UI-2024-003734 & Ors.

• Status of case: Unreported
• Hearing date: 15 Dec 2025
• Promulgation date: 23 Mar 2026
• Publication date: 09 Apr 2026
• Last updated on: 09 Apr 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-003734
UI-2024-003735
UI-2024-003737
UI-2024-003738
UI-2024-003741
First-tier Tribunal No:
HU/54748/2023, LH/03963/2023
HU/54718/2023, LH/03954/2023
HU/54762/2023, LH/03963/2023
HU/54755/2023, LH/03962/2023
HU/54767/2023, LH/03960/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 March 2026

Before

UPPER TRIBUNAL JUDGE OWENS

Between

EU, MU, EU, EU and NU
(ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr Draycott instructed by Pristine Law
For the Respondent: Ms Rushforth, Senior Presenting Officer

Heard at Cardiff Civil Justice Centre on 15 December 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants and the sponsor are granted anonymity.

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


DECISION AND REASONS
1. In an error of law decision dated 9 September 2025 (annexed to this decision at Annex A), a panel of the Upper Tribunal set aside a decision of First-tier Tribunal dated 10 May 2024, dismissing the appellants’ appeals pursuant to Article 8 ECHR for the reasons given in that decision.
2. The appellants’ appeal now comes before me to be remade pursuant to s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
3. The issue before the Upper Tribunal in this case is whether it is a disproportionate breach of Article 8 ECHR to deny the appellants entry to the UK. For the reasons which follow, I conclude that it would not.
Background and chronology of appeal
4. The appellants are all citizens of Afghanistan. The first appellant is the mother of the remaining appellants, all of whom are young children (born between 2014 and 2019 aged 11, 9, 7 and 6). The youngest child is female; the others are male. The appellants live in Afghanistan and have never been to the UK.
5. The first appellant is married to a citizen of Afghanistan, (“the sponsor”), who lives in the United Kingdom and has Indefinite Leave to Remain (“ILR”). The sponsor claimed asylum in the UK in 2006 as an unaccompanied minor. He received a grant of Humanitarian Protection on 8 October 2008 and was granted ILR on 19 November 2013.
6. The sponsor married the first appellant on 20 December 2013 in Afghanistan, a month after he was granted ILR. The second, third, fourth and fifth appellants are the sponsors’ children.
7. In 2019, the appellants (other than the 5th appellant who was not yet born) applied for entry clearance to join the sponsor in the UK under Appendix FM of the immigration rules. The first appellant’s application was refused on suitability grounds pursuant to S-EC 2.2(a) on the basis that a false English language test certificate was submitted with the application. The applications by the other appellants were refused pursuant to E-ECC 1.2 because their parent in the UK did not have leave under Appendix FM and their mother in Afghanistan had been refused leave under Appendix FM. The appellants did not appeal against these decisions.
8. On 4 August 2022, the appellants applied again for entry clearance, this time under the family reunion provisions of the rules. The applications were ultimately refused on 3 January 2023.
9. The first appellant’s application was refused for the following reasons:
a. the previous use of a false document which meant that Part 9.7.2 of the immigration rules applied;
b. the humanitarian protection family reunion requirements were not satisfied because the marriage posted-dated the sponsor’s departure from Afghanistan;
c. there was no evidence of the first appellant falling within a cohort of people called forward for evacuation from Afghanistan; and
d. refusing entry would not constitute a disproportionate interference with her family life.
10. The applications by the remaining four appellants were also refused under paragraph 352FG of the immigration rules because they were not part of the family unit at the time the sponsor left his country of habitual residence. Secondly it was not considered that a denial of entry would constitute a disproportionate interference with their family lives because they have always lived with their mother in Afghanistan with visits from their father.
Issues in the appeal
Agreed issues
11. Mr Draycott indicated at the outset of the hearing that he would not pursue the arguments in respect of the appellant’s entitlement to be included in the ACRCS Pathway 1.
Issues still in dispute
a. Do the suitability provisions at 9.7.2 apply to the first appellant? This is relevant to the proportionality balancing exercise.
b. The best interests of the children.
c. Was there historical injustice in 2019 because the second to fourth appellants were erroneously refused under the immigration rules?
d. Is it a disproportionate breach of Article 8 ECHR to deny the appellants entry to join the sponsor in the UK?
Documentary evidence
12. I had before me the original respondent’s bundles and reviews (the latest of which was dated 28 March 2024) as well as the Document Verification Report (“DVR”). The appellant uploaded a PDF bundle of 587 pages which included the bundles before the First-tier Tribunal, additional 184- and 83-page supplementary bundles as well as an authorities bundle. I also had before me Mr Draycott’s skeleton argument which referred to various authorities and CPINs.
Oral evidence
13. Mr Draycott applied for the sponsor to be treated as a vulnerable witness in light of the medical evidence and photographs of his current medication. Ms Rushforth did not oppose the application. I am satisfied that the sponsor has anxiety. I agreed to treat the sponsor as a vulnerable witness in accordance with the Practice Direction on “Child, vulnerable adult and sensitive witnesses”. It was agreed that the questions put to the sponsor would be straightforward and I informed the sponsor that he was able to take breaks.
14. The sponsor gave his evidence in Pashtu through a court appointed interpreter. He confirmed that he understood the interpreter. He adopted the statements made in support of his asylum claim and his four witness statements with an amendment which stated that the English language test certificate submitted with the application “did not match” the certificate uploaded by the test centre.
15. He was cross examined by Ms Rushforth. His evidence is recorded in the record of proceedings, and I will summarise it below and refer to it when making my findings. There were no further witnesses.
16. The sponsor’s evidence was that his family are currently living in Chamkani in Patkia province (adjacent to the Pakistani border) in rented accommodation. They live with his wife’s 13-year-old brother. The accommodation is not suitable for his wife and children because it is not safe. They are not able to get to the doctor, access medical treatment or food. His sons go the local school. The sponsor is concerned that they are being indoctrinated by the Taliban. His wife is not allowed to leave the house without a chaperone and is suffering from anxiety and depression which is getting worse. She is also worried about kidnappings. He is worried about his children’s future. His children cry over the phone. His daughter attends school but will only be able to attend until Year 6. She has aspirations that she cannot achieve in Afghanistan.
17. He also said in his oral evidence that his family “are moving” and that his family sometimes live in Paktia and at other times in Kabul. He said that his wife keeps “changing place” because she does not want the Taliban to know her location. He said that the family moved to Kabul in 2018 and rented a two-bedroom flat there. He last saw his family in Iran in 2025. He was with them from May 2025 to August 2025. They obtained a three-month visa to live in Iran. He wants to bring his children to the UK. In re-examination he said that his wife’s father is now dead and her mother very old.
Findings
Credibility
18. The sponsor was not an impressive witness, even taking into account his poor mental health. He was asked how many times he had been to see his wife since December 2013 and he initially said three or four times. He said he did not remember – perhaps 2014, 2015 and 2016. When it was put to him that he must have been in Afghanistan when his children were conceived in 2017 and 2018, he reluctantly conceded that he also returned to Afghanistan in these years too. He said he last went in 2020. I am satisfied from the sponsor’s eventual concession and his passport stamps that he has been to Afghanistan for a long visit every year between 2013 and 2020. The sponsor’s family are very important to him, and I find that he would know that he had visited Afghanistan every year. His poor mental health does not account for his initial failure to mention these annual visits. He has not provided a schedule of the dates he has visited or any details of where he stayed or what he did. His witness statements contain a lack of detail in this respect. I find that his reluctance to be forthcoming about his trips to Afghanistan is not because of poor memory or mental health issues but because he wants to play down his connection to Afghanistan because he knows that such regular visits are inconsistent with him continuing to have a subjective fear of serious harm.
19. There were major inconsistences between the sponsor’s evidence in his witness statements, oral evidence and the appellants’ application forms about the family’s living circumstances. Both the sponsor and the first appellant come from Ziranai village in Laghman. This is what the sponsor asserted in his screening interview and asylum interview on his arrival in the UK and it is recorded in his passport as his place of birth. The marriage certificate also records that both of them were born in Ziranai. The sponsor’s children were all born in Laghman province which is consistent with this. In her latest application form dated August 2022 the first appellant states that she lived in Ziranai and then moved to Chamkani in August 2021. In his statement dated 9 December 2025, the sponsor said that the family are currently located in Chamkani in Paktia province close to the border with Pakistan. He said they live with the first appellant’s brother. The family also all relocated to Iran for a period between January and March 2023. In his oral evidence he said that he went to visit them in Iran in 2025.
20. In his latest statement, dated 9 December 2025, the sponsor said that he supports the family financially from his work as a taxi driver and that he cannot afford housing elsewhere such as Kabul which is very expensive. In an earlier statement, dated 8 August 2023 he said that he moved his family to a rented two-bedroom property in Kabul in 2018, which is inconsistent with the remainder of the evidence about the family living in Laghman. The original skeleton argument dated 9 August 2023 also asserts that the family are living in Kabul (12f). In re-examination the sponsor was asked where he stayed in Afghanistan when he visited his wife and he responded that he stayed mainly in Kabul when he visited his wife. In March 2024, Dr Masoud recorded that the first appellant had told him that the sponsor did not have money to buy or rent a house in Kabul and that she had moved to Paktia province to live with her father.
