Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Number: UI-2024-003422
First-tier Tribunal No: HU/54361/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th April 2025

Before

UPPER TRIBUNAL JUDGE MCWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE KELLY

Between

SS
(ANONYMITY ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Broachwalla, Counsel instructed by Lawrence Kurt Solicitors.
For the Respondent: Ms Everett, Senior Home Office Presenting Officer

Heard at Field House (by live link from Birmingham) on the 1st April 2025

Order Regarding Anonymity

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 member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of India. The respondent refused her human rights claim on the 17th March 2023 and her appeal against that refusal was dismissed by First-tier Tribunal Judge Hena on the 23rd June 2024. The appellant was granted permission to appeal against Judge Hena’s decision, hence the matter came before us.
Background
2. The essence of the appellant’s original human rights claim was that whilst residing in the United Kingdom with limited leave to remain as a student, she formed a relationship with JK, an Afghan citizen who had been granted asylum in the United Kingdom. The respondent refused that claim on the basis that the appellant did not meet the immigration eligibility requirements for leave to remain under the Immigration Rules, and neither did she meet the test under EX.2. of Appendix FM of “insurmountable obstacles” to her return (the test applicable to those seeking leave to remain on family life grounds). However, between the date of her application and the hearing of the appeal, the appellant gave birth to a son (HV). HV is not a British citizen. However, his father (who is not JK) has settled status in the UK. The appellant’s representative argued at the hearing that the birth of HV was not a “new matter”. The respondent’s representative disagreed but nevertheless consented to the Tribunal taking account of it in determining the appeal.
Findings of the First-tier Tribunal
3. In summary, the First-tier Tribunal Judge found that the appellant had not substantiated the following claims that she had made in support of her human rights claim, namely, (a) that JK would not be permitted, as an Afghan national, to relocate with the appellant to India, (b) that she would be without a network of support on return to India (the judge finding that she would have support from her network of friends if not from the family members in India from whom she claimed to be estranged), and (c) that HV’s father had a meaningful parental relationship with his son by way of direct contact and/or that he would not consent to his son leaving the UK [31, 32, 34].
The grounds of appeal.
4. The grounds of appeal are discursive but may be conveniently summarized as follows:
(1) The judge failed correctly to apply the test of whether there were “insurmountable obstacles” to the appellant’s return, namely, as to whether her return would entail very serious hardship for her and her partner (JK);
(2) It was procedurally unfair for the judge to place little weight on the statement of HV’s father without giving the appellant an opportunity to call him to give oral evidence at an adjourned hearing;
(3) The judge failed to consider whether there would be “very significant obstacles” to the appellant’s integration on return to India in accordance with the test contained at paragraph 276ADE (vi) of the Immigration Rules.
Analysis
5. We take the grounds as they were argued by Mr Broachwala in turn.
6. Mr Broachwala submitted that the judge erred in her assessment of the balance to be struck under the ‘family life’ limb of Article 8 of the European Convention of Human Rights and Fundamental Freedoms by failing to consider two specific factors.
7. Firstly, the judge failed to consider the possibility of a future application for HV’s registration as a British citizen given that his biological father has settled status in the UK. This is not something that featured in the Appellant’s Appeal Skeleton Argument, and Mr Broachwala (who did not appear below) was unable to say whether this was argued in the First-tier Tribunal. We do not therefore think that the judge can be criticised for failing to consider it. We in any event agree with Ms Everett’s submission that potential registration as a British citizen is too remote to be considered a relevant factor in the Article 8 balancing exercise. It may be that HV’s registration as a British citizen will not happen until he reaches the age of majority, and it may not happen at all. We are fortified in our view of this by the fact that qualification for registration as a British citizen does not fall within the definition of “a qualifying child” under either the Immigration Rules or section 117B(vi) of the Nationality, Immigration and Asylum Act 2002.
8. Secondly, Mr Broachwala argued that the judge had failed to consider the potential problems to integration posed by the fact that the appellant would be returning to India with her partner as an unmarried mother of a small child. There are two problems with this argument. Firstly, there does not appear to have been any background country information before the Tribunal concerning societal attitudes to unmarried mothers in India. Secondly, the judge made a specific finding that the appellant had a network of friends in India who were “accepting of her lifestyle” [paragraph 29].
9. Turning to the second ground, this is pleaded on the basis that once the Respondent had consented to the birth of HV being considered by the Tribunal within the present appeal, the judge ought to have offered the appellant an opportunity to call HV’s biological father to testify as to his relationship with his son and to adjourn the hearing for that purpose. We disagree. The Appellant had plainly attended the hearing with the intention of arguing that the parental relationship between her son and his biological father was something that significantly changed the balance of the Article 8 assessment in her favour. It was therefore incumbent upon her to advance cogent evidence to support that argument, and the judge cannot be criticised for finding that she had failed to do so.
10. Mr Broachwala however put the second ground slightly differently to the Appellant’s pleaded case. He suggested that the judge had taken an inconsistent approach to the absence of HV’s biological father at the hearing by, on the one hand, accepting that the appellant had failed to provide DNA evidence of their relationship due to the uncertainty surrounding the admissibility of ‘the new issue’ [paragraph 30] and, on the other, discounting the weight attaching to the father’s written statement due to his non-attendance at the hearing [31]. We do not find there to be any such inconsistency. In relation to the paternity issue, the judge clearly accepted that the appellant had established this on the basis of HV’s birth certificate alone, whereas the judge considered that further evidence (such as photographs of them together) was necessary to show that father and son had a relationship that extended beyond the mere biological. It was a matter for the judge to decide whether the evidence relied upon was sufficient to prove the different issues that were before her. We moreover consider that the judge was entitled to take account of the absence of any direct evidence from HV’s father in support of the appellant’s claim that he would not consent to HV moving to India.
11. Turning to the third and final ground, namely, that the judge failed to consider the appellant’s private (as opposed to family) life in the United Kingdom, and thus failed to consider whether this might pose “very significant obstacles” to her integration on return to India [paragraph 276ADE of the Immigration Rules]. As with argument concerning the question of HV’s potential registration as a British citizen, this was not a matter that had been raised by the Appellant in her Appeal Skeleton Argument, and neither is there any evidence that it was raised in oral submissions. Moreover, we are not satisfied that the absence of specific reference to the “very significant obstacles” test was material to the outcome of the appeal given that the judge made a reasoned finding that the appellant had a network of friends in India who would support her [see paragraph 8, above, and paragraph 29 of the First-tier Tribunal’s decision].
Notice of Decision
12. The appeal is dismissed, and the decision of the First-tier Tribunal therefore stands.

David Kelly Date: 1st April 2025

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber