Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-002299
First-tier Tribunal No: HU/58363/2022
LH/01432/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 March 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

ALI KHAN
(ANONYMITY ORDER NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr B Bedford of Counsel (error of law) and Mr B Malik of Counsel (remaking), instructed by TMF Immigration Lawyers
For the Respondent: Ms S Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 17 October and 19 December 2025

DECISION AND REASONS
1. The appellant appeals against a decision of the First-tier Tribunal dated 11 April 2024, dismissing his appeal against the respondent’s refusal of his application for entry clearance under paragraph 297 of the Immigration Rules. The First-tier Tribunal Judge (the judge) proceeded in the absence of the appellant and his representative.
2. Permission to appeal was refused by the First-tier Tribunal, but given on renewal to the Upper Tribunal. The grounds assert that the judge acted procedurally unfairly in proceeding in the appellant’s absence and in permitting the respondent to rely on a refusal decision about which he was unaware (dated 3 October 2023).
Error of Law
3. Mr Bedford had usefully prepared a skeleton argument dealing with the fairness of proceeding in the absence of a party in particular when the failure to attend was the admitted fault of the party’s representative. Ms Simbi conceded that the judge had erred in that regard. I consider that a concession well made for the following reasons.
The Relevant Rules
4. Rule 2 of the First-tier Tribunal Procedure Rules 2014 provides in particular that:
“(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with the 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 and of the Tribunal;
(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 Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.”
5. Rule 28 (‘Hearing in a party’s absence’) provides:
“If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.”
The Law
6. The question of whether or not to proceed in a party’s absence is closely connected to the question of whether or not to adjourn a hearing (albeit that the judge considering the former is not always assisted with a properly formulated application for the latter). The principles to be applied in considering adjournment applications are set out in Nwaigwe (ECO – failure to adjourn – fairness) [2014] UKUT 418 (IAC) at [4]-[8] by the then President of the Upper Tribunal (Immigration and Asylum Chamber), McCloskey J:
‘4. Rule 19 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the “2005 Rules”), under the rubric “Hearing Appeal in Absence of a Party”, provides:
“(1) The Tribunal may hear an appeal in the absence of a party or his representative, if satisfied that –
i. the party or his representative has been given notice of the date, time and place of the hearing, and
ii. there is no good reason for such absence.”
This must be considered in conjunction with Rule 21, which states:
“(1) Where a party applies for an adjournment of a hearing of an appeal, he must –
(a) if practicable, notify all other parties of the application;
(b) show good reason why an adjournment is necessary; and
(c) provide evidence of any fact or matter relied upon in support of the application.
(2) The Tribunal must not adjourn a hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined.”
Each of these provisions of the Rules must be construed and applied by reference to the overriding objective enshrined in Rule 4, which provides:
“The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest.”
This is the provision of the 2005 Rules to which the FtT was, evidently, referring in [4] of its determination.
5. In the Rules matrix outlined above, rule 21(2) is a provision of critical importance. Its effect is that where a party applies for an adjournment of a hearing, the Tribunal is obliged, in every case, to consider whether the appeal can be “justly determined” in the moving party’s absence. If the decision is to refuse the application, this must be based on the Tribunal satisfying itself that the appeal can be justly determined in the absence of the party concerned. This means that, in principle, there may be cases where an adjournment should be ordered notwithstanding that the moving party has failed to demonstrate good reason for this course. As a general rule, good reason will have to be demonstrated in order to secure an adjournment. There are strong practical and case management reasons for this, particularly in the contemporary litigation culture with its emphasis on efficiency and expedition. However, these considerations, unquestionably important though they are, must be tempered and applied with the recognition that a fundamental common law right, namely the right of every litigant to a fair hearing, is engaged. In any case where a question of possible adjournment arises, this is the dominant consideration. It is also important to recognise that the relevant provisions of the 2005 Rules, rehearsed above, do not modify or dilute, and are the handmaidens, their master, and the common law right in play.
6. Viewed through this prism, rule 21(2) is to be considered as reflecting the common law right engaged. In every case, the Tribunal must have careful regard to rule 21(2). This provision of the Rules expresses the common law right of every party to a fair hearing. In considering rule 21(1)(b) in tandem with rule 21(2), together with the right to a fair hearing of the party or parties concerned, a balancing exercise must be conducted. In performing this task, tribunals should be alert to the doctrine of abuse of process. In cases where the Tribunal considers that an adjournment application is based on spurious or frivolous grounds or is vexatious, the requirement of demonstrating good reason will not be satisfied. However, this will not be determinative of the question of whether refusing an adjournment request would compromise the right to a fair hearing of the party concerned. In some cases, adjournment applications based on particularly trivial or unmeritorious grounds may give rise to an assessment that the process of the Tribunal is being misused and will result in a refusal. Tribunals should be very slow to conclude that the party concerned has waived its right to a fair hearing or any discrete aspect thereof. Where any suggestion of this kind arises, it will be preferable to evaluate the conduct of the party concerned through the lens of abuse of process and it will always be necessary to give effect to both parties’ right to a fair hearing.
7. If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? Any temptation to review the conduct and decision of the FtT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell, fairness is the supreme criterion.
8. The cardinal rule rehearsed above is expressed in uncompromising language in the decision of the Court of Appeal in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, at [13]:
“First, when considering whether the immigration Judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair”.
[My emphasis]
Alertness to this test by Tribunals at both tiers will serve to prevent judicial error. Regrettably, in the real and imperfect world of contemporary litigation, the question of adjourning a case not infrequently arises on the date of hearing, at the doors of the court. I am conscious, of course, that in the typical case the Judge will have invested much time and effort in preparation, is understandably anxious to complete the day’s list of cases for hearing and may well feel frustrated by the (usually) unexpected advent of an adjournment request. Both the FtT and the Upper Tribunal have demanding workloads. Parties and stakeholders have expectations, typically elevated and sometimes unrealistic, relating to the throughput and output of cases in the system. In the present era, the spotlight on the judiciary is more acute than ever before. Moreover, Tribunals must consistently give effect to the overriding objective. Notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties’ right to a fair hearing. In determining applications for adjournments, Judges will also be guided by focussing on the overarching criterion enshrined in the overriding objective, which is that of fairness.’