21. The sponsor then gave oral evidence that his family currently mainly live in Paktia but sometimes live in Kabul. There is a rented property in Kabul and that the first appellant and the children travel between Kabul and the village to avoid the Taliban finding out her location. He also said, “she keeps changing places” and “if she sees a problem she moves from there”. This evidence is internally inconsistent and does not correspond well to the sponsor’s earlier oral evidence that his wife is housebound and isolated and that his children attend school. These inconsistencies cannot be explained away by the sponsor’s poor mental health. He speaks to his family every other day and would be aware of precisely where they are living.
22. These inconsistencies casts doubt on the sponsor’s general credibility, and I treat his evidence with considerable caution.
English language certificate
23. In 2019 the application was refused under S-EC2.2(a) because a false English language certificate was submitted with the application. The certificate confirms that the overall result was given on 4 May 2018 and the result was issued on 9 May 2018. A DVR check was carried out on 20 May 2019. The verification checks confirmed that the document was false. The certificate submitted with the entry clearance application contained the first appellant’s photograph. The certificate issued by the AEO in Pakistan contained the photograph of a different individual. This document was provided in December 2023 in response to directions. The candidate’s test day photograph is of a totally different individual, and the document was provided directly from the IELTS website. I am satisfied that the respondent has produced reliable evidence that a deception has taken place. Mr Draycott accepts in his skeleton argument that the evidential burden has been met
24. It is agreed that in order for the suitability requirements to be made out it is for the respondent to demonstrate on the balance of probabilities that there was a deliberate attempt to deceive on the part of the first appellant. Mr Draycott submits that the evidence is not sufficient to meet the substantive legal burden. This, he submits, is because; the respondent has not explained how the first appellant perpetrated the dishonesty; did not clarify if a voice recording was ever made of the language test or whether they have subjected these to any analysis (notwithstanding their duty of candour); and that despite the respondent indicating in 28 March 2024 that investigations are ongoing, the respondent has failed to disclose any further information. He also pointed to the fact that the first appellant is of good character and is unable to give evidence in the proceedings because consent cannot be given for her to give evidence from Afghanistan. He also made reference to a letter from the IELTS investigation team which I will refer to below.
25. I am satisfied that it reasonably clear that the respondent’s position is that the person who sat the test in the first appellant’s name was not in fact the first appellant and that the certificate presented in support of the wife’s application was a fraudulent document. The existence of the certificate with a photograph of the candidate who sat the test who is not the first appellant is manifestly sufficient evidence that a fraud took place. The respondent does not have to prove exactly how the fraud took place and there was no obligation on her to obtain voice recordings (the evidence in the ETS cases was different, consisting of data entries based on voice recordings- there were no photographs). Although the respondent has provided correspondence to the test centre in respect of further enquiries, the lack of disclosure of any follow up is not fatal to the respondent establishing the legal burden.
26. The sponsor’s evidence is that he made all the arrangements for the English language test, he researched it, booked it, paid for it and told his wife what to do. The first appellant was not able to give evidence from Afghanistan because of the lack of permission but there was also a medical report before me that she lacks capacity to give evidence in court proceedings. In these circumstances, I am satisfied that the sponsor is able to give evidence on this issue.
27. The sponsor’s assertion is that his wife took the test and that there must have been some mistake from the test centre and/or that he has been the victim of fraud.
28. In his original witness statement dated 21 September 2022 which accompanied or was submitted shortly after the application was made in August 2022, the sponsor said that his wife had not been to school and was illiterate. He raised this issue with his previous representatives and told them that his wife would not be able to learn English because of her mental capacity. He was told that the test was oral and the appellant’s speaking and listening skills are tested. He asked friends in Bristol who told him about a test centre in Peshawar. He had to go to a specific test centre. He said his wife went to the centre and registered herself. They suggested she take a short course and demanded payment. His wife went for five consecutive days. She was provided with a certificate which bears all of her correct details and photograph. He said, “there was no reason to doubt the veracity of this certificate”. He said that he was devastated to learn that the applications were refused because the certificate did not match the one issued by the test centre. His wife confronted the test centre and was treated badly. He said that he came to the UK as an unaccompanied asylum-seeking child, was raised in foster care and was unfamiliar with the spouse application process. He had not been to Pakistan and was not aware of how the system worked. He blamed the error on the greed of the test centre in Pakistan.
29. In his second witness statement dated 8 August 2023 he said that the English language rule came into force in July 2012 and he was not aware of it at that time. His wife could not pass the English language test due to her illiteracy and poor mental health. She was not able to learn English.
30. In his third statement dated 6 November 2023, he said that his wife travelled back to the test centre and asked for clarification, but they denied any wrongdoing. He asked for a letter from the AEO to confirm that the certificate is genuine. A letter was issued dated 26 September 2019. (The letter is produced in the bundle which was uploaded to the First-tier Tribunal on 6 November 2023). The appellant is adamant that neither he nor his wife had any intention to deceive, defraud or provide the Home Office with a document the veracity of which was doubtful. He asserts that he booked the test, paid the fees, his wife did the course, and his wife was issued with a certificate.
31. The sponsor’s oral evidence was that his wife travelled to Pakistan for six weeks to learn English and was given a certificate by the test centre. He said the evidence of his wife’s flights and visas to Pakistan were with the solicitors. The certificate showed that his wife had passed the test.
32. Although the first appellant did not make a statement for the appeal or give evidence, she did discuss the English language test result with her treating psychiatrist. His opinion was that she would not be able to give evidence in court proceedings but that in a relatively calm setting with him, she was able to express the causes of her mental health. Dr Masoud reported her account as follows: “After marriage her husband said he would only take her if she passes English language test. She studied very hard, learnt some English although she had never been to school. By the time she learned some English language, she was mother to four children. She sat a test in Islamabad Pakistan and passed the test. She then applied for a visa to join her husband in the UK”. From this conversation I find that the first appellant was manifestly aware of the importance of this test.
33. I am not satisfied that the test centre issued an incorrect/ false English language certificate by mistake and without the knowledge of the sponsor and first appellant. I find that it is more likely that the certificate submitted with the entry clearance application was falsified in order for the first appellant to be able to demonstrate that she met the requirements of the immigration rules so that she could join her husband in the UK.
34. Firstly, I reject the sponsor’s evidence that he had no reason to believe that the certificate was not genuine. According to the certificate his wife had passed her English language test to level A1. The sponsor has lived in the UK since 2006 and can speak English. He knew the significance of the certificate. In his statement he acknowledged that he only found out about this rule in 2012. He also conceded in his witness statements that his wife has lived in Afghanistan all her life, has not attended school, is illiterate and would not be able to learn English. He also refers to her limited mental capacity. (The covering letter to the current application asserts that she is not able to pass the English language test). I note here that the medical report from her treating psychiatrist also describes the first appellant as having cognitive impairment and being extremely slow in processing information which is also inconsistent with her having the ability to pass the English language test. I take into account Mr Draycott’s submission that Dr Masoud’s report suggests that the first appellant’s cognitive impairment was relevant to her actual state of knowledge or belief which is material to whether she behaved dishonestly and that “she is likely to suffering from clinical depression when she took her language test”. I find that although the first appellant did not have capacity to give evidence in court proceedings, she does not lack capacity in general. Although slow she has an understanding of her circumstances. (I deal with Dr Masoud’s report below).
35. However, from the contents of the letter, the first appellant was evidently able to engage with the doctor and explain her concerns to him about being separated from her husband and also aware of the importance of the English language test.
36. I am satisfied on the balance of probabilities that both the sponsor and the first appellant knew in these circumstances that, as an individual who did not speak any English, without any education and with poor mental capacity, she would not be able to pass a test to the appropriate level within 5 days which is the amount of time the sponsor said in his witness statements (as opposed to 6 weeks in his oral evidence) that his wife took to prepare for the test in Pakistan. The sponsor admits as much in his witness statements, and it is clear from what the first sponsor told her doctor that she was also aware of these requirements. I find that both the sponsor and the first appellant knew that she would not be able to meet these requirements of the rules and therefore had the motivation to obtain a false English language certificate. I do not accept that the sponsor had no reason to believe the certificate was not genuine. He had every reason to believe it was not genuine in these circumstances. I also find that the first appellant would know about the deception because she knew she had not sat the English language test.
