Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002237

First-tier Tribunal No: HU/52151/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
UPPER TRIBUNAL JUDGE LODATO

Between

KIREN FRANCIS
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms Watterson, counsel instructed by Joseph Thaliyan Solicitors
For the Respondent: Mr Tan, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 27 January 2025

DECISION AND REASONS

Introduction

1. Following the resumed hearing of this appeal on 27 January 2025, we now remake the decision and provide our reasons. The background to the appeal is set out in the error of law decision of Upper Tribunal Judge Bruce, dated 28 October 2024. In short, the appellant, an Indian citizen, appeals against the decision of the respondent, dated 3 January 2023, refusing his application for entry clearance to join his Indian wife and their infant son who both reside in the UK. The Upper Tribunal, at the error of law hearing, found that the First-tier Tribunal, which had dismissed the appellant’s appeal, had erred in law because it adopted a legally flawed approach to the best interests of the child in balancing the competing factors in a proportionality balancing exercise. The decision was set aside. This remaking decision should be read in conjunction with the error of law decision which sets out the broad factual background.
Legal Framework

2. Article 8 of the ECHR provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
3. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society.

4. S.117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.

5. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue. In the present matter, the parties agreed that it was only the final question which was in issue, whether the refusal decision was a disproportionate interference with the engaged Article 8 rights. It is well-settled in this jurisdiction that the assessment of proportionality is best undertaken by adopting a balancing exercise which takes into account the factors weighing in favour of the appellant’s and their family’s personal interests against the public interest in maintaining effective immigration controls.

8. If the fifth question relating to proportionality is reached, Lord Bingham, in his judgment in Huang v SSHD [2007] 2 AC 167 at paragraph 20, provided further guidance as to how this should be assessed:
[…] 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. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.
9. In CAO v SSHD [2024] UKSC 32, the Supreme Court recently considered how tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment:
[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.
The Remaking Hearing

10. At the remaking hearing, the appellant did not rely on any oral evidence. A further witness statement, dated 23 January 2025, was provided from the sponsor in which she described feeling anxious at the potential outcome of the hearing and that she did not have the strength to give evidence. The absence of the sponsor’s UK-based family members, who provided witness statements in support of the appeal, went unexplained. We heard submissions on behalf of both parties. We address any submissions of significance in the Findings and Reasons section below.
Issues in Dispute and Summary of Key Evidence

11. The parties agreed that the only issue to be resolved in remaking the appeal was whether the refusal to grant entry clearance amounted to a disproportionate interference with the appellant’s, and his family’s, Article 8 rights to a family life. The error of law decision of Upper Tribunal Judge Bruce further clarified, at [15] of the decision, that the assessment of the best interests of the couple’s child fell to be considered in the context of the proportionality assessment in the following way:
The parties should regard the following matters as settled:
i. There is a presumption that it is in AF’s best interests that he be brought up by both parents;
ii. Ms Manuel intends to remain in the UK with AF;
iii. The decision to refuse entry clearance in these circumstances is one capable of engaging Article 8 as it demonstrates a lack of respect for this family life;
12. In addition to the broad factual background which underpins the appeal, it is necessary to address parts of the procedural background relating to the sponsor.
13. In a decision promulgated on 15 September 2017, Upper Tribunal Judge Lane, found that a decision dismissing the sponsor and her sister’s appeals on Article 8 grounds involved an error of law. The appeal was remade in the Upper Tribunal in a decision promulgated on 3 May 2018. In allowing the appeal on Article 8 human rights grounds, Judge Lane reached the following findings between [6] and [9]:
The effect of finding that there is family life is that, as Miss Watterson submitted, the focus of the Tribunal’s analysis shifts to proportionality. There exists a family life capable of protection under the ECHR in the United Kingdom and the question that the Tribunal needs to address is whether the breaking up of that family by the removal of these appellants from the family unit to India would, in all the circumstances, be proportionate. I am aware of the long residence of the appellants. They have been continuously in the United Kingdom for eleven years; KP will have spent one half of her life in this country by July 2018. I am aware that the appellants appear to be integrated into United Kingdom society but I attach relatively little weight to that observation as I do to my finding that they are both hardworking and of good character. I do accept, however, that the family life which they enjoy in the United Kingdom is, as Miss Watterson characterised it, both ”practical and financial". They receive and give emotional support to family members here whilst they receive financial support directly from the family. I have also taken into account the past history of mental health problems of both appellants. Whilst I am aware that both appellants have been discharged from hospital care, there is unchallenged psychological evidence which indicates that they have both attempted suicide in the past and that it has, comparatively recently, been necessary for them to be sectioned under the Mental Health Act. I note also that the periods of sectioning were relatively lengthy. There is no suggestion that their respective mental health conditions are likely to become to engage Article 3 ECHR. Having said that, I am aware from the evidence and accept it as accurate, that the mental health problems have, to a large extent, arisen from a fear of being separated from family in the United Kingdom. That observation, in turn, leads me to find that both these young women remain significantly vulnerable notwithstanding that they are now adults. I accept in consequence that they are, perhaps, less independent than their peers although I note that both wish to leave the family home in order to study at university.
[…]
I accept also that neither appellant has returned to India since they arrived in the United Kingdom and that they have limited contact with their maternal grandparents still living there. I accept that both appellants would, on account of their mental health history and given the limited assistance which could be provided by elderly grandparents, be vulnerable within wider Indian society. I accept that, despite their happy recent recovery, the mental health of both appellants is likely to deteriorate should they return to India and lose the close emotional assistance and financial support of their United Kingdom family. I accept also that whilst the appellants are overstayers, they became overstayers whilst they were children when they had no personal autonomy. It is clear that, having become adults, both appellants have attempted to regularise their status. They have been engaged in extensive litigation including two judicial reviews which were settled on the basis that the Secretary of State agreed to reconsider her decisions.
I accept also Miss Watterson’s submission that the failure of these appellants to meet the requirements of the Immigration Rules is, given the particular circumstances of this case, of limited relevance. Appendix FM-SE does not deal with the family life of single adults without children; the closest the HC 395 (as amended) comes to addressing the circumstances of the present appellants is via the private life provisions of paragraph 276ADE. As Miss Watterson submits, that paragraph 18 more concerned with circumstances in India rather than those left behind in the United Kingdom. I have been impressed by the evidence which I have read and heard from SP regarding the close-knit nature of the family which has provided support to these two vulnerable young women after they became seriously unwell. I am fully aware that the public interest as expressed in HC 395 requires the removal of childless adults who have no right to remain in the country. However, the circumstances of these appellants are significantly unusual. They enjoy family life with their mother and brother and have manifested a vulnerability which I find is likely to be severely exacerbated if they were removed from that family bond. I find, therefore, that, whilst having proper regard to the public interest concerned with their removal, the unusual circumstances of these appellants leads me to find that their appeals should both be allowed on Article 8 ECHR grounds.
[Underlining added]
14. Subsequent to her appeal being allowed in 2018, the sponsor has been the beneficiary of a sequence of grants of leave to remain on private life grounds. She has now been residing in the UK with lawful leave for a period of approximately six and a half years and is roughly two thirds of the way to reaching 10 years of lawful residence which would enable her to seek settlement. The most recent grant of leave to remain was issued on 7 March 2024. At our request, Mr Tan helpfully obtained clarification of the basis on which the decision-maker granted leave and agreed for it to be formally disclosed in the proceedings. The caseworker who took the March 2024 decision responded to Mr Tan’s request in the following terms:
good morning , it was 5.1B with the following notes

