Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002726
First-tier Tribunal No: HU/59397/2023

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MALIK KC

Between

ENTRY CLEARANCE OFFICER
Appellant
and

ak (afghanistan)
(ANONYMITY DIRECTION made)
Respondent

Representation

For the Appellant: Mr Peter Lawson, Senior Presenting Officer
For the Respondent: Mr Mohammad Osmani, Times PBS

Heard at Field House on 19 February 2025

Order Regarding Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent is granted anonymity.

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

DECISION AND REASONS
Introduction
1. This is an appeal by the Entry Clearance Officer (“the ECO”) against the decision of First-tier Tribunal Judge Gordon-Lennox (“the Judge”), promulgated on 22 April 2024. By that decision, the Judge allowed the appeal brought by the Respondent (“AK”) against the refusal of his application for entry clearance to the United Kingdom.
Factual background
2. AK is a citizen of Afghanistan, born in 2017. He has lived in Afghanistan since birth. His father was killed in a suicide attack in 2018, and shortly thereafter, his mother abandoned him and his brother. His uncle (“the sponsor”), who is also a citizen of Afghanistan, resides in the United Kingdom as a refugee. He made an application for entry clearance to join the sponsor on 7 December 2021.
3. The ECO refused AK’s application on 19 July 2023 on the basis that the requirements in Appendix Family Reunion of the Immigration Rules were not met. It was noted that AK, being the nephew of the sponsor, did not meet the relationship requirements. The ECO also concluded that the refusal of entry clearance would not be incompatible with Article 8 of the ECHR.
4. The Judge heard AK’s appeal against the ECO’s decision on 10 April 2024. It was common ground before the Judge that the requirements of the Immigration Rules were not met. The Judge found that the family life limb of Article 8 was engaged and held that the ECO’s decision was disproportionate and unjustified. The Judge accordingly allowed the appeal by a decision promulgated on 22 April 2024.
5. Deputy Upper Tribunal Judge Skinner granted the ECO permission to appeal on 3 July 2024.
Grounds of appeal
6. The ECO has permission to appeal on two overlapping grounds. The basic point made in the two grounds is that the Judge erred in law in holding that the family life limb of Article 8 was engaged. The first ground contends that the Judge’s conclusion that there was family life between AK and the sponsor was irrational and that his approach was flawed. The second ground contends that the Judge misdirected himself as to the engagement of Article 8.
7. Deputy Upper Tribunal Judge Skinner, when granting permission to appeal, identified a further issue in these terms:
“I would also note that it is not clear to me why the FtT attached weight to the best interests of the appellant (as it appears to have done at §32) at the stage of determining whether there was “family life” between appellant and sponsor. One does not apply a different standard merely because it would be in the best interests of the child to do so. Best interests is relevant to the proportionality stage of the Article 8 analysis, but not to the first four Razgar questions. Applying it to the question of family life seems to me a further arguable error. This ground is however not currently pleaded, so permission is not granted in respect of it. If the Respondent wishes to rely on it, an application for permission to amend will need to be made in good time to enable the Appellant fairly to respond to it at the hearing and/or in any rule 24 response.”
8. The ECO filed and served amended grounds on 8 July 2024, seeking to adopt this additional issue and raising a third ground, namely, that the Judge took into account an irrelevant matter in finding that the family life limb of Article 8 was engaged.
Submissions
9. I am grateful to Mr Peter Lawson, representing the ECO, and Mr Mohammad Osmani, representing AK, for their assistance and clear submissions.
10. Mr Lawson made submissions in line with the pleaded grounds of appeal. He invited me to allow the appeal, set aside the Judge’s decision, and remit the appeal for a fresh hearing.
11. Mr Osmani, relying on his detailed skeleton argument, resisted the appeal and submitted that the Judge made no material error of law. He also resisted the ECO’s application to amend the grounds of appeal so as to raise the third ground. He invited me to dismiss the appeal and uphold the Judge’s decision.
Discussion
(i) Application to rely on the third ground
12. I have a discretion under Rule 5(1)(c) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“Procedure Rules”) to permit the Secretary of State to amend the grounds of appeal so as to raise the third ground. I have considered the guidance given in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC) and the overriding objective in deciding how to exercise my discretion. I attach particular weight to the need for litigation to be conducted efficiently and at a proportionate cost, as well as the need to enforce compliance with rules, practice directions, and orders.
13. I take into account the fact that the third ground could have been included by the ECO in the application for permission to appeal. There is no explanation as to why the third ground was not part of the original grounds. However, as noted above, Deputy Upper Tribunal Judge Skinner, when granting permission to appeal, identified it in clear terms. He placed both sides on notice that it amounted to a further arguable error in the Judge’s decision.
14. As envisaged by Deputy Upper Tribunal Judge Skinner, within a week of the grant of permission to appeal, the ECO filed and served amended grounds seeking to raise the additional ground. AK had over seven months to consider the issue and respond to it. Mr Osmani, as I noted above, produced a detailed skeleton argument and addressed me on the merits of the third ground without any difficulty. There is no prejudice to AK. I am satisfied that AK received a fair opportunity to address the substance of the third ground. The ground is plainly arguable and indeed has a strong prospect of success.
15. In all the circumstances, I conclude that it would be just, proportionate, and in accordance with the overriding objective to permit the ECO to rely on the third ground. I grant the ECO permission to amend the grounds of appeal and also grant permission to appeal on the third ground.
(ii) Error of law
16. The Judge’s analysis is in two parts. The first part, at [31]-[34], has a heading “Article 8(1)” and relates to the question of whether there is family life. The second part, at [35]-[37], has a heading “Article 8 balancing exercise” and relates to the assessment of proportionality.
17. The Judge, at [32], when considering whether there was family life between the Appellant and the sponsor, directed himself in these terms:
“I remind myself that the threshold for engaging Article 8 is not very high. I am also mindful of the duty to consider the bests interests of a child which I attach weight to.”
