Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002513

First-tier Tribunal No: HU/58666/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st May 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL BEACH

Between

TL
(ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms Solanki, Counsel instructed by Vanguard Solicitors
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on 8 May 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS

Background

1. By a decision promulgated on 29th November 2024, the Tribunal (Deputy Upper Tribunal Judge B Keith) found an error of law in the decision of the First-tier Tribunal Judge dated 11th March 2024 dismissing the Appellant’s appeal against the Respondent’s decision dated 26th June 2023 refusing his human rights claim made in the context of an application for leave to enter as the dependent child of a parent with leave under Appendix EU. In consequence of the error found, Deputy Upper Tribunal Judge B Keith set aside that decision and gave directions for a hearing to re-make the decision in this Tribunal.

2. The Tribunal found an error of law in the First-tier Tribunal decision on the following grounds:
(a) That the First-tier Tribunal failed to adequately consider the best interests of the Appellant
(b) That the First-tier Tribunal erred in finding that the fact that the maternal grandparents had day to day responsibility for the Appellant meant that the sponsor could not have sole responsibility for the Appellant
(c) That the First-tier Tribunal’s Article 8 assessment was flawed as a result of those errors

3. At a hearing on 26th March 2025, Upper Tribunal Judge Grey raised two issues with the parties; whether Deputy Upper Tribunal B Keith was seeking to preserve a finding of sole responsibility for the Appellant’s upbringing for the purposes of the Immigration Rules and whether Deputy Upper Tribunal Judge B Keith was preserving the finding that the Appellant’s father had no contact or relationship with the Appellant. Upper Tribunal Judge Grey found that the following findings were preserved by Deputy Upper Tribunal Judge B Keith:
(a) The Appellant is related to the sponsor as claimed
(b) The sponsor has parental responsibility for the Appellant
(c) The Appellant’s father does not share parental responsibility for the Appellant
(d) The Appellant cannot meet the financial requirements of the Immigration Rules
Upper Tribunal Judge Grey found that the Upper Tribunal would need to make an assessment of all the relevant relationships for the purposes of an Article 8 assessment; the Appellant’s relationship with his parents, his maternal grandparents, his stepfather and his sister.

The Issues and the Legal Framework

4. The Respondent refused the Appellant leave to enter the UK on the basis that he could not meet the eligibility requirements of the Immigration Rules (“the Rules”) under Appendix FM. The Respondent did not accept that the Appellant’s mother had sole responsibility for the Appellant. The Respondent also did not accept that the Appellant met the financial eligibility requirements of Appendix FM because he had not provided the specified evidence of employment. The Respondent further refused the application on the basis that there were no exceptional circumstances which would mean that the failure to grant leave to enter the UK would lead to unjustifiably harsh consequences. In the initial refusal, the Respondent had also refused the application because she was not satisfied that the Appellant was related as claimed to the sponsor. However, the First-tier Tribunal found that the Appellant was related as claimed to the sponsor and that finding was preserved by Deputy Upper Tribunal Judge B Keith when he set aside the First-tier Tribunal decision.

5. It was accepted by both parties that the Appellant could not meet the requirements of the Immigration Rules because he had not provided the specified evidence of employment for the sponsor as required under Appendix FM-SE.

6. The only issue before us was whether the failure to grant leave to enter the UK would lead to unjustifiably harsh consequences for the Appellant. In making that assessment, the extent to which the Appellant meets the requirements of the Immigration Rules is a relevant factor. Although the only issue in this appeal is whether the Appellant’s removal would breach section 6 Human Rights Act 1998, if the Appellant meets the Rules that would point towards the allowing of his appeal on human rights grounds (see TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109). If the Appellant does not meet the Rules, that is a relevant factor pointing in the other direction which needs to be taken into account in the balancing exercise.

7. Under GEN 3.2 of Appendix FM, the Appellant relies on the claimed interruption to his family life with the sponsor (his mother).

8. When assessing Article 8 ECHR under GEN 3.2 of Appendix FM, we are required to conduct a balancing exercise between the interference with the Appellant’s private and family life and the rights of those family members who may be impacted by his failure to be granted leave to enter the UK. We are required in that analysis to have regard to the factors in section 117B Nationality, Immigration and Asylum Act 2002 (“Section 117B”) and to the best interests of the Appellant under Section 55 of the Borders, Citizenship and Immigration Act 2009.

The Evidence

9. We had before us a consolidated bundle running to 307 pages which included an updated Appellant’s appeal bundle, the Appellant’s appeal bundle which had been before the First-tier Tribunal and the Respondent’s appeal bundle which had been before the First-tier Tribunal as well as the Respondent’s review decision dated 28th February 2024. On the morning of the hearing, the Appellant’s representatives also emailed a copy of a letter from the Albanian Embassy which had been inadvertently left out of the consolidated bundle but which had previously been before the First-tier Tribunal.

10. We heard evidence from the sponsor (the Appellant’s mother), AI. Having heard evidence from the sponsor and submissions from Ms Clewley and Ms Solanki, we indicated that we would reserve our decision and provide that with reasons in writing which we now turn to do.

Discussion

Sole Responsibility

11. The sponsor was asked about what role she and the maternal grandparents played in the Appellant’s life. She said that all decisions were made by her and that she relayed those decisions to her parents. With regard to schooling, the sponsor said that she is a member of a What’s App group at school and that the teachers send her any homework which she then sends to her parents and a teacher that helps the Appellant in an afterschool homework club. The sponsor said that she was the one whom the teachers contacted if the Appellant was unprepared in school or did not do his homework. The sponsor accepted that the maternal grandparents had everyday contact with the school and dropped him and collected him from school as well as attending parents’ evenings but said that any decisions were made by her and that she provided her instructions via video calls. She said that she has daily contact with the Appellant twice a day and that she is the only one who is financially responsible for him.

12. The decision in TD (Paragraph 297(i)(e): "sole responsibility") Yemen [2006] UKAIT 00049 states:
‘"Sole responsibility" is a factual matter to be decided upon all the evidence. Where one parent is not involved in the child's upbringing because he (or she) had abandoned or abdicated responsibility, the issue may arise between the remaining parent and others who have day-to-day care of the child abroad. The test is whether the parent has continuing control and direction over the child's upbringing, including making all the important decisions in the child's life. However, where both parents are involved in a child's upbringing, it will be exceptional that one of them will have "sole responsibility".’

13. The decision further states:
“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….
…
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).

49. Where one parent has disappeared from the child’s life and so relinquished or abdicated his (or her) responsibility for the child, the starting point must be that it is the remaining active parent who has “sole responsibility” for the child.”

14. The decision in TD addressed Paragraph 297 of the Immigration Rules but similar considerations are applicable under Appendix FM where sole responsibility is also an issue to be decided.

15. The sponsor’s evidence was given in an open and honest manner and she did not hesitate to answer the questions she was asked or seek to obfuscate or deflect the questions. There was however limited documentary evidence before us of contact between the sponsor and the Appellant’s school or between the sponsor and the Appellant and the maternal grandparents.

16. The updated witness statement from the sponsor refers to being financially and emotionally responsible for the Appellant [7] and to the sponsor’s involvement with the Appellant’s school [8]. That is consistent with the sponsor’s oral evidence. She outlines, within the witness statement, how she takes responsibility for the Appellant including deciding when and whether he will have a sleepover, discussing his homework [9] and discussing with the maternal grandmother the Appellant’s plans for the day [8]. The sponsor, in her oral evidence, stated that she has a Monzo account to which the maternal grandparents have access in Albania, using the debit card attached to the account. That is consistent with the Monzo bank statements included in the Appellant’s bundle.

17. The Appellant attends football training in Albania and has provided a letter from the Football Association ‘F.C. Futboll Junior’, dated 26th April 2025. The author of the letter, Bledar Ristani, states that the sponsor covers the financial costs of the training. Mr Ristani further states that the Appellant has missed three sessions in the previous months because the maternal grandparents find it difficult to bring the Appellant and remain waiting for him. Mr Ristani stated that he had observed a change in the Appellant recently in that he had become withdrawn and distracted and sometimes displayed aggressive behaviour. He records that, when he spoke to the Appellant, he said that he is missing the sponsor and wanted her to see him play football. Mr Ristani did not attend the hearing (there was no application for him to give evidence remotely) and so was not cross-examined. We therefore approach this evidence with some caution given that it has not been tested before us. However, we note that the statement that the sponsor covers the financial cost of the Appellant’s training is consistent with the sponsor’s evidence.

