the brother and mother ) must not ‘assign the tenancy, underlet, part with, or share possession or occupation of the Property or any part of it or take in lodgers or paying guests’. Although the appeal was put forward on the basis the only way the family was financially viable was for the appellant to come and stay with the family in the UK neither the appellant nor indeed the father appear to be permitted to reside there. Their housing is in Albania in a property which they have occupied apparently for generations.
76. The best interests of the appellant are to be with his family, but I conclude that he has been brought up in the family home in Albania, no doubt has friends and experienced education there, does not speak English and has not lived with both his parents since 2022. I simply do not accept that he is alone in Albania. There is someone either his sister or his father to care or be available for him and the evidence points to the father looking after him. It is a matter of choice whether the mother wishes to relinquish her work and return to Albania or not.
77. I simply do not accept that if there were no appropriate care arrangements that the mother and father would have left the appellant and consider that the reality is that as the mother states, the father visits quite often especially as he is not technically on the lease agreement and not working in the UK.
78. There was no mention of extended family and friends in Albania but clearly the sister remains in Albania and is evidence of the possibility of further education and work there. There is no reason save financially why the appellant cannot move to Tirana as the sister has if he chooses. The parents made a choice when they left Albania to seize the opportunity of a visa in the UK. As pointed out by Ms Eliot further education and finance are not issues to be resolved by article 8 but I do take into account that the appellant is/has been in education in Albania. The appellant has Albanian citizenship; there is no objective evidence that the mother cannot obtain work in Albania or the father for that matter. The family evidently lived in their family home in Hot until they came to the UK relatively recently. The choice of a visa or being with their son until he reaches maturity is a matter for them.
79. It was put to me that the parents may lose the right of obtaining further settled leave but not only are they on limited leave at present but by the date of the conclusion of their leave the appellant will have reached the age of maturity. I recognise that this is not a bright line but nonetheless is a factor to consider.
80. The applicant’s best interests are not a trump card although no other factor can be more significant. I appreciate the appellant is under age but from the evidence I conclude that he is being supervised by his father. The status quo has existed for the last 3 ½ years through various arrangements since his parents departed and can continue. No unjustifiably harsh consequences were demonstrated through the evidence. There were assertions as to the difficulties, but these were essentially assertions. There is medical care, education and family in Albania.
81. I have taken into account the interests of the parents and brother further to Beoku-Betts [2008] UKHL 39 but am not persuaded that their interests, bearing in mind the father appears to have retained a physical role in the appellant’s life and there is a choice for the parents to return if they wish, are such that they outweigh the public interest. I am not persuaded that there is family life between the brother and the appellant; his brother has made an independent life for himself by marrying and having children and he states himself he cannot fund his brother now (unless he comes to the UK and he needs the parents to contribute to his own financial circumstances). As per Arshad at [118]
‘There is, however, a range of different types of relationship which may amount to 'family life'. This, it seems to me, is what the Secretary of State was hinting at in her first ground of appeal to the UT. The family life of parents who live together with their young children is at the core of family life. It is, self-evidently, entitled to greater weight in any proportionality balance than more distant relationships, such as the relationships between adult siblings who have spent periods of their adult lives in separate households, and the relationships between a resident uncle and young children who have both parents living at home. The fact, therefore, that a fact-finder has classified a relationship or relationships as 'family life' for the purposes of article 8 is only a starting point. It is necessary to understand the nature and quality of the relationship before it can be weighed against other considerations.’
82. Even if there were a family life between the appellant and brother, it is so limited as not to present any compelling circumstances. The real world backdrop to this is that the parents are not being required, contrary to EV (Philippines), to leave the UK. They have a choice. In my view on the evidence presented as to the parental obstacles to return to Albania were not significant.
83. The appellant in my view has not, contrary to the arguments of Mr Slatter fulfilled the Immigration Rules, under GEN 3.2 or 3.3 of Appendix FM, as there are no compelling circumstances or unjustifiably harsh consequences and thus TZ and PG v SSHD [2018] EWCA Civ 1109 does not assist.
84. I was told repeatedly at the hearing that there was no requirement to consider the matter outside the rules as GEN 3.2 and 3.3 (although it was also submitted initially at the FtT hearing that Appendix FM did not apply) reflected any requirements under article 8, as per Butt. Notwithstanding I have considered the relevant stages of Razgar.
85. Article 8 is a qualified right and applying the relevant questions, I accept the appellant has a family life with his parents. I do not accept that he has a family life with his brother for the reasons given above. It is not clear whether the appellant has even met his niece. The threshold for interference in family life is low, and I accept that it may have been breached but the decision in the maintenance of immigration controls and maintenance of rights and freedoms is in accordance with the law.