7. Although considering the application of the Asylum and Immigration Tribunal (Procedure) Rules 2005, McCloskey J, made clear at [9] that those principles applied equally to the then soon to be introduced 2014 Rules
8. Of course, one matter firmly on the mind of any judge deciding whether to adjourn a hearing and/or to proceed in a party’s absence is the reason why the decision has to be made, which in turn will beg the question as to who, if anyone, is at fault for the party’s non-attendance. However, there is no universal surrogacy principle: a party is not imputed with the procedural errors of their representative.
9. That issue was considered by the Court of Appeal in the context of proceedings in the Asylum and Immigration Tribunal in FP (Iran) v SSHD [2007] EWCA Civ 13, [2007] Imm AR 450, at [38]-[46] (per Sedley LJ):
‘38. What then is the position when there has been an admitted failure to notify the AIT of a party’s new address, and the failure is that of a representative on whom the party has relied to do what is required?
39. The first answer appears to be that rule 56(1) anyway requires both of them to give notice: it uses the word “and”. The pointlessness of such a requirement is shown, however, by rule 56(2) which bases the provision for deemed service on the latest address given to the AIT by the party or his or her representative. It is reasonable to infer that, for the purposes of rule 56(1), either that “and” means “or” or that notice given by the representative is notice given by the party.
40. The second answer, however, is that the effect of rule 56(1) and (2) in combination is that the representative’s error is fatal to the client, not because the client is fixed with it in legal principle but simply because the AIT has no notice of the new address from either source and will therefore effect what is deemed to be good service at what is in reality the wrong address.
41. Is this fair? The question is not, of course, decisive of the issue of vires (I will come shortly to the law on this) but it is a necessary first step. It is here that the surrogacy principle becomes material. If it is, as Ms Chan submits it is, a general principle of law subject at most to limited and specific exceptions, it will be difficult to say that rules which adopt or reflect it are unfair. If it is, as Mr Drabble submits it is, a working rule designed to transfer the liability from the defendant to the representative whose negligence has let the defendant escape, there will be good reason to ask whether it is fair to let it bring about the irretrievable and incompensable loss of a right to be heard in support or in defence of a claim to asylum.
42. In a well-known passage of his speech in Al Mehdawi v Home Secretary [1990] 1 AC 876, Lord Bridge said (at 898):
It has traditionally been thought that a Tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae. But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of prosecution and claims which are not made within a fixed time limit which the Tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor’s neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment which, if he is personally blameless, should be granted as a matter of course.
These considerations lead me to the conclusions that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been a victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle that can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.
43. The result in Al Mehdawi was that a foreign student whose leave to remain had expired forfeited his entitlement to an appeal hearing because of his solicitors’ errors. Not only did the case not concern the possibility of returning somebody to persecution, torture or death; it left to the Home Secretary, if he thought the application had merit, a power to invite an adjudicator to hear the applicant’s evidence and report whether in his opinion it would have made a difference to the decision: see p.901. Although Lord Bridge’s opinion is carefully framed in terms of principle and not of pragmatism, the case before the House was far distant from the kind of case we are concerned with. These cases do not only involve asylum-seekers who are either making a first appeal or have lost their first appeal and are making a second endeavour to establish their claim: they include asylum-seekers who have won their initial appeal before an immigration judge and are seeking to hold the decision against the Home Secretary’s appeal. For some of these, the exercise of the right to be heard may literally be a matter of life and death; for all of them save the bogus (and even they have to be identified by a judicially made decision) it is in a different league from the loss of a student’s right to remain here. The remedial discretion which afforded Mr Al Mehdawi a fallback is absent from asylum law.
44. It is unsurprising therefore that the surrogacy principle has not been uniformly adopted or applied by the courts. The appeal to this court in Haile v IAT [2001] EWCA Civ 663 was based on fresh evidence which could have been obtained much sooner had the appellant’s solicitors exercised reasonable diligence at first instance. Mr Haile was an Ethiopian seeking asylum from political persecution. Simon Brown LJ said:
25. ….It is of course most unfortunate that this mistake was not uncovered until it was when and plainly it could and should have been. Were the old Ladd v Marshall principles to be strictly applied, then surely the appellant would fall at this first hurdle. The fact is however that these principles never did apply strictly in public law and judicial review. As Sir John Donaldson MR said in R v Secretary of State for the Home Department ex parte Ali [1984] 1 WLR 663, 673:
“… the decision in Ladd v Marshall [1954] 1 WLR 1489 has no such place in that context,”
although he then added:
(a) “ However, I think that the principles that underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require.”
26. Nor am I persuaded that the House of Lords’ decision in Al-Mehdawi precludes this court having regard to the wider interests of justice here, not least given that this is an asylum case rather than a student leave case as was Al-Mehdawi. Aspects of that decision may in any event now need to be reconsidered in the light of the House of Lords’ speeches in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330.
45. It has not been suggested that we have to choose between Al Mehdawi and the CICB case. Rather Mr Drabble submits that Haile is authority in this court for the proposition that Al Mehdawi does not, or does not necessarily, govern asylum cases, and that the CICB case may help to explain why. This seems to me to be correct. It is supported by the decision of this court in R v IAT ex parte Mehta [1976] Imm AR 38 (a student case), where Lord Denning MR, holding that a solicitor’s mistake might amount to special circumstances for enlarging time, said:
We never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal….All the more so … where [the appellant] would have no remedy against her solicitor for any negligence. If she is out of time for appeal, she will be removed from this country, and it would be of no consolation to her to say that she has a remedy against her solicitor.