37. I do not accept the sponsor’s assertion in his witness statement that he had not visited Pakistan, was naive and knew nothing of the procedures. His first Afghan passport was issued in London on 2 June 2009 when he was 19 years old. The passport stamps show entry and exit stamps from Islamabad airport in 2009 and 2010 and entry and exit from Peshawar airport in 2012. There are other stamps to Pakistan including in May 2018. The sponsor eventually agreed in his oral evidence that he travelled to Afghanistan every year after he married his wife (apart from Covid) and these trips are supported by stamps in both his first and his second Afghan passport issued on 12 February 2018. He was a frequent traveller to the region. He was familiar with making immigration applications at least from within the UK, his evidence is that he knew the requirements of the rules in respect of the spouse visa, he spoke to other Afghan nationals in Bristol and sought advice. He contacted a specific test centre to obtain the certificate. I do not accept his explanation that he was naïve and would not have realised that some kind of fraud had taken place.
38. There was also a distinct lack of detail about the journey the first appellant made to Pakistan to take her test, where she stayed and what arrangements were put in place for her children whilst she was taking the test. The sponsor said the evidence was with his solicitor, but it has not been produced in the bundle.
39. On her visa application form dated 4 August 2022, the first appellant was asked if she had travelled abroad and she declared that she had travelled to Pakistan on only one occasion for one day in order to submit her visa application. The form does not mention the five-day visit to take her English language test in 2019. If the first appellant had travelled to Pakistan to sit an English language test this would have been a significant event, particularly as both she and the sponsor knew she needed to pass the test (whether if she went for 5 days or 6 weeks). I do not accept the sponsor’s explanation that she accidently missed this information off her form yet remembered to declare a one-day visit to Pakistan to submit a visa application. Neither does the application form mention travelling back to Pakistan to confront the English language centre which was the sponsor’s evidence in two of his witness statements, nor is there any information about being admitted to a hospital in Peshawar in Pakistan for seven days in March 2022 or visiting the Lady Reading Hospital on 22 May 2022 which would also have been significant visits. I find that it is more likely that the first appellant did not declare these visits because she did not in fact travel to Pakistan to sit an English language test (or go to hospital). This is consistent with the lack of detail about the arrangements for the trip and the lack of evidence that the first appellant travelled to Pakistan such as tickets or visa stamps.
40. Also of concern, is the letter said to be obtained from the Investigation Department of the AFO dated 26 September 2019 but not referred to in the sponsor’s statement until 6 November 2023 which was adduced for the first time in the supplementary bundle for the appeal hearing at the First-tier Tribunal.
41. In the respondent’s third review the respondent raises concerns about this document which is illegible in some parts. Mr Draycott sought to rely on it as evidence that no fraud had taken place. I agree with the respondent that the letter is riddled with grammatical errors which would be odd for an organisation investigating a fake English language test. It also states that “after an investigation there is no concern regarding the test which the appellant sat”. There is a lack of detail in respect of what the investigation entailed. I find that the date of the letter is inconsistent with the DVR. The first appellant’s results were cancelled when the issue regarding the fake certificate was brought to the attention of IELTS. Confirmation was given on 7 May 2019. However, the letter which is dated 26 September 2019 fails to acknowledge that the results were cancelled. In accordance with the principles of Tanveer Ahmed v SSHD [2002] UKAIT 00439 I give little weight to this piece of evidence. The timing of the production of this evidence is also dubious.
42. I have also made negative findings on the sponsor’s credibility above because of the lack of transparency about his visits to Afghanistan and the inconsistencies in his evidence.
43. Having undertaken a holistic evaluation of all of the evidence in respect of the deception, I am satisfied that the respondent has met both the evidential and legal burden to the standard of the balance of probabilities that the first appellant used deception in that she knowingly submitted a false document in respect of the English language test in support of her 2019 application. I am satisfied that 9.7.3 applied to her 2022 application. The application fell for refusal under the mandatory grounds of refusal.
44. I find that the first appellant came nowhere near meeting the refugee reunion requirements of the rules because not only was the marriage entered into after the sponsor left Afghanistan, but she used deception in a previous application.
45. I also find that this is additional support for Ms Rushforth’s submission that the sponsor is not a credible witness. I am satisfied that he is not a truthful witness.
Sponsor’s health
46. I find from the medical evidence before me that the sponsor has chronic Hepatitis B, hypertension, mild left ventricular hypertrophy, a history of palpitations, anxiety and depression and F3 liver fibrosis. He takes Entecavir for Hepatitis B which is negligible. He has been advised to lose weight and modify his lifestyle for his liver function to be stable. He takes medication for his blood pressure. He is also prescribed sertraline although he did not claim to be having counselling. I take into account that the medical evidence is dated 2022 but I do not see why there would be any improvement in the intervening period, and I have had sight of the sponsor’s current prescriptions. Dr Brown, Dr Archer and Dr Mani all conclude that it would be beneficial for the sponsor to remain in the UK in terms of his health and I accept that is likely to be the case because he is being supervised by specialists and the care he receives in the UK is likely to be superior. I accept that the sponsor continues to be worried and anxious about his family and that the separation is causing him anguish and stress which is affecting his physical health. He was particularly stressed in 2021 when the US withdrew from Afghanistan, and he had a distressing incident when he lost control of himself as a result of anxiety.
47. There is background evidence in the bundle including an article from the BMJ in respect of Afghanistan’s fragile health care system being on the brink of disaster due to funding donors. In his skeleton argument at paragraph 22, Mr Draycott references various parts of the CPIN: Afghanistan and medical treatment October 2025 and I have read this with care.
48. However, I also note that despite his health problems the sponsor has been able to travel frequently to Afghanistan and stay for lengthy periods, most recently 2023/2025. He has not reported any health problems or health related difficulties during his visits. His evidence is that he is given six months’ worth of prescriptions at a time from the UK. I also take into account that his health problems do not prevent him from working in the UK. I will consider the implications of the sponsor’s health in relation to the family living together in Afghanistan later in the decision.
First appellant’s health
49. There are various pieces of evidence before me including a letter dated 6 March 2024 from a Dr Masoud described as the first appellant’s treating psychiatrist who has a private clinic in Kabul. He describes the first appellant as having PTSD after she witnessed an explosion at Kabul airport in 2021. He has diagnosed her with cognitive impairment, severe depression, obsessive compulsive disorder, panic attacks and anxiety. He lists her medication as escitalopram, nortriptyline, amitriptyline and paroxetine. His opinion is that she is highly likely to commit suicide or self-harm if she loses all hope of living together with her husband and children in the UK. Earlier in the letter he refers to the first appellant wanting her husband to live with her in Afghanistan.
50. Other documents in the bundle include documents from the Khyber Teaching hospital in Peshawar indicating that the first appellant was admitted from 4 to 11 March 2022 and 12 to 16 November 2022 (known case of psychosis ….takes antidepressant and antipsychotic drugs). An inpatient sheet dated 3 August 2022 confirms “anorexic from last one year, the Pt has sleep disorders and chronic headaches and also has two-time suicide attempts in last year.. the Pt takes antidepressant and antipsychotic drugs from last one year”.
51. The latest evidence from the sponsor is that Dr Masoud has left Kabul and the first appellant is now receiving treatment in her village from a GP Dr Aqal bas Hemat. She continues to be prescribed with medication for her mental health problems on a regular basis. The prescriptions are enclosed in the supplementary bundle. They are dated 15 May 2025, 7 August 2025 and 20 November 2025. The first appellant is said to be depressed, hopeless and sleepless, having headaches, and crying. She is prescribed a number of different medications including paroxetine. Amitriptyline and sertraline. The respondent did not prepare a review in respect of this latest evidence because it was produced shortly before the appeal.
52. Ms Rushforth put it to the sponsor that the medical evidence was unreliable which he denied. Mr Draycott submits that the respondent did not challenge the existence of the medical conditions in the RFRL instead arguing that the first appellant has some access to medical care and these do not amount to exceptional circumstances. However, the respondent’s review dated 28 March 2024 does in fact take issue with Dr Masoud’s report because it does not comply with the relevant Practice Directions, gives limited details of the expert’s qualifications and a number of documents are vaguely referenced throughout the report without full disclosure. There is no accompanying statement and no statement confirming that his duty is to the Tribunal. On 23 April 2024, Dr Masoud provided an unsigned email with a statement of compliance sent from Naseeb.haleem@yahoo.com.
53. I am not persuaded of the reliability of the documents from Pakistan. For the reasons set out above (inconsistencies, lack of evidence of visa endorsements/ travel details and general lack of detail), I have found that the first appellant has not been to Pakistan apart from on one occasion to apply for a visa. I also find that both the sponsor and first appellant have used deception and have already produced one false document in relation to the English language test in Pakistan. In these circumstances, I find that the evidence of inpatient admissions to Pakistan/and treatment in Pakistan are unreliable and I give them no weight in accordance with Tanveer Ahmed.
54. I have some concerns about Dr Masoud’s report. I do not find that the statement of compliance remedies the failure to comply with the Practice Direction because it is unclear who Naseeb Haleem is and there are no instructions or chain of correspondence. I agree that it is not clear which medical records he has consulted nor how he has diagnosed the first appellant with OCD for instance.
55. However, his report is more comprehensive than the documents from Pakistan and he does set out some of his expertise. I accept that Dr Masoud did meet up with the first appellant who explained her symptoms and the reasons behind her mental health problems. The record of the conversation comes across as natural. I find that Dr Masoud has recorded what the first appellant told him, from which I find that she has two major concerns; the first is her married life, the second is her traumatic experience at Kabul airport.
56. Dr Masoud records the first appellant as telling him that she feels great shame to be a burden on her father. “She said as a woman she was the honour of her husband and he needed to provide for her and her children and protect them. She said people look down on her and her children. She is raising her children like orphans without their father. She said she is suffering from depression for about 10 years. She has tried medications including religious remedies such as an amulet which she still wears as a necklace”. She later said that “She wants to live with her husband in Afghanistan or elsewhere. However, she frequently forgets that her husband cannot live in Afghanistan”. Later she was asked about her husband either coming to Afghanistan or living with him in the UK and she said, “she has a strong belief that she will live a normal life like other families with husband and children”.
57. It is unsurprising that the first appellant is depressed and anxious given her separation from her husband and status of single mother which is difficult for her culturally. I also find it unsurprising that she is depressed by the general poor conditions and restrictions on women in Afghanistan. I find that the first appellant has good reason to be depressed and anxious and I accept this diagnosis. I find that she has headaches, panic attacks, poor sleep and anxiety. I also accept her account of going to Kabul airport in 2021 and witnessing chaotic scenes as well as an explosion (there is corroborative evidence from the sponsor who wrote to his MP in 2021). I find that would have been a very traumatic event and I accept that she has PTSD.
58. I have found that the other reports which says she has psychosis are unreliable and this is not diagnosed by Dr Masoud. I do not accept that she has psychosis.
59. Dr Masoud has diagnosed her with cognitive impairment but does not explain what method or diagnostic tool he uses. He does not explain if her poor memory, confusion and slowness could be caused by anything else for instance her depression or lack of education. I accept that she is slow and can be confused, but I am not satisfied that this is necessarily as a result of a cognitive impairment. Finally, although the appellant described attempting suicide there was no additional detail. Dr Masoud is recording what she said, there are no details of when, how, what treatment she received or what other medical records he had in respect of this. I am not satisfied that Dr Masoud’s opinion that it was highly likely that she would self-harm or commit suicide once she loses all hope of living together with her family in the UK is reliable without more detail about how he came to this conclusion.
60. What is clear from the medical evidence, however, is that unlike many Afghans who are not able to access treatment particularly for mental health problems, the first appellant has been able to access medical treatment in Afghanistan. Dr Masoud refers to the first appellant as his “patient” and refers to several consultations. The sponsor says Dr Masoud has left but she has a doctor in her local area. She has been able to access medication for her mental health problems regularly and the sponsor conceded in his oral evidence that the medication helps her.
Family living circumstances
61. I find that the sponsor has not been honest about his wife and children’s living circumstances in Afghanistan. I have set out the inconsistencies in his evidence above. It is not clear whether the family are living in Paktia or if they are in Kabul. The sponsor has not given any detail about his wider family in Afghanistan or that of his wife (and I note here that they are distant cousins from the same area in Afghanistan).
62. Mr Draycott makes much of the poor economic situation in Afghanistan. The skeleton argument at paragraph 23 refers to the background material and the CPIN Afghanistan: Humanitarian Protection. It is said that half the population need humanitarian protection, many do not have basic drinking water, 72% of the population live below the poverty line of £1.47 per day, women and children are particularly vulnerable.
63. The sponsor is working in the UK and is able to send remittances to support his family of £300 to £500 per month. The sponsor’s family manifestly are not living in destitution because they have access to some kind of income. Their economic circumstances are clearly superior to those enjoyed by many Afghans. I am satisfied that the first appellant and her children are living in rented accommodation and that they have food to eat. I do not accept the sponsor’s evidence that the first appellant’s father has died. She told Dr Masoud that she had moved in with her father in 2024 and the sponsor is unreliable.
Current risk to the sponsor in Afghanistan
64. Mr Draycott submitted that it was not open to the respondent to raise the issue of whether the sponsor was still at risk in Afghanistan at this point because it was not raised in the reasons for refusal or the review. He said that the position that the sponsor has been given humanitarian protection from 2008 until 2013 should be accepted in the current appeal. He also referred me to MS/Sri Lanka [2012] ECWA 1548 in respect of the sponsor travelling through the airport. I find that this has little relevance to this appeal because it is not the sponsor’s case that he travelled out of Afghanistan by bribery to avoid arrest when there was an outstanding warrant for his arrest.
65. However, it is firmly asserted in the skeleton argument and oral submissions that family life cannot take place in Afghanistan because the sponsor remains at risk in Afghanistan (see paragraphs 3, 4 and 5 of the skeleton argument). A relevant consideration in this appeal for the purposes of the proportionality exercise is the extent to which there are obstacles in carrying out family life in Afghanistan and the gravity of any interference. This is manifestly a factual issue which needs to be resolved.
66. The sponsor’s original claim for asylum was that his family came to the adverse attention of the local Taliban commander who wanted the sponsor’s sister to marry his disabled son. The sponsor’s family refused. The sponsor’s family fled their home area of Laghman and moved to Herat for a year and a half. However, they were traced and the sponsor’s mother was shot, causing the sponsor and his father to leave Afghanistan and flee to Iran. The appellant was not able to say where his father was at the time he entered the UK in 2006. Mr Draycott submits that this is the accepted basis of the claim, and I agree because the appellant was granted humanitarian protection in 2008 following this account.
67. Mr Draycott asserts that the sponsor is still at risk in Afghanistan due to this issue. The problem with this submission is that the sponsor, despite these problems in 2006, obtained an Afghan passport in 2009 and from that date was able to travel to Pakistan (2009) and Afghanistan (from 2013) safely on a regular basis. His family life with his wife and children commenced and developed in Afghanistan.
68. Even were I to accept the sponsor’s oral evidence was that his visits to Afghanistan were short; that he mainly spent time in Kabul and kept a low profile in his home area to keep himself safe, I find from the fact that the sponsor has held an Afghan passport since 2009 and from the number and frequency of the visits that the sponsor was able to spend time in Afghanistan safely from at least from 2013 onwards. On occasion he has flown direct to Kabul. On other occasions he has entered Afghanistan via Pakistan. I find that he is no longer at risk in Afghanistan following the 2006 incident (which now happened over twenty years ago). He does not give any evidence about receiving any further threats or having difficulties during this period because of the original circumstances of his claim. The historic grant of humanitarian protection manifestly does not amount to an insurmountable obstacle to the sponsor relocating to Afghanistan. The policy referred to, at paragraph 5 of Mr Draycott’s skeleton says that if someone has been granted protection status in the UK, insurmountable obstacles will be found to exist “unless there is evidence that the sponsor has returned to that country since being granted protection status in the UK”. That is the precise situation in this appeal.
69. Mr Draycott also submits that the sponsor is now at risk because his father was murdered whilst delivering goods to international forces. He asserts that the sponsor is a family member of a someone linked to international forces with reference to 3.2.2 CPIN August 2025. Ms Rushforth did not put it to the sponsor that he was lying about his father being killed or lying when he stated that he has not visited Afghanistan since 2020, although she did make submissions on his general credibility. These factual assertions remain unchallenged.
70. The only reference to the current risk is a sentence in the sponsor’s witness statement dated 8 August 2023 (which was produced after the refusal of the applications) which states as follows:
“his father was killed by the Taliban for driving a truck and delivering goods to international forces stationed in Gambiri Dag, Nangarhar, Kabul and Helmand provinces”.
71. This brief sentence is the only evidence that the sponsor is currently at risk and has not been elaborated on further. There is a complete lack of detail. It is not clear when or how the sponsor resumed contacted with his father after he arrived in the UK.
72. The fact that the sponsor has not visited Afghanistan since 2020 indicates that the sponsor now feels less secure about visiting Afghanistan than he did when they when there was still a US presence in Afghanistan and the Taliban had not completely taken over. He clearly dislikes the Taliban and is worried about their influence on his sons.
73. The latest CPIN: Afghanistan Fear of the Taliban version 6 February 2026 states:
Overview of groups who are likely to be at risk