86. I am not persuaded that any compelling circumstances were presented or evidenced to satisfy GEN 3.2-3.3. In any proportionality balancing exercise, weight must be placed on the fact that the immigration rules are not met
87. The material parts of section 117B of the Nationality Immigration and Asylum Act 2002 are as follows:
117B Article 8: public interest considerations applicable in all cases
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
…
88. There is no indication that the appellant can speak English and thus s117B(2) is to the appellant’s disadvantage.
89. Weighing all the factors in the balance, (and which I have detailed above) I consider that the decision to refuse the application was proportionate. Taking all relevant factors into account, when considering Article 8 proportionality the appellant’s family life with his parents could reasonably be expected to be enjoyed elsewhere than the United Kingdom, Huang v SSHD [2007] UKHL 11
Costs application and decision
90. At the close of the hearing Mr Slatter made clear that he wished to pursue his application for costs raised in relation to the submission of the Secretary of State’s late filing of her skeleton argument. I invited written submissions from both parties and the appellant’s submissions were filed on 5th November 2025 and the Secretary of State’s submissions were file on the 12th November 2025.
91. In essence Mr Slatter submitted that the respondent filed her skeleton argument on 23rd October 2025 contrary to the direction of UTJ Mandalia on 4th August 2025 who directed service by 19th September 2025. The hearing took place on 29th October 2025. Thus, Mr Slatter submitted the appellant was prevented from filing a written skeleton argument in reply and contrary to the directions of UTJ Mandalia.
92. Mr Slatter asserted that the respondent made no formal application to submit the skeleton argument late in response, the decision of the UT on 24th October 20215 to admit the skeleton argument was made without application of the mandatory SS (Congo) framework and the UT was not provided with evidence or satisfactory explanation. The appellant submitted the explanation for late service was inadequate. The order of 4th August 2025 was agreed between counsel, and the respondent had over 6 weeks to comply before the agreed deadline and should have requested an extension once the delay was foreseen. The delay was attributed to a multi-stakeholder meeting which was not substantiated by evidence or why it was necessary.
93. In essence, he submitted the UT judge is bound by the direction of the UT lawyer’s order dated 15th October 2025 such that sanctions should be directed to the defaulting party and in that order, it was recorded that default may mean that the party may no longer rely on any skeleton arguments. This should be enforced.
94. It was not reasonable to expect a written response to the respondent’s skeleton argument within the 3 working days left before the hearing as counsel had gone away. The appellant was deprived of the opportunity to respond in writing to substantive legal arguments newly raised. This was unreasonable conduct. This caused the appellant emotional strain, and the appellant incurred costs for the submissions on respondent’s non-compliance, communication with the respondent seeking updates and instruction of counsel and counsel’s fees for preparing a skeleton argument to be in response to the respondent’s skeleton argument.
95. The Secretary of State submitted that the costs claimed £225 by the solicitors for drafting the submissions on costs were in fact drafted by counsel. It is advanced that the assertion that the appellant SA was prevented from filing his written skeleton argument was not developed at all. No mention of counsel’s lack of availability was put to the GLD at any point before the hearing itself and the inconvenience to SA's counsel was not developed beyond provision of a basic diary entry which did not add anything. SA was given a generous amount of time to file her skeleton argument, and it was accepted that the extent of the additional evidence was not known to the Secretary of State.
96. The Secretary of State continued that the UT lawyer on 15th October 2025 did not adjourn the hearing and on the day of the hearing itself counsel for SA did not apply for an adjournment. There was a complex background to this matter and hence a multi-stakeholder meeting was required. It was accepted that directions were not complied with, but in the context of the error of law hearing the breach of directions was not ‘serious’ or ‘significant’. The appellant had not set out specifically what it was that inconvenienced counsel. He was able to make oral submissions on the hearing day and did not explain why he could not produce a speaking note if required. The appellant’s submissions did not explain what costs outside the reasonable exchanges between parties’ legal advisers in preparing were incurred and which might not otherwise have been.
Costs Conclusions
97. Reference was made by both parties to Rule 10(3)(d) of the Tribunal Procedure (Upper Tribunal) Rules 2008 such that the Tribunal may make an order for wasted costs if the UT considered that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings. It was submitted that Rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 dealing with sanctions should be applied consistently with Rule 6(2) of the FtT Rules as held in Maleci [2024] UKUT 28 at [47]. The headnote of Maleci held as follows:
(1) The First-tier Tribunal is empowered to issue directions regulating the filing and service of evidence in proceedings which provide sanctions in the event of non-compliance that led to the exclusion of evidence if the Tribunal considers this to be 'just'. Parties must appreciate that if they fail to comply with directions, they run the risk that the Tribunal will refuse to consider evidence that is not provided in accordance with those directions.
(2) What is 'just' will depend on the particular circumstances of each case but will be informed by the principles set out in SSHD v SS (Congo) and Others [2015] EWCA Civ 387.
98. The three stage test in SS (Congo) [2015] EWCA Civ 387 at [93] should be applied in considering relief from sanctions in the event of non-compliance.
‘93. It is common ground that the governing principles are those laid down in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, in which this court held that applications for extension of time for filing a notice of appeal should be approached in the same way as applications for relief from sanction under CPR rule 3.9 and in particular that the principles to be derived from Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 apply to them. According to the Denton restatement of the Mitchell guidance, in particular at paras. [24]-[38] of the judgment of the Master of the Rolls and Vos LJ in Denton, a judge should address an application for relief from sanction in three stages, as follows:
i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As stated in para. [35] of the judgment in Denton:
"Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it …."