This decision was followed in R (Tofik) v IAT [2003] EWCA Civ 1138 (an asylum case) where, at §24-5, with the agreement of the other members of the court, I said:
The law has historically regarded client and solicitor as one, at least to the extent that the latter acts as agent for the former. But … a client is not necessarily fixed with her or his solicitors’ errors in seeking to oppose removal from the United Kingdom, at least when the client has been in no way responsible for them.
46. Accordingly I would hold, contrary to Ms Chan’s submission, that there is no general principle of law which fixes a party with the procedural errors of his or her representative. The materiality of this is not that it renders the 2005 Procedure Rules or any part of them ultra vires, since they are not predicated on a contrary assumption: it is that there is no universal surrogacy principle which the rules would have to depart from in order to operate justly.
10. The requirement in rule 28(b) that a judge deciding whether to proceed in the absence of a party who has failed to attend a hearing considers whether ‘it is in the interests of justice to proceed with the hearing’ permits the flexibility urged in FP.
11. Applying the authorities above in practice, in order to proceed when there has been no attendance by or on behalf of a party:
(a) The judge must personally be satisfied that both legs of rule 28 are met: notice of the hearing must have been given to the absent party or reasonable steps taken to do so, and it must be in the interests of justice to proceed in absence.
(b) Reasonable enquiries must be made into the steps taken to give notice of the hearing to the absent party. The extent of those enquiries will likely be informed by the procedural history, and the minimum should be checking the relevant case management record for evidence of notice being sent to the party (or representative, if applicable) via the means (be it SMS, email or postal address) given for them.
(c) Little more is likely to be necessary where there has been little if any engagement with the Tribunal. Conversely, where the party has an established history of engagement with the appeal, reasonable enquiries are likely to include contacting the party and/or representative (if applicable) if the means to do so are available on the relevant case management record, to confirm whether they were aware of the hearing and if there is a reason for their absence.
(d) It should not be assumed that a represented party is aware of the hearing merely because there is evidence that notice was given to their representative.
(e) The fact that notice was given to the absent party’s representative will be relevant to the question of whether it is in the interests of justice to proceed in absence. However, it is not determinative; there is no universal surrogacy principle in the IAC.
(f) Inevitably, personal culpability on the part of the absent individual will be of considerably greater significance.
(g) The ultimate question is always whether proceeding in absence (or not) would, in all the circumstances, be fair to the parties.
The Instant Case
12. The instant case was a ‘reform’ appeal, submitted online via the MyHMCTS portal. The appellant was represented by Farani Taylor Solicitors at the time of its submission on 7 November 2022, and those representatives did not at any material time give notice that they were no longer acting for the appellant. They uploaded an appeal skeleton argument on 3 November 2023 and a bundle of documents on 22 November 2023. A combined bundle was generated by the reformed case management system (known colloquially as ‘CCD’) on 3 April 2024. The judge notes at [7] having that bundle before him.
13. The representatives provided the appellant’s hearing requirements on 18 March 2024. They confirmed that there would be only one witness, Muhammad Zahid (the appellant’s father and sponsor), that no interpreter was required and that there were no dates to avoid when listing the appeal. The hearing was listed that same day for 10 April 2024 at 10am. Whilst CCD permits the uploading of contact information for an appellant and their sponsor, notification of case events (including notices of hearings) are sent by email only and then only to the representative on record. That was the reformed procedure at the time although I understand that separate notification are now sent to the appellant and/or sponsor where an email address is provided on MyHMCTS.
14. The judge’s consideration of the appellant’s failure to attend the hearing is set out at [10] (my emphasis):
‘10. The Appellant did not provide any witness or representative for the hearing. The case was called on at 12.30, giving the sponsor all morning to reach the Court. There was every reason to suppose that the Appellant was on notice and that he was unrepresented. I decided that there was no good reason to adjourn and I proceeded with the hearing, having regard to relevant case law and the relevant Procedure Rules.’
15. Whilst the judge can be taken from that paragraph to have directed himself to rules 2 and 28 of the 2014 Procedure Rules, the emboldened passage is troublesome for a number of reasons. First, it suggests that the judge did not check for himself how the appellant would himself have been notified of the hearing. Had he done so, he would have been aware that notification would have to have been passed on by the representatives.
16. Second, there was no reason at all to suppose that the appellant was unrepresented. Indeed, that was incorrect as an easily discernible matter of uncontroversial fact.
17. Third, it can be inferred that the judge made no effort to have his clerk contact the representatives to see if there was any explanation for their failure to attend, even in the absence of the appellant’s witness. Had he done so, the facts as now known would likely have been discovered: that neither the solicitor with conduct of the case nor the appellant and sponsor had been informed of the hearing.
18. Finally, there is no clear consideration of the interests of justice in proceeding without the appellant’s participation (in this case, in the absence of his representative and sponsor). Whilst the representative’s explanation leaves a lot to be desired, even now, what is clear is that the failure to attend was not that of the appellant personally (nor of his sponsor). Furthermore, the appellant was no longer a child and so it was no longer open to him to make a similar application (as the First-tier Tribunal Judge refusing the appellant’s application for the decision to be set aside appeared to think).
19. In the circumstances, I am satisfied that the judge acted procedurally unfairly and as such erred in law. In the circumstances, I would ordinarily have remitted the appeal to be heard afresh in the First-tier Tribunal (applying the principles in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)). However, Mr Bedford’s instructions were to ask that the matter be retained and remade in the Upper Tribunal. There was no objection from Ms Simbi, and so I gave directions for the matter to come back before me on the first available date with permission for up-to-date evidence, in particular regarding the successful appeal of the appellant’s older sister (whose circumstances it was to be argued were factually near identical to the appellant’s).
20. Given the respondent’s concession, I announced my error of law decision and my agreement to retaining the matter in the Upper Tribunal for remaking at the end of that hearing. I indicated that the final decision would include full written reasons for accepting that the First-tier Tribunal decision involved the making of an error on a point of law.