18. The Appellant has also provided a letter from his afterschool club, Vision Centre, dated 28th March 2025. This states that the maternal grandparents ensure that the Appellant attends every day as they cannot help him with his homework and that the sponsor pays for the service and has regular communication with them regarding the Appellant’s development. The letter states that there has been a decline in the Appellant’s focus and attention recently and that they contacted the sponsor who informed them that she had been unable to visit Albania and she believed this had caused him to be upset. The letter also states that, in story time, the Appellant had described the sponsor as his hero and that he wanted to live with her again. The author of the letter did not attend the hearing (again there was no application for the hearing to be a hybrid hearing to allow this to happen) and we take account of that when assessing the weight to be afforded to it. However, we also note that it is consistent with the sponsor’s evidence that, whilst the maternal grandparents physically take the Appellant to and from school and clubs because she is not present, it is she who has contact with the school and clubs.

19. There is also an undated letter from the Appellant’s school teacher, Erinda Hila, which states that in the 2024/2025 school year, the teacher’s contact has been with the sponsor. She states that the sponsor completed the online school registration form, is responsible for dropping and collecting the Appellant when she is in Albania and has daily contact with his teacher. Ms Hila further states that when the sponsor is not in Albania, the maternal grandparents drop and collect the Appellant and are responsible for his academic progress. She states that she has had no contact with the Appellant’s father throughout this time. We did not hear oral evidence from Ms Hila and so it was not tested in cross-examination but the evidence was consistent with that of the sponsor.

20. There is a preserved finding that the Appellant’s father does not have parental responsibility for the Appellant. The sponsor’s account is that he has no contact with the Appellant and that was not challenged in cross-examination. The letters from the football training and homework club make no reference to the Appellant’s father and the teacher’s letter specifically states that she has never had any contact with the Appellant’s father. That is all consistent with the sponsor’s account that he had no involvement with the Appellant and therefore has no involvement in any decision making relating to the Appellant. There is a letter from the Albanian Embassy in the UK which places him in the UK as at 14th December 2023. He states that the sponsor has full rights over the care of the Appellant. The Appellant’s father has provided a witness statement in which he states that he has made a new life since he left the family in 2019 and that he wishes to give the sponsor full parental responsibility. The Appellant’s father did not give evidence at the hearing despite apparently being in the UK and having some contact with the sponsor given that he was able to provide a witness statement in support of the appeal and despite stating that he wishes the Appellant to be with the mother. The Appellant’s stepfather did not give evidence either and there was no witness statement from him despite the fact that he would have been able to explain, to some degree, the level of involvement (or lack of involvement) of the Appellant’s father and the level of involvement of the maternal grandparents. The maternal grandparents provided a statement but did not attend the hearing remotely. All of those witnesses could have provided further corroboration to the sponsor’s account but chose not to do so for unknown reasons. That undermines the credibility of the account to some degree.

21. However, we also take account of the way in which the sponsor gave her evidence, the fact that it was consistent with other documentary evidence, the fact that she was able to explain how she made decisions regarding the Appellant and the fact that there is evidence of financial support. There was also reference to What’s App contact between the Appellant and the sponsor but this was all in Albanian and had not been translated.

22. The Appellant also provided the documents relating to his parents’ divorce. The judgment given by the District Court of Fier noted that a reconciliation session had been arranged on two occasions but that the Appellant’s father had failed to attend. The sponsor is recorded as stating that the Appellant’s father has very little contact with the children (the Appellant and his sister) and that the paternal family had nothing to do with them. The Court had directed a psychological report be prepared for the proceedings regarding the children. The judgment records that the sponsor took both children to live with her at the maternal grandparents’ house in July 2018, the Appellant’s father did not ask them to return and subsequently left Albania in 2019. The judgment states ‘…the respondent has not maintained communication with the children during these years he is away, and his excuse to the psychological expert was related to the fact that he had some problems of his own.’ The Court ruled that the children should reside with the sponsor and have contact with the father. The suggested contact was weekend contact on alternate weekends and part of the summer holidays and recommended that both parents attempt to celebrate important occasions such as the children’s birthdays together. The Court also ordered the Appellant’s father to pay ALL 32,000.00 per month in respect of his financial responsibility to the children. The Court recorded that the Appellant’s father was living with relatives in the UK and earned money as and when he could find employment. They noted that the Appellant’s father had indicated a wish to have visitation rights to the children and to ‘bear legal responsibility for them as much as possible’. In assessing the financial obligation, the Court noted that the Appellant’s father lived in the UK and stated that he would not remain there if he could not find employment, that the minimum hourly wage in the UK was £8.00-£9.00, that he had no other dependent children and that he had no disabilities so could work overtime. The Court’s decision is dated 27th January 2022. The judgment is consistent with the sponsor’s evidence that the Appellant’s father has played a minimal role in the children’s lives. He expressed a wish to have visitation rights and to have legal responsibility for them but it was also recorded that he was living in the UK, had limited, if any, contact with the children at that time, did not contribute financially and had left Albania three years before.

