Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-003380

First-tier Tribunal No: PA/56760.2023
IA/00592/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 September 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

JI
(ANONYMITY DIRECTION MADE)
Appellants
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr A Beech, counsel instructed by Nelson Singleton Solicitors
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 16 September 2025
Decision and Reasons
Anonymity
1. This appeal concerns a claim for international protection and the best interests of three children. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant 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. Failure to comply with this order could amount to a contempt of court.
Introduction
2. The appellant is a national of Nigeria. She arrived in the UK on 3 August 2021 and made a claim for international protection. The claim was refused by the respondent on 5 September 2023. The appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge Gillespie (“the judge”) on all grounds for reasons set out in a decision dated 28 May 2024.
3. The appellant claims the decision of the FtT judge is infected by material errors of law. In summary, three grounds of appeal are advanced. First, the judge made a perverse or irrational finding that the claim made by the appellant has all the hallmarks of a family initiative to improve the living conditions of the appellant and her children and to promote their education and development in this country. It is said the judge’s conclusion is based on a series of irrational findings. Second, and linked to the first ground of appeal, the appellant claims the conclusion reached by the judge is one that was not put to the appellant by the Presenting Officer and/or the judge and the appellant has therefore had no opportunity to address. Third, the appellant claims the judge erred in his analysis of the best interests of the children. Although this third ground of appeal was formulated on the basis of the decision of McCloskey LJ in CAO v SSHD [2023] NICA McC12081, Mr Beech maintains the judge erred in his analysis notwithstanding the decision of the Supreme Court in CAO v SSHD [2024] UKSC 32.
4. Permission to appeal was granted by Upper Tribunal Judge Mahmood on 19 August 2024.
The Hearing of the Appeal Before Me
5. Mr Beech adopted the Grounds of Appeal as pleaded insofar as the first two grounds of appeal are concerned. He submits the judge found the appellant was vague, evasive and not a witness of truth but does not give rational reasons for that conclusion. At paragraph [24] of the decision the judge said the appellant had not made claims in regard to the severity of treatment her husband allegedly received from the Nigerian state forces in her screening interview. However, in her screening interview, the appellant had outlined (Q. 1.19) that her husband was being ‘trailed’ and ‘traced’, and that he was always on the move. She had also said (Q. 4.1) that her husband had been telling her he feels he is being ‘trailed’ again causing a strain on their marriage. The brief information provided during the screening interview was expanded upon in the evidence before the Tribunal.
6. The judge also referred, at [24], to the ’13-page document’ that was in the respondent’s bundle concerning the risks faced by the children. The judge said, at [25], that it is not clear when that document was provided, but again, events allegedly connected with her husband are conspicuous by their absence. Mr Beech submits it is clear from the respondent’s bundle that the ’13-page document’ was one prepared by the appellant and submitted to the respondent on 27 September 2022. It was provided in response to a request for specific information regarding the risks to the children and there was therefore no need to refer to the problems faced by the appellant’s husband in that document. Standing back Mr Beech submits the judge failed to give adequate reasons for concluding the appellant was vague and evasive in giving her evidence. The judge failed to have regard to relevant evidence.
7. As far as the third ground of appeal is concerned, Mr Beech adopted the “Appellant’s Further Submissions” dated 23 January 2025 filed in response to directions made by Upper Tribunal Judge Mahmood when permission to appeal was granted. Mr Beech now accepts that in line with the decision of the Supreme Court in CAO v SSHD [2024] UKSC 32, the duty under section 55 is imposed on the respondent and not the Tribunal. However Mr Beech maintains that the FtT judge failed to have proper regard to the best interests of the children in reaching his decision. He submits the judge set out the legal framework at paragraphs [32] to [38] of the decision, and that although the judge set out, at [39], the relevant factors, he did not address them in accordance with what was said by the Court of Appeal in EV (Philippines) v SSHD [2014] EWCA Civ 874. The judge did not carry out any specific assessment of the children and their individual needs. The judge also made no reference to the evidence of the children themselves.