Remaking
21. At the hearing to remake the decision, I was provided with a decision of First-tier Tribunal Judge Phull dated 2 May 2019. Of course, I also had the benefit of all of the documents before the First-tier Tribunal.
22. Mr Malik confirmed that his principal argument was that appellant’s father, Mr Zahid, had sole responsibility for his upbringing. He did not resile from the position that refusal would in any event be disproportionate; however, he would not be arguing that there were serious or compelling family or other considerations making the appellant’s exclusion undesirable.
23. Mr Zahid gave evidence on the basis of his written witness statement and was cross-examined. The appellant also relied on his mother’s affidavit dated 9 March 2022. The representatives each made oral submissions, in Mr Malik’s case supplementing his very helpful skeleton argument.
24. It is not in issue that Mr Zahid provides financially for his family in Pakistan, which now comprises his wife, the appellant and the appellant’s younger brother. The elder of the appellant’s sisters still lives in Pakistan but is now married and in her own household. The younger of the appellant’s sisters, Asma Khan, lives in the United Kingdom with Mr Zahid, having succeeded in her appeal before Judge Phull (about which more below).
25. It is the appellant’s case that Mr Zahid has sole responsibility for his upbringing. In addition to evidence of financial support, Mr Zahid says in his witness statement that he has maintained close contact with the appellant and is ‘fully responsible for his maintenance, schooling, clothing and all other expenses since his birth’ (paragraph 9); that he has always paid close attention to the appellant’s studies and development, and has always been advising and guiding his children in that regard, being in constant contact with the appellant’s educational institution (paragraph 10); and that his wife’s disabilities prevent her from adequately caring for the appellant and providing the necessary support for his education and overall welfare (paragraph 11). In oral evidence, Mr Zahid insisted that he made all important decisions in respect of the appellant.
26. Regarding his wife, Mr Zahid clarified that she had only been educated to 8th grade level, and so had only been in school to the age of 12/13. She had tried three times to pass the English language test for entry clearance without success. Mr Zahid’s evidence was that his wife did not see the value of education. Mr Zahid’s family had a long-standing connection with aviation, and his daughter, Asma Khan, had come to the United Kingdom to pursue aviation studies. The appellant now wanted to be study to become an air traffic controller. Unfortunately, specialist aviation courses were not available at universities in Pakistan.
27. The appellant’s mother has provided an affidavit, of which only the first page has been provided. The affidavit states that it continues on a second page. However, Mr Zahid insists that the affidavit is complete. That being the case, it says only the following about her involvement with the appellant:
‘6. That since birth my above named child was under my care and custody however he was fully financially dependent upon his father who sent him maintenance money on regular basis.
…
8. That due to my inability to pass the required English language, I could not join my husband in the UK. I am not educated and only obtained basic education and therefore could not play any effective role in my son’s education.’
28. In a decision dated 2 May 2019, Judge Phull had allowed Asma Khan’s appeal against the respondent’s refusal of her application for entry clearance under paragraph 297 of the Immigration Rules. The appellant relies on Judge Phull’s findings as relevant to his own case, saying that they are by and large relevant to the entire family dynamic and not just to Mr Zahid’s relationship with Asma. Those findings are to be found at [11]-[16]:
‘11. The evidence in this case does not suggest that the appellant's mother has abdicated responsibility for the appellant. In fact the appellant's mother and the sponsor say they are in a genuine and subsisting marriage (page 15-30, AB). The appellant's evidence is she lives with her mother and three siblings in Pakistan, and her father makes regular visits to spend time with the family.
12. I find the sponsor to be a credible witness, giving his evidence in a candid and frank manner. I accept his evidence that he visits his family regularly, as supported by the entry and exit endorsements in his passport and that he sends remittances to his wife to support the family as supported by the remittance slips (page 37-51, 91-130, AB). He was not challenged on his evidence that it was his decision to move the appellant from religious school at age 7-years to a private school. I am satisfied that he made the decision to move the appellant so she could pursue her education. He was not challenged on his evidence that his wife does not attend parents evening to talk to his daughter's teachers. I accept his evidence that it is he that calls the school and College to ask about his daughter's progress, which I find is corroborated by the letters from Sir Syed Public School, dated 23 February 2019 and Superior College for Women (undated), signed by the Principal (page 66 -67, AB). I accept the sponsor's evidence that the appellant is doing well academically and therefore he chose Sir Syed School for her; it is a good school and although it is located far from his home and he organised a taxi to drop and pick her up from school each day. His other children attend a school and college close to home.
13. I find the sponsor's evidence plausible that, as his wife is not educated the appellant looks to him for advice and guidance, to discuss her future career options, the degree course she wishes to pursue and studies in the UK because Aviation studies are not available in Pakistan. I accept his evidence that they have considered a degree in Aviation in the Midlands and he has approached Birmingham City University, Warwick University and Coventry University. He has established that it is only Coventry University that provides the course in Aviation studies and he has spoken to the faculty about his daughter studying there and shown them her academic qualifications (page 68-78, AB).
14. I accept the sponsor's evidence that he talks to the appellant by whatsapp calls. Ms Tasnim did not challenge the sponsor to explain the content of the chat records because they were in Urdu. I find at best the call history from 2017 to 2019 confirms the appellant and sponsor contact each other regularly for a chat when they are not together. 1 accept the sponsor's evidence that he has discussed with his daughter about the University courses and that she will reside with him in his accommodation and he has the funds to maintain her.
15. Evidence was also produced of the sponsor's visits to Pakistan. I find the sponsor provides a plausible explanation that he could not visit Pakistan from 2013 to 2017 because he was running a business and had staff to manage. However since June 2017 he has made four visits, of which three were made in 2018 to spend time with his children and he intends to travel again on 30 March 2019 to attend the exam ceremony for his sons.