I have taken into consideration what the Immigration judge has said in the previous application and what the applicant has stated for this application i.e rejection of this application would turn her life upside down and may have the mental health problems again. She has stated she left India at a very young age and does not know the culture and life in India.

Her circumstance has not changed and still lives with her Mother and is dependent on them to help support and look after her child as such there are still significant obstacles for re-integration into the country she would be returning to.

15. It was common ground between the parties that the reference to “5.1B” at the start of the message related to paragraph 5.1(b) of Appendix Private Life of the Immigration Rules which provides as follows:
where the applicant has not been continuously resident in the UK for more than 20 years, the decision maker must be satisfied there would be very significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK.
Findings and Reasons
16. As signalled in the error of law decision, it is manifestly not in the best interests of the appellant and his sponsor’s 2-year-old child to live in a different country to his father. It is well-established, and needs no authority, that children are best placed to thrive and develop when under the care of both parents when they are in a subsisting relationship. The bonds forged between a child and their parents at the beginning of that child’s life shape the people they become. This is when children begin to understand the world around them through the prism of their nuclear family. The immediate family structure is the bedrock of an infant child’s early development and social growth.
17. Seen against this uncontroversial backdrop, we reiterate the settled matters identified in the error of law decision that on no sensible analysis could it be said that this child’s best interests would be served by any other arrangement than living in a shared home with both of his parents. However, an important additional consideration in the assessment of proportionality is where this family can be reasonably expected to live. At face value, it might be thought that family life between two Indian national parents and their child, who appears to be entitled to Indian citizenship, should be enjoyed in India rather than the UK, where it is only the sponsor who has any lawful leave to remain, albeit on a limited basis. The soonest point in time when he could have any expectation of sharing a home with his father in the UK in accordance with the rigorous application of the Immigration Rules would not be for at least another three years.
18. In asking ourselves whether this family can reasonably enjoy a shared family life in India, it is necessary to look beyond the best interests of the child and consider whether his mother is able to make such a move. If there are very significant obstacles to her reintegration in India, this would weigh heavily in the proportionality balancing exercise because it would naturally raise the Huang question of whether this family can reasonably live anywhere but the UK. The procedural background summarised above provides a strong foundation for the conclusion that the sponsor would indeed face such obstacles. In his 2018 remaking decision, Upper Tribunal Judge Lane found that the appellants in those proceedings (which included the sponsor in the present proceedings) suffered a serious mental health collapse which resulted in a lengthy period under section. This was one of a range of factors which underpinned the conclusion that she would be vulnerable on return to India. While this decision is now of some age, and much has unfolded in the intervening years, it is worthy of note that this was the catalyst for the respondent to grant the sponsor a series of positive leave decisions founded on her private life. The most recent decision was less than a year ago at a time when the appellant was already married to the appellant, and long after his application for entry clearance had been refused. While there is no express reference to him in the decision to grant her a further period of leave to remain, according to the email disclosed during the remaking hearing, the decision-maker plainly had regard to their child. The reference to paragraph 5.1(b) was accepted to be shorthand for the threshold of very significant obstacles to integration.
19. Mr Tan argued that the decision-maker would not necessarily have come to the same conclusion had they been aware of some of the adverse findings of fact in the decision of First-tier Tribunal Judge Power, which was set aside in the error of law decision, or the obvious fact that she now has a husband and his family structure available to her in India to assist her to integrate. We are satisfied that it would be an exercise in speculation to attempt to guess at what decision might have been made if these factors had been expressly considered in the decision. The only factors we can safely rely upon are those which the decision-maker has indicated were considered. The decision which was reached in March 2024, and which remains in place, undoubtedly drew upon a broad evaluative judgement of the sponsor’s overall circumstances including the caring arrangements for her young child. We find it to be an inferential leap too far to speculate that a different decision might have been reached if other factors were expressly considered. The respondent cannot disavow a relatively recent decision founded on the proposition that the sponsor would face very significant obstacles to integration on return to India. We are therefore satisfied that it is appropriate to assess not only the child’s best interests, but also the existence of unjustifiably harsh consequences on the footing that a rigorous application of the Immigration Rules will have the inevitable result that the sponsor and her son will have no reasonable option but to live in the UK separated from the appellant.