8. In reply, Ms Arif submits the judge was entitled to make the findings he did regarding the overall claims made by the appellant. The judge found the claim made by the appellant is entirely contrived. The judge’s observation that the claim has all the hallmarks of a family initiative to improve the living conditions of the appellant and her children and to promote their education and development in this country was an observation the judge was entitled to made for the reasons that he set out, and was one that the judge was not required to put to the appellant. Ms Arif submits the judge had regard to the best interests of the children in reaching his decision and he was not required to address each piece of the evidence in his decision. The judge plainly had sight of all the evidence as he records in his decision and he had in mind the correct approach to the section 55 duty. The judge reached a conclusion at paragraph [47] of his decision that was open to him based on all the evidence before the Tribunal.
Decision
9. It is helpful to take the first and second grounds of appeal together since there is a considerable overlap. The FtT judge recorded at paragraph [3] of his decision that the appellant has four dependent children aged 17, 14, 12 and 3, and that the respondent acknowledges their interests to be a primary consideration as far the appeal on Article 8 grounds is concerned. The judge recorded at paragraph [7] of his decision that the appellant’s claim is set out in the documentation contained on MyHMCTS and at paragraph [10] he summarised the issues in the appeal. At paragraph [12] the judge recorded that the task of the Tribunal is not merely to review the decision made by the respondent but to reach its own decision after hearing evidence.
10. The judge recorded the appellant’s immigration history at paragraph [13] of his decision. The appellant’s evidence is set out at paragraphs [15] to [22] of the decision. The FtT judge’s findings are set out at paragraphs [23] to [29] of the decision. The judge said at [23]:
“I had the opportunity of seeing and hearing the appellant give evidence and forming a view on the credibility of her claims. In giving her evidence she was vague, evasive, and on occasions affected not to understand perfectly intelligible questions put to her. I find she was not a witness of truth.”
11. The judge refers to the core of the appellant’s claim arising from her husband’s outspoken political views against the government. In summary, she claimed that her husband was detained in 2019 by the Nigerian Security Services for over a week and was tortured. He was said to have been released after signing an undertaking that he would not speak out against the government again. However, he continued to speak out against the government and was involved in organising protests by the EDSARs movement in October 2020. The appellant claims that the marches were repressed by the government and her husband feared he was being trailed and monitored by the security forces. The appellant claims her husband was invited to a meeting in late 2020, but refused to go fearing that he might be detained and tortured again. He left the family home and was constantly on the move, returning only occasionally to collect items. The appellant was left at the family home alone with the children. The appellant claims that no-one ever came to the house but she lived in constant fear. The children continued attending school and the appellant only left the house for essential journeys, such as getting food or hospital visits.
12. At paragraphs [24] to [29] of the decision the judge set out his reasons for rejecting the claims made by the appellant. I reject the claim made by Mr Beech that in considering the credibility of the appellant and the core of the appellant’s claim concerning her husband’s activities, the judge failed to have regard to what had been said by the appellant during the screening interview. I acknowledge that as Lord Justice Moore-Bick said in JA (Afghanistan) v SSHD [2014] EWCA Civ 450, the FtT judge has to consider with care the significance to be attached to answers given by an asylum seeker in screening interviews. However, whilst it is certainly the case that caution is to be exercised in reliance upon evidence given at a screening interview, the problem for the appellant here is that the appellant does not challenge what is recorded in the screening interview and there is no suggestion of a misunderstanding or mistake in the recording of her answer. I accept, as Mr Beech submits that the appellant said in her screening interview that her husband was being ‘trailed’ and ‘traced’, and that he was always on the move. The judge was plainly aware of what the appellant has said in her screening interview. However, the judge was right to say at paragraph [24] of his decision that the appellant did not make the claims in her screening interview regarding the severity of treatment her husband had allegedly received from the Nigerian state forces. There was no reference as the judge said, for example, however brief, to the appellant’s husband having been detained and tortured and having suffered injuries to his back.
13. Similarly, the judge referred at paragraphs [24] and [25] to the 13-paragraph document provided by the appellant. The judge noted that there is no reference to events allegedly connected with the appellant’s husband. Mr Beech submits the document was a response to information requested by the respondent concerning the children and the focus was therefore understandably on the children. Although I recognise the force in that submission, it cannot be said that any risk faced by the children is entirely divorced from the activities of the appellant’s husband. There is however no reference at all to the children facing any risk whatsoever because of the activities of their father or because of past events such as his detention and torture. It was neither irrational nor unreasonable therefore for the judge to have regard to the absence of any such claim, however brief, in that document.