16. I find on balance the evidence satisfies the sponsor has taken his responsibilities as a father seriously and in my judgment the evidence, oral and documentary demonstrates the level of his commitment to the appellant in her personal and academic life and the bond they share. I find on balance and accept that he makes all the main decisions for the appellant; he provides for her and has sole responsibility for her. For all these reasons 1 find on balance that the appellant satisfies the requirements of the immigration rules, paragraph 297.’
29. The essence of the appellant’s case is that his parents’ evidence is sufficient for me to conclude that Mr Zahid has sole responsibility for his upbringing. Further or alternatively, I should take as my starting point Judge Phull’s finding that Mr Zahid had sole responsibility for the appellant’s sister’s upbringing and, there being no good reason to depart from that finding, conclude that the same is true for the appellant.
The Law
Sole Responsibility
30. The question of sole responsibility was considered in TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049. As is often the case, Mr Malik addressed me solely on the AIT’s summary at [52] of how to approach the question:
52. Questions of “sole responsibility” under the immigration rules should be approached as follows:
i. Who has “responsibility” for a child’s upbringing and whether that responsibility is “sole” is a factual matter to be decided upon all the evidence.
ii. The term “responsibility” in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. “Responsibility” for a child’s upbringing may be undertaken by individuals other than a child’s parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
v. If it is said that both are not involved in the child’s upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child’s upbringing, that parent may not have sole responsibility.
vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child’s welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.
ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child’s upbringing including making all the important decisions in the child’s life. If not, responsibility is shared and so not “sole”.
31. However, the Tribunal considered existing authorities dealing with various scenarios within which the question might arise, and had to say the following about ‘two parent’ cases:
‘34. These cases are largely concerned with the issue of “sole responsibility” arising between a UK-parent and relatives who are looking after the child in the country of origin. In many of the cases, the other parent has disappeared from the child’s life totally or plays so little part as to have, in effect, abdicated any responsibility for its upbringing. What emerges is a concept of “authority” or “control” over a child’s upbringing which derives from the natural social and legal role of an individual as a parent. Whilst others may, by force of circumstances, look after a child, it may be that they are doing so only on behalf of the child’s parent. The struggle in the case law is to identify when the parent’s responsibility has been relinquished in part or whole to another such that it should be said that there is shared rather than sole responsibility. By contrast, where both parents are active in the child’s life, the involvement of the parent in the country of origin is significant – perhaps crucial - in assessing whether the parent in the UK has “sole responsibility” for the child.
Two-parents cases
35. Two decisions of the IAT demonstrate the significance of involvement by the other parent in the child’s life. In SSHD v Pusey [1972] Imm AR 240, the appellant lived with her mother in her maternal grandmother’s home until she was 4 years old. Her mother then moved out to live some 60 miles away. She continued to live with her grandmother but was in regular contact with her mother and stayed with her during school holidays for three or four weeks on each visit. The appellant’s father (the sponsor) came to the UK when the appellant was aged 5. He corresponded regularly with the appellant’s grandmother about her upbringing and sent money for her support. When 17 years of age, the appellant sought entry clearance to live with her father in the UK. The IAT accepted that as between the father and grandmother, the father had “shouldered the main responsibility” for the appellant (at pp 244-5). However, overturning an adjudicator’s decision that the appellant’s father had “sole responsibility” for her, the IAT held that the mother’s position had to be taken into account and given the “close and regular contact” with the appellant, the parents shared responsibility for the child. (at p 245)
36. The same outcome for similar reasons was reached in Eugene v ECO, Bridgetown [1975] Imm AR 111 on facts, perhaps, not as strong as Pusey. The appellant was 16 years of age. He sought entry clearance to join his father who came to the UK when the appellant was 6 months old. He did not see the appellant until he visited 12 years later. His father sent money for the appellant’s upkeep. From the time his father came to the UK, the appellant lived first with his paternal grandmother and then, when she died, with his aunt. His mother lived separately and the appellant visited her from time to time and also spent some weekends and school holidays with her. His mother maintained an interest in his welfare but she provided no financial support because of her own circumstances other than to give him pocket money. The IAT recognised that the mother had not had “such close and regular contact” as in Pusey. Nevertheless, the Tribunal held that it was “difficult not to conclude that there has ... been some sharing of responsibility for the appellant’s upbringing between his mother and father.” (at p 114)
37. The consistency of approach by the IAT in two-parents cases is illustrated by the more recent case of ECO, Accra v Otuo-Acheampong [2002] UKIAT 06687. The appellant, who was 17 years of age, sought entry clearance to join her mother in the UK. Her mother left Ghana to come to the UK when the appellant was aged 3 and was granted indefinite leave to remain when the appellant was twelve. The appellant lived with her maternal grandmother. The sponsor provided money for school fees and other expenses. In addition, it seems to have been the case that her father also provided some financial support. When returning from boarding school for holidays, the appellant stayed overnight with her father before returning to her grandmother’s house. The IAT upheld the adjudicator’s finding that the sponsor did not have sole responsibility for the appellant (at para [15]):
“The appellant’s father accompanied the appellant to the interview. That in itself demonstrates that he had not abdicated responsibility for her. On top of that, the appellant used to stay with him on her way to her grandmother from her school. Furthermore, the appellant’s father stated that he was happy for the appellant to live with him although she felt comfortable with the sponsor. The appellant’s father stated that he paid for the school fees and that her grandmother paid for household things. In addition, he gave her money whilst she was at school.”
38. (See also R (Philippines) [2003] UKIAT 00109, where the father lived in the same house as appellant and other family members (albeit on a different floor). In finding that the mother in UK did not have “sole responsibility”, the IAT took account of the fact that the father had played “some part in the household, in common with other members of the claimant’s family” (para [17]) and that the appellant was “close to his father” (para [7]).)
