Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-003052 UI-2024-002994 UI-2024-003053 UI-2024-003057
UI-2024-003060

First-tier Tribunal Nos:

HU 61578 2023; IA/00273/2024
HU 61576 2023; IA/00272/2024
HU 61581 2023; IA/00274/2024
HU 61582 2023; IA/00275/2024
HU 61584 2023; IA/00276/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 March 2026

Before

UPPER TRIBUNAL JUDGE LANE

Between

Esaam Eldeen Elseed MK Muna
Mohamed Elhadi Abusin Omer
Omer Mohamed Elhadi Momin
Omer Mohamed Elhadi Dania
Omer Mohamed Elhadi Mohamed
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellants: Mr Jebb (appearing remotely from the RCJ, Belfast)
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 17 February 2026

DECISION AND REASONS

1. This is the judgment of the Upper Tribunal remaking the decision in the appellants’ appeal. Upper Tribunal Judge Rintoul set aside the First-tier Tribunal’s decision and the appeal passed to me following a Transfer Order to remake the decision.

2. Upper Tribunal Judge Rintoul set out the background of the appeal in his error of law decision:

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Farrelly promulgated on 12 May 2024, allowing fire respondents' appeals against decisions of the Secretary of State made on 21 September 2023 refusing them entry clearance to the United Kingdom.

2. The respondents are all citizens of Sudan, currently living in Cairo, Egypt. The first respondent is the wife of the second respondent; the remaining three respondents are their children. They sought entry clearance to join Ms Nahla Isam Eldeen Elseed Kheir ("the sponsor"), the sister of the first respondent and who has refugee status in the United Kingdom.

3. The Secretary of State refused the application by the first and second respondents under Appendix ADR of the Immigration Rules, acknowledging that although the applications were made under the family reunion route, that was no longer applicable since 9 July 2012. The Secretary of State refused the applications on the basis that there was no indication that the first respondent had any health conditions requiring long- term personal care nor were the financial requirements met.

4. The Secretary of State considered the applications by the third to fifth respondents (who are under the age of 18 years) under the Immigration Rules relevant to children seeking leave to enter to join relatives, in this case the sponsor. She concluded that the third respondent had not shown he could be adequately maintained by the sponsor without recourse to public funds or that there were compelling circumstances which would make his exclusion from the United Kingdom undesirable and that a refusal for entry clearance would not amount to a breach of his human rights. The Secretary of State refused the fourth and fifth respondents on similar grounds.

3. Upper Tribunal Judge Rintoul [22-23] preserved the following facts from the First-tier Tribunal’s decision:

22. The decision will be remade in the Upper Tribunal. The following facts are preserved:-

(i) The respondents are living in a precarious situation, in that they have no leave to
be in Egypt.

(ii) A family life exists between the respondents and the sponsor.

23. It will, however, be necessary for the respondents to provide additional material setting out their current circumstances in Egypt. It may well be that the situation on the ground has changed significantly since the appeal was heard.

4. Upper Tribunal Judge Rintoul found that the First-tier Tribunal had failed rationally to apply section 117B(3) of the 2002 Act:

(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a) are not a burden on taxpayers, and

(b) are better able to integrate into society.

5. I heard evidence from the sponsor (who appeared remotely from Belfast). She spoke in English and adopted her written statements as her evidence in chief. Cross examined by Mr Mullen , Senior Presenting Officer for the Secretary of State, the sponsor said that the appellants lived in constant fear in Cairo and that their situation had ‘been worse in the last few weeks.’ She clarified that statement by saying that the appellant’s were aware that ‘other people had been detained’ and ‘were awaiting removal’.

6. The standard of proof in the Article 8 ECHR appeal is the balance of probabilities. I found the sponsor to be a credible witness (Mr Mullen did not submit that I should do otherwise) but her second hand evidence of the circumstances of the appellants in Egypt attracts limited weight.

7. As regards the future financial resources which might be available to the appellants in the United Kingdom, Upper Tribunal Judge Rintoul had written at [19]:

As Mr Jebb submitted, there were funds available from the sponsor and the brother-in-law in the UAE. That, following Rhuppiah [2018] UKSC 58 at [55]ff, is capable of being sufficient, but it is also a requirement that the evidence of from third parties has to be credible and the support reliable. It is evident that the judge did not accept that it was. Given the finding identified at [18] above, the conclusion that the respondents would be financially independent by reliance on funds is inconsistent. It was to say the least, unduly speculative to conclude that the respondents would be financially independent through there [sic] own efforts.

Before the Upper Tribunal, the evidence regarding the financial position of the appellants was unchanged; I heard no additional evidence in respect of it. Mr Jebb referred me to the financial evidence which had been before the previous Tribunal. Consequently, I am in no better position than the First-tier Tribunal judge to conclude that the appellants would receive consistent and adequate financial support from third parties. Mr Jebb submitted that, whilst the appellants could not meet the Immigration Rules, it was ‘unlikely’ that they would need to rely on the State for support.