99. I note that on 15th October 2025 the UT lawyer refused an application by SA to adjourn the hearing stating inter alia
‘the direction for the Respondent [SA]to reply was consequential upon a skeleton argument being provided by the Appellant, the Respondent is no longer under an obligation to reply. The Respondent may of course still provide a skeleton argument if they see fit’.
100. On 23rd October 2025 an application for an extension of time to admit the skeleton argument from the Secretary of State was made and an explanation provided that owing to the complexity and history (the matter had been referred to the Court of Appeal) a ‘multiple policy stakeholders’ meeting’ was required in order to clarify instructions and thereafter the counsel engaged was involved herself in complex litigation.
101. The legal representatives on 23rd October 2025 were given notice and objected to the admission of the skeleton argument in reply stating that there were only 3 working days to consider the matter. No mention was made of the unavailability of counsel merely that they had contacted the Secretary of State on several occasions to request the skeleton argument.
102. The direction sent out at short notice by the UT on 24th October 2025 stated as follows
‘It would appear that both directions [5] and [6] of UTJ Mandalia in his order of 4th August 2025, as to the deadline for the service of skeleton arguments, referred to the respondent. Although there was correspondence from [SA’s] representatives, direction [6] was not formally clarified/amended.
In this application the appellant is the Secretary of State. For the sake of clarity moving forward and in correspondence the appellant will be referred to as the Secretary of State.
Both parties now appear to have filed their skeleton arguments and those have evidently been served. Although I have considered the various submissions made, the representatives of Mr SA, who are experienced, have ample time to consider the Secretary of State’s short skeleton argument and vice versa and both skeleton arguments, in the interests of justice are admitted.
In the light of the overriding objective the hearing for 29th October 2025 will proceed. In is in neither of the parties’ interests to delay further and adjourn the hearing.’
103. First, I do not accept that the judge hearing the matter should be bound by the UT lawyer’s direction. Further, the direction of the UT lawyer was such that default may mean that the party may no longer rely on any skeleton arguments. Each case is fact specific.
104. It was clear that the first stage referred to in SS (Congo) was identified in the order of 24th October 2025. There was no indication from SA's representatives that counsel was absent. It was noted that the skeleton argument was brief and on reflection was clearly a response to the arguments of counsel for SA. The overall circumstances were considered.
105. The relevant submissions in reply from the Secretary of State comprised in fact two pages of double spaced A4 pages consisting in essence of 4 paragraphs (the rest of the 10 page document related to history and the Court of Appeal). Nothing in those submissions was revelatory nor to my mind novel or anything which counsel, who had had conduct of the matter from the outset, could not address in oral submissions. The critical issue in this matter was further delay and indeed the issue of avoidance of further delay was raised in the submissions by both parties at the hearing before me to support the contention that I should remake the decision in the Upper Tribunal on the same day as the error of law.
106. Mr Slatter is experienced counsel, had had conduct of the matter from since the appeal before the FtT and was listed as appearing for the appellant. At the hearing itself, he did not submit that he could not proceed rather the reverse and there was no renewal of any application for an adjournment in the light of any new issues (of which there were none). Counsel had adequate opportunity to fulfil his role and make oral submissions on the respondent’s skeleton argument at the hearing.
107. It was clear that in the direction on 24th October 2025 indicated that the decision to proceed with the hearing was made in the light of rule 2 of the UT Rules ‘the overriding objective’. These state the following
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Upper Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
108. In assessing whether the SSHD acted unreasonably I have also considered the decisions of Ridehalgh v Horsefield [1994] Ch 205, Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC), and Thapa & Ors (costs: general principles; s 9 review) [2018] UKUT 00054 (IAC). I have additionally had regard to the Presidential Guidance Note No 2 of 2018 on wasted costs and unreasonable costs. I note that the basic test is whether there is a reasonable explanation for the conduct under scrutiny.
109. The grounds contend that the SSHD acted unreasonably. The conduct that was under consideration was the failure of the Secretary of State to provide a response to the skeleton argument which put the appellant’s representatives to excess costs.
110. SA's representatives had prior to the appeal contended that should the Secretary of State’s skeleton argument be admitted then an adjournment would need to be granted. I rejected that argument on the basis that can be gleaned from my order of 24th October 2025. The Secretary of State has explained that she required a stakeholder meeting; I accept that this is most unfortunate and that failure to comply with directions should be discouraged but there was the backdrop of the Court of Appeal proceedings; the Secretary of State provided in my view a reasonable explanation for the delay and I am not persuaded that any costs were incurred which might not otherwise have been. Correspondence with the opposing party is routine and no formal drafting was required for the reply.
111. In the circumstances I decline to make a costs order.

Notice of Decision
I dismiss the appeal on human rights grounds.
I make no order for costs.

Helen Rimington
Upper Tribunal Judge Rimington
Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th January 2026