39. A decision of the Outer House of the Court of Session does, however, contemplate a different outcome in exceptional circumstances. In Alagon v ECO, Manilla [1993] Imm AR 336 the appellant sought entry clearance to join his mother in the UK shortly before his eighteenth birthday. His mother had come to this country when he was aged 8 and had only made one visit to see him when he was 13 years old. The appellant lived in a house with his father who was divorced from her mother. The house was owned by her mother. The mother provided most of the financial support for the appellant. Relatives who lived relatively close saw and provided some financial and other support to the appellant. The father did not contribute financially to the appellant’s support and himself benefited from living in the house and the financial contributions from the mother. The mother alone was consulted about all major decisions such as education and the appellant’s future maintenance. The father was not consulted and he took no major decisions about the appellant. It was accepted that the father played “at most a passive role” in the appellant’s life. The Lord Ordinary (Lord Prosser) acknowledged (at p 344) that it was significant that the appellant was living with her father
“since any responsibility exercised by her father need not be derived from her mother, and might put in doubt the mother’s ‘sole responsibility’.”
40. Nevertheless, the judge concluded that the appellant’s mother had indeed established “sole responsibility” for her on the basis that (at p 345):
“the adjudicator effectively found that the father is doing nothing for the child beyond the bare fact of living with her on reasonably good terms.... Moreover ... that is in a house belonging to the mother, so that even his bare presence and any help that that might be to the child, is derivative from the mother and essentially part of her arrangements for the child rather than his own.”
41. The judge concluded that that the mother (rather than the father or other relatives) was “exercising all the forms of responsibility typical of sole responsibility properly understood”. (at p 345)
42. In our view, this case is consistent with the principled approach applicable to cases of this sort. It is merely a factually unusual – indeed exceptional case – in its outcome. It turns upon the very particular findings of the judge concerning the non-involvement of the father in the child’s upbringing despite the fact that the appellant was living with him.’
32. The AIT’s detailed consideration of the principles to be applied in two parent cases is set out at [45]-[48}:
‘45. To understand the proper approach to the issue of “sole responsibility”, we begin with the situation where a child has both parents involved in its life. The starting point must be that both parents share responsibility for their child’s upbringing. This would be the position if the parents and child lived in the same country and we can see no reason in principle why it should be different if one parent has moved to the United Kingdom.
46. In order to conclude that the UK-based parent had “sole responsibility” for the child, it would be necessary to show that the parent abroad had abdicated any responsibility for the child and was merely acting at the direction of the UK-based parent and was otherwise totally uninvolved in the child’s upbringing. The possibility clearly cannot be ruled out: Alagon provides an example of this exceptional situation and turns upon an acceptance by the judge of the wholly unusual situation that the father was “doing nothing for the child beyond the bare fact of living with her on reasonably good terms”. (at p 345)
47. Our conclusion on the likely decision that responsibility is shared where a child has both parents involved in its life is, in our view, consistent with the policy relating to the admission of children for settlement underlying paragraph 297. In full, paragraph 297(i) provides as follows:
“297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; and...”
48. The purpose of paragraph 297 is clear: it is designed to maintain or effect family unity. Under sub-paragraphs (a) to (d) of paragraph 297(i), the child is accompanying his parents or a parent to live in the UK or he is seeking to join them when they are already settled in the UK. The end product is that parents and child live together in the UK; only if one parent is dead will the other be able to be in the UK alone with the child. By contrast, paragraph 297(i)(e) is concerned with settlement where one parent is in the UK and the other is abroad and will remain so. Paragraph 297(i)(e) has the potential to split up a family and separate a child from one of its parent abroad who is involved in its life. It is only the requirement of “sole responsibility” which acts as a control mechanism. It would, in our view, usually run counter to the policy of family unity to admit a child for settlement where the parent abroad is caring for the child and involved in its upbringing, unless the requirements of paragraph 297(i)(f) are met. This must be borne in mind when interpreting, and applying, the test of “sole responsibility”. The requirements of that latter sub-paragraph are onerous requiring “serious and compelling family or other considerations which make exclusion of the child undesirable”. Hence, the family will be split up only because the parent abroad has no involvement for the child’s upbringing (para 297(i)(e) applies) or, where there is involvement, because all the circumstances (including the child’s interests) require such a result (para 297(i)(f) applies).’
The Treatment of Earlier Judicial Findings
33. In the starred case of Devaseelan v SSHD [2002] UKAIT 000702, [2003] Imm AR 1, a Deputy Presidential Panel of the Immigration Appeal Tribunal set the following guidelines for judges hearing ‘second appeals’ (appeals by individuals who have been the subject of previous appeal decisions):
‘37. We consider that the proper approach lies between that advocated by Mr Lewis and that advocated by Miss Giovanetti, but considerably nearer to the latter. The first Adjudicator's determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator; but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second Adjudicator's role to consider arguments intended to undermine the first Adjudicator's determination.
38. The second Adjudicator must, however be careful to recognise that the issue before him is not the issue that was before the first Adjudicator. In particular, time has passed; and the situation at the time of the second Adjudicator's determination may be shown to be different from that which obtained previously. Appellants may want to ask the second Adjudicator to consider arguments on issues that were not - or could not be - raised before the first Adjudicator; or evidence that was not - or could not have been - presented to the first Adjudicator.
39. In our view the second Adjudicator should treat such matters in the following way.
(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
40. We now pass to matters that could have been before the first Adjudicator but were not.
4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts - for example country evidence may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
41. The final major category of case is where the Appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.
(6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
42. We offer two further comments, which are not less important than what precedes then.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare. There is an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives; sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong from which they have profited by fees). Immigration practitioners come within the supervision of the Immigration Services Commissioner under part V of the 1999 Act. He has power to register, investigate and cancel the registration of any practitioner, and solicitors and counsel are, in addition, subject to their own professional bodies. An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative's error or incompetence; and such a finding should always be reported (through arrangements made by the Chief Adjudicator) to the Immigration Services Commissioner.