14. I also reject the claim made by the appellant that the judge failed to have any regard to the appellant’s evidence that she had changed her travel plans and travelled to the UK without her husband until August 2021. The judge recorded the evidence of the appellant concerning her travel to the UK at paragraphs [13] and [14] of the decision. It is clear the judge had the claim made by the appellant in mind. The judge assessed the claims made by the appellant alongside the written statement of the appellant’s husband that is referred to at paragraph [26] of the decision. The judge’s analysis of the claim made by the appellant must be read in context and what is said at paragraph [27] of the decision. It was plainly open to the judge to conclude that the evidence points to the appellant’s husband shadowing the appellant and that the appellant has failed to give any credible explanation as to his whereabouts for the reasons given.
15. At paragraph [28] of his decision, the judge addressed the claims made by the appellant against the evidence that the appellant was able to remain in Nigeria between November 2020 and August 2021 and that her husband was able to travel in and out of Nigeria. The judge had in mind the appellant’s evidence that she herself had not received any threats from the security forces or been questioned about him. The findings made by the judge at paragraphs [28] and [29] and the conclusions he reached on the evidence, were rooted in the evidence. The FtT judge gives perfectly proper and adequate reasons for the decision that he reached having considered the evidence of the appellant. The findings and conclusions reached by the judge regarding the claims made by the appellant are neither unreasonable nor irrational.
16. A fact-sensitive analysis of the evidence regarding the claim for international protection was required. The judge identified the core issues in this appeal as set out by the parties. I am satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. In finding that the appellant’s claim is entirely contrived the judge reached a decision that was open to the Tribunal on the evidence and findings made.
17. Having considered the claims made by the appellant and found that the claim is entirely contrived, it was open to the judge to observe that the claim has all the hallmarks of a family initiative to improve the living conditions of the appellant and her children and to promote their education and development in this country. That was the judge’s view after he had considered the claims made and made his findings. The observation made by the judge after he had considered the appellant’s claim was not one that the appellant was required to address or have the opportunity to respond to, and no procedural unfairness arises. I find therefore that there is no merit to the first two grounds of appeal.
18. Turning to the third ground of appeal, the Supreme Court’s judgment in CAO v Secretary of State for the Home Department [2024] UKSC 32 was given on 23 October 2024 and post-dates the decision of the FtT Judge and the grant of permission to appeal. The Supreme Court considered how Tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment:
[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.
19. Mr Beech accepts the section 55(1) duty is imposed on the respondent and not the Tribunal. He accepts the decision of the FtT cannot be impugned on the basis that the judge himself did not have regard to sections 55(1) and (3) or the statutory guidance as previously claimed in the grounds of appeal.
20. I reject the claim that the FtT judge failed to have appropriate regard to the best interests of the children and the relevant factors, in accordance with what was said by the Court of Appeal in EV (Philippines) v SSHD. In EV (Philippines) v SSHD, the Court of Appeal confirmed that there could be cases where it is in the child's best interests to remain in education in the UK even though one or both parents did not remain. In determining whether the need for immigration control outweighed a child's best interests, it is necessary to determine the relative strength of the factors which make it in their best interests to remain, and also to take account of any factors pointing the other way. If it is overwhelmingly in the child's best interests to remain, the need to maintain immigration control could well not tip the balance, but if it is in the child's best interests to remain, but only on balance, the result could be the opposite. On the other side, strong weight is to be given to the need to maintain immigration control, and to the fact that the applicants had no entitlement to remain. Such cases are therefore inevitably fact-specific. Lewison LJ said:
“58. … the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?
59. On the facts of ZH it was not reasonable to expect the children to follow their mother to Tanzania, not least because the family would be separated and the children would be deprived of the right to grow up in the country of which they were citizens.
60. That is a long way from the facts of our case. In our case none of the family is a British citizen. None has the right to remain in this country. If the mother is removed, the father has no independent right to remain. If the parents are removed, then it is entirely reasonable to expect the children to go with them. As the immigration judge found it is obviously in their best interests to remain with their parents. Although it is, of course a question of fact for the tribunal, I cannot see that the desirability of being educated at public expense in the UK can outweigh the benefit to the children of remaining with their parents. Just as we cannot provide medical treatment for the world, so we cannot educate the world.”