8. The principal subject of Mr Jebb’s submissions was the risk to the appellants, whilst living in Egypt, of refoulement to Sudan. He took me to several items of background material which indicated that there had been significant numbers of deportation to Sudan in recent years and the risks that the third, fourth and fifth appellants could be trafficked.

9. As regards section 117B (3) of the 2002 Act, Mr Jebb submitted that the family are from a professional background and, whilst they do not yet speak English, they would learn quickly following arrival in the United Kingdom. I am prepared to accept that they are likely to do so, but, at the date of hearing, their ability to integrate into society and to support themselves has not been established.

10. Both parties acknowledge that very exceptional or compelling circumstances have to be shown for entry clearance to be granted outside the Rules. The application of Article 8 ECHR in the context of entry clearance applications was considered recently by the Court of Appeal in IA [2025] EWCA Civ 1516. On the facts of that case, the Court of Appeal did not find that family life existed between the United Kingdom sponsor and the appellants (which is not the case in the instant appeal). However, the Court of Appeal made clear that it is important not to attach excessive weight to the circumstances abroad of appellants (even where the appellants are living in a ‘war zone’ [169]) or to allow sympathy for such circumstances to reduce the very significant weight attaching to the public interest. At [171-174], the Court of Appeal considered how it would have determined the Article 8 ECHR appeal had it found that family life existed:

171. We can deal with how we would have struck the proportionality balance, had the alleged family life existed, shortly.

172. In favour of the sponsor's brother and the family, we would have attached some, but not great, weight to the past (from the start of the Gaza conflict) and future family life (had it existed), since it was recently established, had not involved cohabitation, and had been recently revived and developed in the knowledge that it was contingent on the frankly unlikely event of obtaining entry clearance outside the Rules. We would have attached weight to the interests of the family in wanting to leave Gaza and to abate the risks and the humanitarian crisis that the family face there. We attach weight, but not paramount weight, to the best interests of those children of the family who are not adults. We would have attached some weight to the difficulties faced by the brother in Gaza, including his anti-Hamas profile and to the risks to his safety and the humanitarian position there. We would have attached some, but not great, weight to the anxiety and PTSD of the sponsor, and the plans he had made to accommodate the family.

173. All those factors relating to the family's individual case had to be balanced against the SSHD's policies as reflected in the Rules, to which considerable weight had to be attached at a general level. As we have said, very exceptional or compelling circumstances had to be shown for entry clearance to be granted outside the Rules. There were, to put the matter starkly, no exceptional or compelling circumstances here. The family life with the sponsor, recently revived, was short-lived and must have been developed in the knowledge that entry clearance might not be obtained. As we have now said repeatedly, this is not a question of floodgates or numbers likely to apply from war zones across the world. It is a question of respect for the UK's laws and democratic process, and for the SSHD's decisions as to what is necessary to protect the economic well-being of the UK and the rights of citizens of the UK. As a matter of fact, the policies of the SSHD did not include a Gaza resettlement scheme. Had it done so, the balance might, as we have said, been very different.

174. In our judgment, the proper balance we have described would have come down heavily in favour of refusing entry clearance and upholding the original decisions of the entry clearance officer and the FTT under article 8(2).

175. In this connection, we would agree in broad terms with the approach adopted by the FTT, as we have described it at [27] above. In particular, as the FTT correctly said, the positive factors "did not outweigh the public interest because "the creation in effect of resettlement policies for conflict zones is for the government and parliament"" and the "public interest was to respect the policy decision not to create a resettlement scheme".

11. Adopting the same approach, I attach weight, but not paramount weight, to the best interests of those children of the family who are not adults. I attach weight, but not significant weight, to the depth and extent of family life between the appellants and the sponsor and to their difficult circumstances in which they are living in Egypt. However, I find that the generic evidence concerning citizens of Sudan living without immigration status in Egypt, whilst seriously concerning, is, in the absence of up to date specific evidence concerning the appellants themselves of any imminent or very serious threat to them of harm or refoulement, not sufficient to establish very exceptional or compelling circumstances. As in the case of Gaza in IA, the public interest must be considered in the light of the fact that Parliament has not chosen to implement a resettlement scheme for citizens of Sudan living without status in Egypt. That fact reinforces the ‘considerable weight … to be attached at a general level’ to the public interest. I find that, on the basis of the evidence before me at the resumed hearing, the balance in the Article 8 ECHR proportionality assessment falls in favour of the public interest. In reaching that decision, I acknowledge the difficulties of appellants and the evident desire which they and the sponsor have to be reunited. I stress also that my decision is taken in the light of the evidence as it currently stands; it is, of course, possible that the appellants’ circumstances may deteriorate to the extent so as to render their circumstances very exceptional or compelling. However, that point has not yet been reached.

12. In the circumstances, I remake the decision dismissing the appeals of the appellants.

Notice of Decision

I have remade the decision. The appeals of the appellants against the decision of the respondent dated 21 September 2023 are dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 1 March 2025