Having said that, we do accept that there will be occasional cases where the circumstances of the first appeal were such that it would be right for the second Adjudicator to look at the matter as if the first determination had never been made. (We think it unlikely that the second Adjudicator would, in such a case, be able to build very meaningfully on the first Adjudicator's determination; but we emphasise that, even in such a case, the first determination stands as the determination of the first appeal.)
(8) We do not suggest that, in the foregoing, we have covered every possibility. By covering the major categories into which second appeals fall, we intend to indicate the principles for dealing with such appeals. It will be for the second Adjudicator to decide which of them is or are appropriate in any given case.’
34. The guidelines were approved, in the context of ‘second appeals’ by the same appellant in the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804, [2004] INLR 466. The court rejected the appellant’s submission, in challenging the adjudicator’s departure from earlier findings, that the guidelines were derived from the principle of estoppel. They were instead a proper exercise of the IAT’s role as a specialist body, in order to secure consistency, while respecting the ‘fundamental obligation’ of each adjudicator to decide each case on its own merits ([29]-[30]). The Court of Appeal emphasised at [40] the need for them to be applied flexibly:
‘The great value of the guidance is that it invests the decision making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator’s ability to make the findings which he conscientiously believes to be right.’
35. The guidelines have been extended, albeit with some modification, to appeals by connected parties. In Ocampo v SSHD [2006] EWCA Civ 1276, approving TK (Consideration of Prior Determinations – Directions) Georgia [2004] UKIAT 00149, the Court of Appeal said at [25] (per Auld LJ):
‘In my view, the Devaseelan guidelines are as relevant to cases like the present where the parties involved are not the same but there is a material overlap of evidence, as the Immigration Appeal Tribunal observed in TK Georgia, at paragraph 21 of their determination. Clearly, the guidance may need adaptation according to the nature of the new evidence, the circumstances in which it was given or not given in the earlier proceeding and its materiality to securing a just outcome in the second appeal along with consistency in the maintenance of firm immigration control. It should also be borne in mind, as Hooper LJ pointed out in the course of counsel’s submissions, that admission of new evidence may, as a matter of fairness, operate for, as well as against, a claimant for asylum. In immigration matters, as in other areas of public law affecting individuals, public policy interests of firmness, consistency and due process may have to be tempered with considerations of fairness in particular circumstances.’
36. Ocampo was approved AA (Somalia) v SSHD [2008] INLR 1, [2007] EWCA Civ 1040, where the following clarification was given at [69]-[70] (per Carnwath LJ):
‘[69] While I do not think it is open to us to depart from Ocampo, I would suggest two qualifications, which seem to me consistent with it. First, Auld LJ said that the guidelines are relevant to ‘cases like the present’ where the parties are not the same, but ‘there is a material overlap of evidence’. The term ‘material’ in my view requires some elaboration. It recognises I think that exceptions to the ordinary principle that factual decisions do not set precedents (see above) should be closely defined. To extend the principle to cases where there is no more than an ‘overlap of evidence’ would be too wide, and could introduce undesirable uncertainty. In all the cases in which the principle has been applied so far, including Ocampo, the claims have not merely involved overlapping evidence, but have arisen out of the same factual matrix, such as the same relationship or the same event or series of events. I would respectfully read Auld LJ’s reference to ‘cases such as the present’ as limiting the principle to such cases.
[70] Secondly, in applying the guidelines to cases involving different claimants, there may be a valid distinction depending on whether the previous decision was in favour of or against the Secretary of State. The difference is that the Secretary of State was a direct party to the first decision, whereas the claimant was not. It is one thing to restrict a party from re-litigating the same issue, but another to impose the same restriction on someone who, although involved in the previous case, perhaps as a witness, was not formally a party. This is particularly relevant to the tribunal’s comments, in Devaseelan, on what might be ‘good reasons’ for reopening the first decision. It suggested that such cases would be rare. It referred, for example, to the ‘increasing tendency’ to blame representatives for unfavourable decisions by adjudicators, commenting:
‘An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative’s error or incompetence.’
I understand the force of those comments where the second appeal is by the same claimant, but less so where it is by a different party, even if closely connected. Although I would not exclude the Devaseelan principles in such cases (for example, the hypothetical series of cases involving the same family cited in TK Georgia), the second tribunal may be more readily persuaded that there is ‘good reason’ to revisit the earlier decision.’
37. The Court of Appeal cited with approval Djebbar. Consequently, it can properly be understood that the guidelines as extended to third party cases and as modified by Ocampo and AA (Somalia) must also be applied with the flexibility identified in Djebbar and subject to an individual judge’s obligation to decide each case on its own merits and in a way they conscientiously consider to be right.
38. To summarise, where an appellant seeks to rely on findings of primary fact made and/or conclusions reached in an earlier appeal, the authorities have held as follows:
(a) Where an appellant relies on the same factual matrix as another individual did in an earlier appeal, the Devaseelan guidelines apply as equally as they would to a second appeal by the latter individual.
(b) Those guidelines require the judge hearing the later appeal to treat the earlier judge’s decision as their starting point.
(c) Later facts or facts immaterial to the earlier decision can always be taken into account.
(d) Objective evidence which was available and apparently relevant to, but not adduced at, the earlier appeal should be treated with caution. Evidence personal to the appellant, apparently relevant to the first appeal but given for the first time at the second appeal, should be treated with the greatest circumspection.
(e) Less caution or circumspection might well be justified if there is a good reason why the evidence was not adduced in the earlier appeal.
(f) The above principles apply equally whether it is the appellant or respondent seeking to rely on the new facts or evidence.
(g) Where a party relies in essence on the same facts as before, the matter should ordinarily be considered settled by the earlier decision, at least insofar as it concerns the state of affairs at the date of that earlier decision.
(h) However, the guidelines do not offend judicial independence; they recognise each judge’s obligation to decide the case before them on its own merits, and so do not prevent the second judge from making findings which they conscientiously believe to be right.