20. The findings we have reached above raise the ‘real-world’ prospect that the refusal of entry clearance will cause the appellant’s 2-year-old son to live in the UK without his father until he is at least 6-years-old when his mother can first apply for settlement under the 10-year private life route of the Immigration Rules. The only realistic alternative to this arrangement would be if the child moves to India to reside with his father but this would have the inevitable outcome that he would then be separated from his mother who has been his primary carer since he was born. We are satisfied that such a separation from either of the child’s parents is demonstrably and significantly against his best interests. Furthermore, we are satisfied that such a separation equally meets the high threshold of unjustifiably harsh consequences so as to raise exceptional circumstances rendering the refusal of entry clearance a disproportionate interference with Article 8 family life rights. While we recognise that the invidious position this family is in flows from the decisions made by the appellant and the sponsor when they could have had no reasonable expectation that he could live with her in the UK, we must also keep in mind that the child is not to be held responsible for these decisions. To maintain a refusal decision which has the effect of keeping a young child separated from one of his parents for at least the first 6 years of his life is a sufficiently extreme and damaging prospect for this child that we must conclude that this alone causes the refusal decision to bring about unjustifiably harsh consequences.
21. If we are wrong that the likely separation of the child from his father amounts to unjustifiably harsh consequences, it remains a powerful and weighty factor on the appellant’s side of the balance which falls to be fairly struck.
22. In assessing the weight to be attached to the public interest side of the scales, we consider the matters set out in s.117B of the 2002 Act. The maintenance of effective immigration controls is in the public interest and is undoubtedly reflected in the application of the Immigration Rules. It is beyond argument that the appellant cannot meet the requirements of Appendix FM to join his wife because she does not have the required settled immigration status. However, this dimension of the public interest is not fixed and falls to be assessed against the particular circumstances of the case. If there is a spectrum of those without settled status, the sponsor cannot be said to be at the lowest end such as someone in the UK unlawfully without any expectation of acquiring indefinite leave to remain. Instead, she falls at the other end in that she is far along the path towards settlement having acquired approximately two thirds of the lawful period of stay she needs to apply for settlement.
23. In the skeleton argument prepared in advance of the remaking hearing, the respondent sought to characterise the appellant’s case as being akin to a ‘near-miss’ argument. We accept Ms Watterson’s responsive submission that the appeal is more nuanced than that. One of her central arguments was built upon the foundation laid by the Court of Appeal in GM (Sri Lanka) [2019] EWCA Civ 1630 where the following observation was made at [34]:
a person who could be said to be on a pathway to settled status might, in relative terms, be in a stronger position than one with DLR who was not on such a pathway and this relative position needs at least to be taken into account in the proportionality, fair balance, assessment.
24. Notwithstanding that this is not a ‘near-miss’ case, the maintenance of effective immigration controls is in the public interest and this is undoubtedly the strongest factor in favour of maintaining the refusal of entry clearance.
25. The respondent did not seek to rely upon the remaining public interest considerations in s.117B.
26. When we weigh in the balance the powerful factors summarised above in respect of the best interests of the child we are left in no doubt that they considerably outweigh the public interest in the maintenance of effective immigration controls in a case where that part of the public interest is necessarily attenuated by the progress the sponsor has made along the route to settlement.
27. We find that the refusal of entry clearance is a disproportionate interference with the Article 8 rights of this family to share a family life in the UK, the only country where their family life can reasonably and realistically be enjoyed.
Notice of Decision

On remaking the appeal after setting aside the decision of the First-tier Tribunal, we allow the appeal on Article 8 human rights grounds.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2025