21. Here, the judge referred to the section 55 duty at paragraph [34] of his decision and noted, at [35], that the best interests of a child are a primary but not a paramount consideration. Referring to the decision of the Upper Tribunal in Azimi-Moayed v SSHD [2013] UKUT 197(IAC), at paragraph [38] he said:
“In considering a child’s best interests the starting point is generally that it is in the best interests of children to be with both parents and to have stability and continuity of social and educational provision; and the benefit of growing up in the cultural norms of the society to which they belong”
22. The judge referred to the decision of the Court of Appeal in EV (Philippines) and at paragraph [39] the judge set out the relevant factors. At paragraph [40] the judge referred to the claim that the youngest child requires the support of a speech and language therapist but the respondent does not accept that he could not receive adequate care and support in Nigeria. At paragraphs [42] to [46] the judge referred to the submissions made on behalf of the appellant, and at paragraph [47] the judge said:
“I have considered the issues against cited case law and principles. It is gross hyperbole to use the word catastrophic in this case. The appellant is clearly fully committed to the welfare of her children and I believe that is also the case with their father who remains in the background. Many children travel overseas with their parents for extended periods of time for occupational and other reasons, and then have to return to their country of origin or move elsewhere, and 2 years 5 months (or 2 years and 10 months) is by no means an exceptional period or frankly anything approaching it. It is far short of the 7 years that would lead to them being qualifying children. Even if they were qualifying children it would be necessary to prove that it would not be reasonable to expect them to leave the UK. The appellant is a university graduate and has therefore been educated to a high standard herself in Nigeria. All the children were in schools in Nigeria and I am struck by the fact that their father in the visa application said he intended to spend £20,000 on his three week holiday to the UK (page 133 respondent’s bundle). I am left to wonder who in the world can spend that sort of money on a family holiday other than the very wealthy. If the family have this sort of resources then there is no reason why the very best education and opportunities that Nigeria affords cannot be secured for them. They are not British citizens and are not entitled to future education in the UK. But that is no major disadvantage when their best interests are weighed in the balance. I accept the appellant can present their case on their behalf. There are no other issues that are inherently more significant than their best interests but there are other issues that outweigh their best interests. Their mother’s claim is wholly without merit for a start. The economic welfare of the country spelled out in 8(2) is a further issue. This country is not available to school all the children of the world. I find their best interests are with their parents in Nigeria and removing the family to Nigeria will not breach their Article 8 family life rights.”
23. It is uncontroversial that the best interests of a child are an integral part of the proportionality assessment under article 8 ECHR. In ZH (Tanzania) v Secretary of State for the Home Department , Lady Hale confirmed that the best interests of a child are “a primary consideration”, which, she emphasised, was not the same as “the primary consideration”, still less “the paramount consideration”. As a starting point the judge readily accepted that the best interests of a child are usually best served by being with both or at least one of their parents. In paragraph [33] of her judgement in ZH (Tanzania) Lady Hale said that the best interests must be considered first but can of course be outweighed by the cumulative effect of other considerations, including factors such as the need to maintain firm and fair immigration control, coupled with a person’s immigration history.
24. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. The decision should be respected unless it is quite clear that the judge have misdirected themselves in law. In reaching his decision the judge was not required to refer to each piece of evidence before the Tribunal. Contrary to what is said by Mr Beech, I am quite satisfied that the judge had regard to the best interests of the children as a primary consideration in reaching his decision.
25. The judge identified the core issues in this appeal. The Judge undoubtedly had regard to the best interests of the children as a primary consideration and applied the correct test. The assessment of an Article 8 claim such a claim is always a highly fact sensitive task. The judge was required to consider the evidence as a whole and in my judgment he plainly did so, giving adequate reasons for his decision. The requirement to give adequate reasons means no more nor less than that. It is not a counsel of perfection. An appellate court should resist the temptation to subvert the principle that they should not substitute their own analysis and discretion for that of the judge by a narrow textual analysis which enables it to claim that the judge misdirected themselves.
26. Reading the decision as a whole, I am satisfied that the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.
27. It follows that I am satisfied that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
28. The appellant’s appeal to the Upper Tribunal is dismissed.
29. The decision of First-tier Tribunal Judge Gillespie dated 28 May 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 September 2025