Application to the Present Case
39. Mr Malik’s submission is two-fold. The first, in a nutshell, is that the appellant’s father has been found to have had sole responsibility for his sister; following Devaseelan, the same finding should follow for the appellant. The second, again in a nutshell, is that, whilst the appellant lives with and is cared for by his mother, she is uneducated and is unable and/or unwilling to give him a suitable upbringing; instead, his father takes all relevant decisions in and gives all relevant support for the appellant’s upbringing and so has sole responsibility for him.
40. I have set out above the relevant findings of Judge Phull above. She accepted that the sponsor visited his family regularly and sent remittances to support the entire family. These are findings equally applicable to the appellant as to his sister, and there is no good reason why I should go behind them. Judge Phull also accepted that the sponsor took his responsibilities of a father seriously, spoke regularly to the appellant’s sister, and that he took all of the major main decisions for the appellant’s sister, in particular all decisions regarding her education (accepting that her mother did not attend parent evenings). Again, there is no good reason (indeed any reason at all) why I should go behind these findings insofar as they relate to the appellant’s sister.
41. The question is the extent to which they inform my assessment of the appellant's case. Mr Malik submits that they (and Judge Phull’s conclusion that the sponsor therefore had sole responsibility for the appellant’s sister) are my starting point and, it being inherently unlikely that the sponsor’s role in the appellant’s life was any different, that I can infer sole responsibility for the appellant.
42. I am unable to do so for the following reasons. It is not inevitable that parents have the same relationship with each of their offspring. Even if I were to accept (as I am minded to do) that the sponsor has taken all major decisions regarding the appellant’s education, it does not automatically follow that he takes all relevant decisions on the appellant's upbringing. I recognise that that is effectively what the sponsor claims to do. However, I have one glaring missing jigsaw piece: the mother’s evidence to that effect.
43. It is true that the appellant’s mother states in her affidavit that the appellant is fully financially dependent on his father and that she plays no role in his education. However, a mother’s role goes well beyond financial support and educational guidance. Indeed, even today it is not entirely uncommon for the father in a family unit to be the sole breadwinner, or in certain countries for the mother to be poorly educated and so to leave matters of education to the father. She does not say that she plays no role in the appellant’s upbringing. Judge Phull found that the mother had not abdicated responsibility for the appellant’s sister and it was not suggested to me that the she had abdicated responsibility for the appellant. Even if it had been, I do not accept that the evidence establishes it as a matter of fact. The closest that the appellant himself gets to circumscribing his mother’s part in his life is the statement in his application that, ‘my father is supporting me in any events in my life.’
44. Even if I were to accept that the mother played no part in any major decisions for the appellant (and the evidence falls short of persuading me of the point on balance) that does not mean she plays no part in his upbringing. That would reduce a mother with a genuine and subsisting parental relationship with her child (as I find as matter of fact to be true in the absence of any persuasive evidence to the contrary) to the status of a mere child-minder. It is also contrary to TD (Yemen) at [45]-[48].
45. In summary, whilst I take as my starting point Judge Phull’s findings regarding the appellant’s sister, I do not find that the factual matrix overlaps sufficiently to require me to reach the same conclusions regarding the appellant. Indeed, I find that the evidence falls well short of establishing that the sponsor has sole responsibility for the appellant. I do not consider that to be a conclusion inconsistent with Judge Phull’s.
46. To the extent that my analysis and conclusions are inconsistent with Judge Phull’s own conclusions, I am unable in good conscience to reach any different decision.
47. Turning to the appellant’s case ‘outside the Rules’, I find the following facts. It is no longer asserted that there are serious or compelling family or other considerations making the appellant’s exclusion undesirable. Consequently, I reject as not established any suggestion that the appellant mother’s is unable to provide any care he needs, noting also that he is now an adult.
48. The appellant has lived with his mother for the whole of his life. His father came to the United Kingdom in April 2007 and has lived here ever since. Nevertheless, he remains in touch with the appellant (and the rest of the family) with regular visits and communication. Both of the appellant’s parents have a genuine and subsisting parental relationship with him. However, they each play different roles in his life. It is inevitable that his mother aids him in his everyday life whereas his father is very much his mentor in all things academic.
49. There is no evidence that the appellant’s best interests were at all compromised by his remaining in Pakistan with his mother. On the contrary, he appears to have thrived; it is said that he is qualified and capable to complete a degree in the United Kingdom. Nevertheless, he desires to study a subject at university which is not available in Pakistan but is in the United Kingdom. Being denied that opportunity would be disappointing for the appellant (perhaps even gravely disappointing) but would not be contrary to his best interests, if that were a consideration. As it is, the appellant is no longer a minor. In any event, no evidence has been given for why the appellant could not apply for his desired course as a foreign student and, if accepted, apply for entry clearance in that capacity.
50. Taking a balance sheet approach, I give considerable weight to the public interest in maintaining effective immigration controls.
51. The respondent appears to accept that the appellant speaks English and that he would be adequately accommodated and maintained by the sponsor; however, these are neutral factors.
52. For the appellant is the fact that allowing the appellant’s entry would improve the quality of his family life with his sponsor and sister, Asma. However, it would inevitably adversely affect his family life with his mother and brother in Pakistan. Refusal will maintain the status quo. Remaining outside the United Kingdom will likely delay the appellant’s commencing Air Traffic Control studies; however, there no evidence that he is unable to secure entry at some point on a student visa. Even if that were the case, I am entirely unpersuaded that any unjustifiable harshness arises from requiring the appellant to meet the same requirements as any foreign student seeking entry clearance as such.
53. In short, I find that the public interest significantly outweighs the appellant’s personal rights and that refusal is clearly proportionate.
Notice of decision
1. The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
2. The decision is remade in the Upper Tribunal and the appeal is dismissed on human rights grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2026