18. It is evident that the Judge attached weight to the best interests of the Appellant in assessing whether there was family life. It is well settled, as endorsed by the Supreme Court in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] WLR 3690, at [10], that the best interests of a child are an integral part of the proportionality assessment under Article 8. However, the best interests consideration does not form part of the earlier stage of analysis as to the engagement of Article 8.
19. In Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757, at [22], the Court of Appeal emphasised the need to avoid confusing the concept of justification for any interference with the right to respect for family life with the logically prior question of whether an applicant is able to get through a gateway into Article 8 in the first place. That prior question depends, the Court of Appeal noted, on whether it has been established that there was family life between the relevant persons. The Court of Appeal, at [35], added that:
“… as a matter of principle, the question whether there is family life for the purpose of Article 8 is a logically prior question and cannot depend on the purpose for which an application for entry clearance is made.”
20. It may well be the case that it is in AK’s best interests to relocate to the United Kingdom and reside with the sponsor. The purpose of the application for entry clearance is surely to protect and enhance his welfare. If Article 8 is engaged, AK’s best interests would be a primary consideration in the assessment of proportionality. However, those best interests cannot assist with the logically prior question of whether Article 8 is engaged at all. The question of whether there is family life between AK and the sponsor cannot possibly depend on the purpose of the application for entry clearance or the best interests of AK.
21. In my judgment, the Judge conflated the question of the engagement of Article 8 with the question of justification and proportionality. I conclude that the Judge erred in law in attaching weight to AK’s best interests in considering the logically prior question of whether there was family life between AK and the sponsor.
22. AK and the sponsor have never met in person. As the Judge noted, at [21], the sponsor arrived in the United Kingdom around 2009 and established contact with AK in 2021. The relevant principles relating to the engagement of family life under Article 8 have been explored in a line of well-known authorities, starting from Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 [2003] INLR 170. A helpful distillation of those principles is set out in Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, at [46], as follows:
“… the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.”
23. The Judge, at [33], gave these reasons for finding that the family life limb of Article 8 was engaged:
“Although I accept that the Appellant and the Sponsor have never met, as I have considered above there is good reason why this is the case. Irrespective of this though I have found that the Sponsor is providing financial assistance to the Appellant and that their relationship goes beyond that of uncle and nephew given the absence of the Appellant’s father or any familial father figure in Afghanistan. I have accepted that the Sponsor is providing a father figure role to the Appellant. In light of the foregoing I take the view that the Sponsor is providing real, committed and effective support to the Appellant.”
24. The fact that AK and the sponsor have never met is surely material. However, I do not accept, as the ECO suggests, that it is determinative. I am not persuaded that there can never be family life between family members who have not physically met. Co-habitation, as noted above, is generally a strong pointer towards the existence of family life. Likewise, the fact that two family members have not met at all is generally a strong pointer towards the conclusion that there is no family life for the purpose of Article 8. The case law does not establish an absolute and prescriptive rule to be applied to all cases.
25. Accordingly, I reject the ECO’s submission that the Judge’s finding is irrational in the sense that no reasonable judge could have found that Article 8 was engaged.
26. The Judge correctly acknowledged the fact that AK and the sponsor have never met, but then sought to balance it out by observing that there is a good reason for why this is the case. There is nothing in the Judge’s analysis that indicates that he appreciated that the fact that they have never met is a strong pointer towards the conclusion that there is no family life for the purpose of Article 8. The Judge found that the sponsor was providing financial assistance to AK, who has no familial father figure in Afghanistan. These matters were of course relevant, but there ought to have been a recognition of the strong pointer towards the opposite direction.
27. I entirely accept that I should not rush to find an error of law in the Judge’s decision merely because I might have reached a different conclusion on the facts or expressed it differently. Where a relevant point is not expressly mentioned, it does not necessarily mean that it has been disregarded altogether. It should not be assumed too readily that a judge erred in law just because not every step in the reasoning is fully set out. Experienced judges in this specialised field are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically. In this instance, for the reasons outlined above, I am satisfied that the Judge’s conclusion as to the engagement of Article 8 is wrong in law. It follows that the Judge’s assessment of the proportionality under Article 8 cannot stand.
Conclusion
28. For all these reasons, I find that the Judge erred on a point of law in allowing AK’s appeal, and the error was material to the outcome.
29. I set aside the Judge’s decision and, applying the guidance in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC), preserve no findings of fact.
30. Having regard to paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers, and the extent of the fact-finding required, I remit the appeal to the First-tier Tribunal to be heard afresh by a judge other than First-tier Tribunal Judge Gordon-Lennox.
Notice of decision
31. The First-tier Tribunal’s decision is set aside, and the appeal is remitted to the First-tier Tribunal for a fresh hearing.
Anonymity
32. I consider that an anonymity order is justified in the circumstances of this case having regard to the Presidential Guidance Note No 2 of 2022, Anonymity Orders and Hearing in Private, and the Overriding Objective. I make an order under Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Accordingly, unless and until a Tribunal or court directs otherwise, AK is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies to both parties. Failure to comply with this direction could lead to contempt of court proceedings.

Zane Malik KC
Deputy Judge of Upper Tribunal
Immigration and Asylum Chamber
Date: 3 April 2025