23. The sponsor married the Appellant’s stepfather on 8th April 2022. She was granted leave to enter the UK on 21st March 2023 and arrived in the UK on 5th May 2023. Prior to leaving Albania, the sponsor lived as part of the family unit with the Appellant, the Appellant’s sister and the maternal grandparents. It was not suggested by the Respondent that she did not have sole responsibility for the Appellant at that time. The Appellant made an application for leave to enter the UK on 8th December 2022. Ms Solanki stated that this was at the same time as the sponsor applied for leave to enter the UK. We do not have a copy of her application but the timing would be consistent with that and the Appellant’s application form is for leave to enter as a child of a person who is seeking leave to enter the UK. The application form states that the Appellant lives with the sponsor and that the sponsor is not in the UK. The Respondent’s review decision also records that the applications were made together. That is all consistent with the Appellant applying at the same time as the sponsor.

24. We find that the Appellant lives with his sister and maternal grandparents and that the maternal grandparents are responsible for his day to day care. However, day to day care is not necessarily the same as having sole responsibility. In many cases where an appellant has applied to enter the UK as a dependent child, the parent whom they are joining is already in the UK. If the test for sole responsibility sought to exclude all those who live with other relatives who have day to day care for them, this would mean that many appellants would never be able to meet the Rules. We find that the evidence shows that it is more likely than not that the sponsor is the individual who takes the decisions regarding the Appellant, who has contact with his school and clubs and who has overall responsibility for the Appellant. We further find that the sponsor is solely financially responsible for the Appellant and that she has frequent contact not only with the Appellant but also with his school and clubs and takes responsibility for the Appellant.

25. We also find that the Appellant’s father does not play any part (or any significant part) in the Appellant’s life. He did not attend the divorce proceedings and whilst requesting visitation rights, it is clear from the Court judgment that at that stage he had no contact with them of any substance and did not provide financially for them. He has remained in the UK since that date; an Embassy letter confirms he was still in the UK in December 2023 and the sponsor’s evidence was that this was still the case. We find that the Appellant’s father has, in effect, abdicated responsibility for the children. We find, taking account of all of the evidence, that the sponsor has sole responsibility for the Appellant.

Financial requirements

26. The Appellant cannot, however, fulfil the requirements of the Rules in the strictest sense because he did not provide the specified evidence for the sponsor ‘s husband with his application form as required under Appendix FM-SE. The Appellant applied for leave to enter the UK at the same time as the sponsor made her application for leave to enter the UK as a partner. It was therefore necessary to show a combined income of £22,400.00 (£18,600.00 for the sponsor and £3,800.00 for the Appellant). The letter from the sponsor’s husband’s employer did not confirm his annual income or that the employment was permanent employment. The Respondent noted that the sponsor had provided payslips for March to October 2022 but not up until December 2022 when the Appellant’s application was made so it did not therefore cover the 6 month period prior to the date of the application. The Respondent further noted that the specified evidence for paragraph 2(a)-(c) (payslips and bank statements for the 6 months prior to the date of the application and an employer’s letter with details of employment, salary, length of salary and type of employment) of Appendix FM-SE had not been provided.

27. The Appellant had provided payslips covering March 2022 until September 2022 which showed gross payment of between £1,704.00 and £2,940.00 and bank statements for the period from 1st March 2022 until 5th October 2022 showing payments in of the sponsor’s husband’s wages. The payslips equated to £1,926.00 on average per month (the 6 months gross payments added together and divided by 6) which amounts to £23,112.00 per annum (which is over the required amount). However, the Appellant had not provided the specified evidence required by the Rules. By the date of the First-tier Tribunal hearing, the Appellant had still not provided the specified evidence; there were bank statements up until 5th January 2023 but the payslips still stopped in September 2022 and the employer’s letter did not contain all the information required by Appendix FM-SE.

28. By the date of the hearing before us, there was further evidence in the form of the sponsor’s payslips for December 2024 until April 2025. The sponsor moved employment between March 2025 and April 2025 so the payslip for April 2025 only covers part of the month. The sponsor also provided her bank statements for 21st November 2024 until 20th December 2024 (which did not clearly show a payment in for employment) and for 21st December 2024 until 17th April 2025 which did show payments in from employment. However, that employment does not cover a 6 month period and in any event, the specified evidence of a letter from the sponsor’s employer was also missing. The Appellant cannot, therefore, show that the sponsor meets the financial requirements because he has not provided the evidence required by Appendix FM-SE.

Gen 3.2 (Article 8 outside the Rules)

29. We have therefore considered whether the refusal of leave to enter the UK would lead to unjustifiably harsh consequences for the Appellant. In making this assessment, we have taken account of section 55 and the best interests of the Appellant as well as relevant factors under Section 117B.

30. There was no evidence before us to show that the Appellant speaks English but he is young and would be attending school in the UK and would be likely to learn English within a relatively short period of time. The sponsor is working in the UK and whilst the specified evidence has not been provided, the payslips and bank statements show that she is earning in excess of the required amount (as at the time of the decision). Her income from new employment in April 2025 equated to £1,512.00 gross but that was for only part of April and only covered ten days of work. The sponsor gave her income as £3,000.00 per month which would equate to £36,000.00 and is in excess of the current financial requirements.

31. The Appellant did not form his family life when he was unlawfully in the UK. He has never lived in the UK and his family life was formed when the sponsor was living in Albania.

32. The Appellant has no contact with his father. He is separated from his mother (the sponsor) because she is living in the UK and he is living in Albania. The Appellant clearly has loving grandparents and his sister in the Albania but the evidence also states that he is affected by his mother not being in Albania with him. There was medical evidence regarding the grandparents but we find that this did not show more than what are quite normal ailments and which do not necessarily impair an individual’s ability to care for a child. The medical evidence did not suggest that the medical conditions were so severe that it meant they could no longer care for the Appellant particularly as the Appellant’s sister is also there to support the grandparents and the Appellant is getting older and more capable of doing things for himself. We accept, however, that the Appellant has been emotionally affected by the absence of his mother particularly as he no doubt hoped and expected that he would be travelling to the UK with her given that he made his application at the same time as his mother. That would have been an additional emotional impact given the lack of contact with his father who has played no real part in the Appellant’s since shortly after his birth. It is likely therefore that the Appellant’s emotional connection with his mother has been strengthened by the absence of his father and that her absence is likely to affect him all the more because of the absence of one parent already. We find that it is in the best interests of the Appellant to live with his mother notwithstanding that this would mean leaving behind his sister and maternal grandparents and settling in a new school. He is still young and his relationship with his family is likely to be of more importance given he will not have formed significant relationships outside the family unit. However, the best interests of a child, whilst a primary factor, are not the primary factor. It is in the public interest for those who do not meet the requirements of the Rules to be refused leave to enter and that public interest is significant.

33. It was submitted that the sponsor could return to Albania to live with the Appellant. However, she and her husband have pre-settled status in the UK and returning to Albania would mean that they would lose their ability to obtain settled status under Appendix EU and the benefits they would gain from that. The sponsor does not have employment in Albania and her ability to sponsor her husband to join her in Albania at the present time may therefore be limited. Her husband would also have to give up his employment and relocate to a new country. He is a Greek national of Romanian heritage and does not have any known connection to Albania.

34. We take account of the fact that we have found that the sponsor has sole responsibility for the Appellant, that the sponsor has provided evidence to show she is earning in excess of the required financial amount, that there is adequate accommodation available to the Appellant in the UK and that there is a strong emotional attachment between the Appellant and the sponsor which is affected by their separation. We have considered whether it would be proportionate to expect the Appellant to make a new application for leave to enter with the requisite evidence but find that this would lead to a continued delay and separation which would not be in the Appellant’s best interests.

35. The Appellant has a family life with the sponsor. That family life was formed in Albania and has continued in the absence of the sponsor from Albania; she has maintained regular contact with the Appellant and we have found that she has sole responsibility for him. We find that the refusal of leave to enter is an interference with that family life of sufficient gravity as to engage Article 8. We further find that the interference is in accordance with the law in as much as there is a clearly identifiable set of Rules which have been applied by the respondent. We have therefore considered whether the decision is a justified, necessary and proportionate decision. Although it is accepted on the Appellant’s behalf that he cannot meet the Rules because the evidence of the sponsor’s income does not meet the requirements for specified evidence, we have found that the sponsor’s income does in fact meet the income threshold. We find, taking account of all of the evidence, that the public interest is outweighed by the factors in the Appellant’s favour.

Notice of Decision

The appeal is allowed on the basis that the Respondent’s decision breaches the Appellant’s Article 8 rights.

F Beach

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

20th May 2025