3.1.1 People who are likely to face a real risk of persecution or serious harm from the Taliban include, but may not be restricted to:
• former members of the Afghan National Defence and Security Forces (ANDSF), which includes the Afghan Air Force (AAF), Afghan National Army (ANA), Afghan National Police (ANP), the Afghan Special Security Forces (ASSF) and the National Directorate of Security (NDS)
• former local employees of, or people affiliated with, international forces, including former interpreters ….

3.1.2 When assessing former ANDSF members and people associated with international forces, or being a family member of the above, decision makers should consider when the person last worked in that capacity, how long they were employed, and their role and level of responsibility or seniority involved, and for family members, the proximity to the person involved. Consideration should also be given on how long the person remained in Afghanistan after the Taliban takeover in August 2021 and the period they have lived abroad.
74. There is insufficient evidence about the sponsor’s father’s affiliation to the international forces. The sponsor has not explained when the incident took place, whether his father was employed directly by international forces or whether he was working as a self-employed delivery driver, for how long he was doing the job or whether he was specifically targeted or caught up in some kind of crossfire. It is for the sponsor to establish that he is currently at risk in Afghanistan and that the risk to him amounts to insurmountable obstacles. I am not satisfied on the little evidence that is before me that the sponsor has demonstrated that he would be at risk of serious harm if he returned now because of his father was killed delivering goods to international forces.
75. I find to the lower standard that there is no current risk of persecution or real risk of serious harm from the Taliban to the sponsor if he were to return to Afghanistan.
Article 8 ECHR
76. I refer to [7] of the Court of Appeal judgement in IA and others [2025] EWCA Civ 1516:
[7] It is important to set out immediately the full terms of article 8 as follows:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[8] The words that are particularly important for this case are that: “[e]veryone has the right to respect for his … family life”, and “[t]here shall be no interference by a public authority with the exercise of [the right to family life] except such as is in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country … or for the protection of the rights and freedoms of others”. We emphasise the words of article 8 at the outset because it is apparent that, in some of the cases, the terms of the rights protected by article 8 are not given sufficient prominence.
77. It is agreed by all parties that the appellants cannot meet the family reunion provisions of the rules because the family was formed after the sponsor obtained humanitarian protection. It was not in existence when the sponsor left Afghanistan, and the purpose of the family reunion rules as they were at the time of the decision was to reunite families who have been separated as a result of persecution. I have also found that the suitability provisions apply to the first appellant because of the deception in respect of the English language certificate.
78. Mr Draycott also made reference to the “insurmountable obstacles provisions” at EX1 of Appendix FM and submits that this is relevant. I find that EX1 relates to in-country family applications only. Applications for entry clearance under EC-P do not contain the EX1 provisions. The sponsor’s children do not fall to be dealt with under EX1(b) because they are not qualifying children because they are not British and are not in the UK. The test is whether the denial of entry would result in unjustifiably harsh consequences such that there would be a disproportionate breach of Article 8 ECHR. The gravity of interference with the family life and the difficulties the family would face in living together in Afghanistan are relevant to this consideration and I will deal with these below.
79. I am also satisfied that the appellants cannot meet the requirements of Appendix FM because the first appellant has previously used deception and cannot meet the English language requirement and the children would be refused in line with her.
80. I refer to [41] and [44] of R (On the application of MM/Lebanon) [2017] UKSC 10 where some of the general principles from Strasbourg caselaw are set out as follows:
41. There is no general obligation to respect a married couple’s choice of country in which to reside or to authorise family reunification. It will depend upon the particular circumstances of the persons concerned and the general interest. Factors to be taken into account are the extent to which family life would effectively be ruptured; the extent of the ties in the host country; whether there are “insurmountable obstacles” (or, as it has sometimes been put in other cases, “major impediments”: see, for example, Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798, para 48; IAA v United Kingdom (2016) 62 EHRR SE19, paras 40 and 48) in the way of the family living in the alien’s home country; and whether there are factors of immigration control (such a history of breaches of immigration law) or public order weighing in favour of exclusion (para 107). If family life was created at a time when the people involved knew that the immigration status of one of them was such that persistence of family life in the host state would from the outset be precarious, “it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of article 8” (para 108; note that this was expressed as a prediction rather than a requirement).

44. However, while the Strasbourg court has not found it necessary to carry out the article 8(2) proportionality analysis in family reunification cases, this Court has adopted that approach in Huang, above, EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159, Quila, above, Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690, and in Bibi, above. As this Court has also held in Hesham Ali v Secretary of State for the Home Department, above, para 49, there is no objection to our employing this useful analytic tool. The issue is always whether the authorities have struck a fair balance between the individual and public interests and the factors identified by the Strasbourg court have to be taken into account, among them the “significant weight” which has to be given to the interests of children.
81. Mr Draycott submitted that the sponsor’s medical problems amount to a “very significant obstacle” to him relocating to Afghanistan. This argument is somewhat misconceived. The “very significant obstacles” relate to the private life provisions of the rules which are not applicable to the appellants in this appeal because their private life is in Afghanistan and there is no decision to remove the sponsor to Afghanistan. However, it is trite that the situation in which the sponsor would find himself in Afghanistan in respect of his medical conditions if he chose to move there, is a relevant consideration in the proportionality exercise which I will consider below.
82. In so far as they rely on Article 8 ECHR, it is for the appellant to show that article 8(1) of the ECHR is engaged and if so, it is for the respondent to show that the decision was in accordance with the law, made in pursuance of a legitimate aim and that it was proportionate to the legitimate aim. The standard of proof is the balance of probabilities. Sections 117A to 117D of the 2002 Act are relevant to any assessment under article 8 of the ECHR outside the rules.
83. It is agreed that the sponsor enjoys family life with his spouse and children in Afghanistan.
84. In respect of the appellants, I take into account [100] of IA which states;
“It seems to us that all these cases point in the same direction. Whilst persons seeking to enter an ECHR state from outside the jurisdiction of the ECHR will not have their own rights under article 8, if they have pre-existing family life with a person within the territory of the ECtHR, article 8 may impose a positive obligation on a state to admit those people, if they have family life with a person within the territory. That is what is meant by family life being unitary (see [141] under ground 2 below)”
85. Mr Draycott submitted that IA is not central to the case because it focused on the test for family life between adult family members rather than a core family as is the case of the sponsor and his wife and children. I take this submission on board, but I am satisfied that IA does set out some general principles which are relevant to this appeal.
86. It is agreed that the respondent’s decision to refuse entry causes an interference in the sponsor’s and the appellants’ enjoyment of their family life together and that the likely consequences of the interference are sufficiently serious to engage Article 8(1)
87. There is no dispute that the decision was made in accordance with the law or in pursuit of a legitimate aim.
88. The remaining issue is one of proportionality. I will consider first the best interests of the children, then the issue of historical injustice (which is relevant to the proportionality exercise) and finally carry out a wider Article 8 balancing exercise taking into account the public interest in immigration control, the extent of the interference with family life and all other relevant considerations. Very exceptional or compelling circumstances are needed to be shown to grant entry clearance where the appellants do not meet the requirements of the immigration rules.
Best interests of the children.
89. This is a primary and important factor in the proportionality exercise but not determinative or paramount. Although s55 Borders, Citizenship and Immigration Act 2009 refers to “children who are in the United Kingdom,” the spirit of s55 applies to those decisions made in relation to children abroad.
90. I firstly take into account that none of the children are British, and the children have no connection to the UK apart from the fact that their father resides in the UK. Nationality is not a trump card in any event, but as non-British citizens these children do not have the same rights and expectations in respect of education, healthcare, culture and growing up in their country of nationality that British citizen children have.
91. The sponsor himself has not naturalised as a British citizen. Shortly after he was granted ILR, he married a relative by way of an arranged marriage and started travelling regularly to Afghanistan to be with his wife and family for long visits. The sponsor and appellants have also lived as a family in Iran for a period in 2023 ( and potentially 2025). No application for the first appellant or any of the children was made during the six years between the marriage taking place and 2019, during which the sponsor and his wife had three children and maintained their family life through visits and electronic communication. This suggests that the arrangement was working for the family during this time. The children were living in stable accommodation and being provided for financially by the sponsor who was working as a taxi driver in the UK.
92. It is clear that the situation has changed since the Taliban takeover in 2021. The family tried to leave Afghanistan but were not able to and witnessed distressing scenes at the airport. (It is now conceded that the family does not come under any of the Afghan specific schemes). It is rather unclear where the family are currently living but I am satisfied that they do have a home and an income. It is the sponsor’s evidence that currently all four of his children are at school. He did not say that any of the children have any serious health problems, although he did refer to his children crying because of the separation. I have found above that the children’s mother has health problems for which she is receiving treatment. It is of course in the best interests of the children for their mother to be well and able to care for her children properly, although the statements do not detail any occasion on which the children have come to harm because of their mother’s poor mental health.
93. The denial of entry will not interrupt the children’s current living circumstances. The male children will continue to have access to education and are growing up in their own culture. I accept that the sponsor does not want his sons to be indoctrinated with Taleban ideology.
94. From the background materials it is clear that the economic situation in Afghanistan is very difficult with many Afghans living on or below the poverty line and many displaced. I have found that the children do not fall into this category because they are in the fortunate position of being able to receive remittances from abroad. They have a roof over their head and are not living in a state of destitution. Mr Draycott referred to statutory overcrowding.
95. I find that his wife’s and daughter’s situation is poor by virtue of being women and the prohibition on so many of their rights and freedoms not least the impossibility of the appellant’s daughter continuing her education after year 6. The current CPIN recognises that women and girls are included in groups of people likely to face a real risk from the Taliban.
96. 3.8.2 of the CPIN says as follows:
3.7.1 Wide‑ranging restrictions have been imposed on women and girls since the Taliban takeover. Measures include denial of education beyond grade 6, bans on tertiary education, requirements for a mahram (related male escort) for travel, exclusion from most public employment, and limitations on accessing public spaces such as parks, gyms, and public baths. The 2024 PVPV law codified mandatory full‑body and face coverings and prohibited unaccompanied use of transport. Although implementation of the PVPV law varies by province, there are reports of ongoing enforcement, including denial of services to unaccompanied women and arrests for hijab violations in 2025. Rights groups describe severe impacts on access to health care, work, justice, safety, and freedom of movement and expression (see Women and girls, Judiciary, justice and protection, Law on the Promotion of Virtue and Prevention of Vice (PVPV) and its enforcement, and Informal justice systems).
97. These restrictions will apply to the first appellant and her daughter, regardless of whether there is a male protector.
98. However, the family do have at least one male living with them according to the sponsor and I do not accept his evidence that his wife’s father has died. The first appellant and her daughter are able to leave the home accompanied. I repeat that the sponsor has failed to provide sufficient reliable evidence about his family’s circumstances in Afghanistan.
99. I find that the entire family is stressed and distressed by the current situation in Afghanistan and the separation.
100. I also accept that there are some security concerns in the border area where the family live but there was insufficient evidence before me to find that the family are living in a war zone or at risk of death by virtue of indiscriminate violence.
101. It is an established principle that it is in the best interests of any child where possible to be brought up by both or at least one of their parents (see (v) of the headnote to Mundebe).
102. The sponsor’s evidence is that in his culture the presence of a father is more important than that of a mother. The first appellant also expressed her strong desire to her treating doctor to have her husband living with her for cultural reasons.
103. I find that it is in the best interests of these children to have a physical relationship with their father.
104. It is not entirely clear what the family circumstances would be in the UK in terms of accommodation and income. The sponsor has provided evidence that he has a one-bedroom flat and an income of £2,000 per month so there might be statutory overcrowding in the UK.
105. I accept that in the UK the children would be generally safer, and their parents’ mental health would improve because there would be less uncertainty and the family would be together.
106. Having carefully considered the circumstances of the children holistically in the round, I find that that on balance it would be in their best interests for the children for them to be in a family unit with both parents in the UK. This is primarily because of the difficulties which will be faced by the daughter. I remind myself that this is an important factor in the proportionality exercise but not determinative of the appeal.
Historical injustice
107. Mr Draycott submits that the second, third and fourth appellants have suffered historical injustice because the second, third and fourth appellants were erroneously refused under Appendix FM in 2019.
108. The wording of the rules as at the time that the decisions were made are as follows:
E-ECC.1.6. One of the applicant's parents must be in the UK with limited leave to enter or remain, or be being granted, or have been granted, entry clearance, as a partner or a parent under this Appendix (referred to in this section as the "applicant's parent"), and
(a) the applicant's parent's partner under Appendix FM is also a parent of the applicant;
109. Mr Draycott submitted that the child appellants were entitled to have their applications granted if (i) their other parent was already in the UK with limited leave to remain; and (ii) the partner of A1 ‘is also a parent of the applicant’;
110. Firstly, the sponsor did not have limited leave to remain – he had indefinite leave to remain. Secondly, the wording of the rule means that the parent in the UK must have been granted leave under Appendix FM and the parent applying to enter must also meet the requirements of Appendix FM. This was clearly not the case here. The sponsor has never had leave under Appendix FM and the first appellant’s application under Appendix FM was properly refused on suitability grounds. The appellants come nowhere close to establish that the failure to grant these three appellants entry was as a result of a wrongful operation of immigration function and amounted to a historical injustice pursuant to Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351. Thirdly, the appellants had a right of appeal. This submission is entirely misconceived. The earlier refusals were entirely lawful and were not challenged.
Insurmountable obstacles
111. I have found that the sponsor’s previous grant of humanitarian protection does not preclude the sponsor from residing safely in Afghanistan and that he is not at real risk of serious harm if he returned to live in Afghanistan because of his father being killed. These factors are not insurmountable obstacles to family life taking place in Afghanistan.
112. Mr Draycott submitted that the sponsor left Afghanistan when he was age 15 or 16 and that there is no evidence that he has family or a network of support in Kabul. I find that the sponsor has retained strong ties with Afghanistan though his regular visits despite leaving at a young age. He is clearly familiar with the language, culture and society. He has not been transparent about any wider family ties.
113. I accept that the sponsor would face difficulties in accessing medication in respect of Hepatitis B and depression if he were to relocate permanently to Afghanistan, given the state of the health service there. However, he has not provided evidence about what would happen to him were he not to take the medication and he has not given any evidence about the possibility of obtaining medication privately as his wife does, or what support his family could offer. He has clearly been able to visit and stay in Afghanistan for periods despite his health conditions and he has not explained adequately why he could not continue to do this. It is for the sponsor to provide an evidential foundation for these assertions in accordance with R (Kaur) v SSHD [2018] EWCA Civ 1423.
114. I accept that there are high levels of employment in Afghanistan given the huge numbers of Afghan returnees from Pakistan and Iran and the poor economic situation. However, the sponsor is not a credible witness. His evidence in relation to the situation in Afghanistan is unreliable. He has not given any evidence about his wider family in Afghanistan such as his sister, uncles and cousins, nor has he given any evidence about the first appellant’s wider family and what support they are able to offer. I take into account here that the sponsor and the first appellant are distant cousins. There is therefore insufficient information before me to determine whether these obstacles could be overcome or mitigated against because for instance there is wider family who can offer support to access employment or assist with financial support. I also acknowledge that the situation in Afghanistan is very poor for lone females and women and girls. If the sponsor did return, his wife would have her husband and male protector which is her cultural preference. His absence is the main source of her distress, and I find that her mental health would improve. Taking all of these factors into account, I find that the sponsor has not established that there would be insurmountable obstacles to family life taking place in Afghanistan.
115. I do not find that the situation in respect of women is an insurmountable obstacle to family life taking place. The sponsor could continue to live with his family and develop his family life with his wife and children.
116. Alternatively, I find that the sponsor can continue to visit Afghanistan safely as he did before. He can maintain his family life though visits to his family in Afghanistan and can continue to communicate through long distance communication in the same way as he has done since the birth of the oldest child in 2014. This is not ideal, but family life would be continuing as it did before, that, is the status quo would be maintained.
Proportionality
117. I turn to the final limb of the test in R (Razgar) v SSHD [2002] UKHL 27. I consider the factors weighing in favour of the public interest and in favour of the sponsor and appellant’s family life holistically in the round.
118. It is trite that the public interest lies in the maintenance of effective immigration control. I refer to [159] in IA where it is said:
“The SSHD’s point is that it is not her policy (as represented by the Rules) to admit all persons who share family life with a person lawfully settled in the UK. That 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 what the Government determines is necessary in that society to protect the economic well-being of the UK and the rights of citizens of the UK. The courts must always, as Lord Reed said, attach considerable weight to the SSHD’s immigration policies at a general level, alongside considering all the factors which are relevant to the particular case.”
119. The immigration rules reflect the Secretary of State’s view of where the balance of proportionality lies. The appellants have failed to satisfy the immigration rules in any category. The sponsor married the first appellant in Afghanistan as soon as he was granted indefinite leave to remain. He married the first appellant in the knowledge that if he wanted to bring her and any children of the union to the UK, they would have to meet the requirements of the immigration rules and that there was the possibility that they would not ultimately be permitted to join him in the UK. His children are not British citizens. I have found that the sponsor and first appellant were aware that they could not meet the rules when he made the applications in 2019 which is why the fraudulent test certificate was obtained. They also knew that they could not succeed under the family reunion provisions. I give these factors significant weight.
120. I also give significant weight to the first appellant’s and sponsor’s deception in respect of the English language certificate. This was a serious deception and indicates contempt for British immigration laws.
121. The appellants do not speak English, and it is in the public interest that they speak English. I was not presented with any updated evidence in respect of the sponsor’s financial circumstances. The latest pay slips submitted relate to 2022 and the sponsor is said to earn approximately £2,000 per month. I find that is likely that a couple with four children will require some sort of additional public funds on top of this salary to pay for rent and living costs which is not in the public interest.
122. I find that the family life between the sponsor in the UK and his wife and four children has always consisted of long visits and regular telephone/ internet communication. Family life has never taken place in the UK.
123. I also take into account that the denial of entry does not involve the complete extinguishment of family life because I have found that the sponsor can continue to visit his family as he has always done.
124. On the appellants’ side of the balance, it is in the best interests of the children on balance to live in a family unit with both parents in the UK which is an important consideration, and I give significant weight to this factor.
125. There will be a particularly negative effect on the sponsor’s daughter in respect of the impact on her of not being able to continue her education. I also give significant weight to this factor. The situation will be particularly difficult for the first appellant and her daughter who are currently unable to leave the home without being accompanied by a male companion and have many rights and freedoms removed from them as set out in the CPIN.
126. If the family remain in Afghanistan the mental health of the sponsor and the first appellant will remain poor and in the case of the first appellant may deteriorate. The family will remain distressed at the separation. I give weight to this.
127. The appellants will be living in a difficult political, economic and cultural situation.
128. Having taken into account all of these factors in the round holistically, I find that the situation of the appellants in Afghanistan do not amount to exceptional or compelling circumstances. I find that the public interest in maintaining effective immigration control which includes the economic wellbeing of the UK and rights of UK citizens outweighs the sponsor’s and his family’s right to respect for family life. I find that the decision does not amount to a disproportionate interference in family life.
129. I dismiss the appeal.


Signed R J Owens Date 20 March 2026
Upper Tribunal Judge Owens


Appendix A


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2024-003734
UI-2024-003735
UI-2024-003737
UI-2024-003738
UI-2024-003741
First-tier Tribunal Nos: HU/54762/2023
HU/54718/2023
HU/54755/2023
HU/54748/2023
HU/54767/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

EU, MU, EU, EU & NU
(ANONYMITY ORDER MADE)
Appellants
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellants: Mr Draycott, Counsel instructed by Pristine Law
For the Respondent: Ms McKenzie, Senior Home Office Presenting Officer


Heard at Field House on 8 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS
Background
1. The appellants are citizens of Afghanistan. The first appellant is the mother of the other four appellants, all of whom are young children (born between 2014 and 2019). The youngest child is female; the others are male. The appellants live in Afghanistan and have never been to the UK.
2. The first appellant is married to a citizen of Afghanistan who lives in the UK and has ILR (“the sponsor”). The sponsor has been in the UK since 2006. He received a grant of Humanitarian Protection in 2008 and ILR in 2013. The first appellant and sponsor married in 2013, shortly after the sponsor was granted ILR. The second, third, fourth and fifth appellants are the sponsor’s children.
3. In 2019 the appellants (other than the fifth appellant, who was not yet born) applied for entry clearance to join the sponsor in the UK under Appendix FM of the Immigration Rules. The first appellant’s application was refused on suitability grounds on the basis that a false English language test certificate was submitted with the application. The applications by the other appellants were refused because the first appellant’s application was refused.
4. In August 2022 the appellants applied again for entry clearance. The first appellant’s application was refused for several reasons. These included; (i) the previous use of a false document which meant that Part 9.7.2 of the Immigration Rules applied; (ii) that the humanitarian protection family reunion requirements were not satisfied because the marriage post-dated the sponsor’s departure from Afghanistan; (iii) that there was no evidence of the first appellant falling within a cohort of people called forward for evacuation from Afghanistan; and (iv) that refusing entry would not constitute a disproportionate interference with her family life. The applications by the other appellants were also refused.
5. The appellants appealed to the First-tier Tribunal where their appeal came before Judge of the First-tier Tribunal Lester (“the judge”). In a decision issued on 10 May 2024 the appeal was refused. The appellants now appeal against this decision.
Decision of the First-tier Tribunal
6. In paragraph 11, the judge identified the issues agreed by the parties as being in dispute as (i) the best interests of the children; and (ii) whether refusing entry to the appellants would breach article 8 ECHR.
7. The first appellant produced a medical report from her treating psychiatrist in Afghanistan, Dr Masoud. In the report, Dr Massoud states that he is a psychiatrist at a mental health hospital in Kabul who also has a private clinic in Kabul. Dr Massoud describes the first appellant as suffering from PTSD (following the witnessing of an explosion at the Kabul airport in August 2021), cognitive impairment (he characterises her as being extremely slow in processing information and states that she even frequently forgets that her husband cannot live in Afghanistan), severe depression, obsessive-compulsive disorder, panic attacks and anxiety. He also states that the first appellant is highly likely to commit suicide or self-harm if she loses all hope of living together with her husband and children in the UK.
8. The judge considered Dr Masoud’s report in paragraphs 16 – 18 of the decision. The judge stated in paragraph 16 that the lack of detail and absence of reference to specific medical records were:
“matters [that] affect the weights that I can give to the report”.
9. The judge also stated that the medical evidence does not show that the appellants received medical treatment as a result of the explosion in Kabul. The judge stated in paragraph 18 that:
“this affects the weights that I can give to those matters relating to the applicants as recorded in these documents”.
10. The judge discussed the refusal of the 2019 entry clearance application in paragraphs 27 – 29 where, amongst other things, the judge noted that the current application was refused under paragraph 9.7.2 of the Immigration Rules as the first appellant had not provided a genuine document in the 2019 application.
11. In paragraphs 31 – 34 the judge considered the best interests of the second, third, fourth and fifth appellants. The judge noted (in paragraph 31) that their best interests were a primary consideration. The key findings about their best interests are in paragraphs 32-33, where the judge stated:
32. All of the children have been born in Afghanistan and reside there with their mother. It is therefore factually correct and I find that the sponsor has never lived with them other than during the course of visits. Therefore the relationship of the sponsor and his children has always been that he is not a physically permanent fixture of their lives and never has been. The relationship has always operated at a distance and being facilitated through visits and communications. While the sponsor and parents have set out the situation in Afghanistan they accept that they have no evidence to advance of the appellants having come to the attention of the Taliban, and they do not assert this. They do however draw attention to the attitudes and policies of the Taliban regime in Afghanistan. They have illustrated this with various items of objective evidence.

33. The appellants have very limited ties to the UK. Their father resides in the UK. They are not British nationals and have never resided in the UK. They have lived their entire lives in Afghanistan. No evidence has been provided to show that the living arrangements they have in Afghanistan cannot continue.
12. The judge then undertook an article 8 balancing exercise. In paragraph 38 the judge identified the considerations weighing on each side of the scales, as follows:
38. (a) I weigh the following further public interest factors against the appellant. They do not satisfy the IR. They are not British nationals. They have never been to the UK. They have lived their entire lives since birth in Afghanistan with their mother. The sponsor has never been a permanent physical presence in their lives as he has lived in the UK since before the marriage and the births of the children.

39. (b) I weigh the following family and private life factors in the appellant’s favour. They wish to reside with the father (the sponsor) in the UK. Likewise the sponsor wants his wife and family to come to the UK. S.55 best interests of the children.
Grounds of Appeal
13. The lengthy grounds make a range of arguments. After hearing Mr Draycott’s oral argument, we would distil his submissions into the following four grounds:
a. The judge’s assessment of the children’s best interests is inadequate because of a failure to engage with, or consider, relevant considerations.

b. The judge failed to make a finding on whether he accepted – and the weight that he gave to – Dr Massoud’s evidence about the first appellant’s mental health and cognitive impairment.

c. The judge failed to engage with the argument advanced on behalf of the second, third and fourth appellants that they had been the victim of a historic injustice that reduced the weight that ought to be attached to the public interest in effective immigration controls.

d. The judge mistakenly proceeded on the basis that the first appellant had acted dishonestly in the 2019 application when this was not what the 2019 decision stated or what the evidence demonstrated.
Ground 1: Assessment of Best Interests
14. As the judge recognised in paragraph 31, the best interests of the second, third, fourth and fifth appellants needed to be treated as a primary consideration in the article 8 proportionality assessment. To treat their best interests as a primary consideration a necessary step was to determine what in fact would be in their best interests.
15. Mr Draycott argued that the judge’s (brief) assessment of best interests was inadequate because of a failure to take into account multiple material considerations. Ms McKenize argued that the judge’s summary of the evidence – although succinct – was sufficient as it demonstrated he had grappled with the evidence. She also argued that there were gaps in the evidence; in particular, she highlighted that there was no evidence that the current living arrangements could not continue.
16. We agree with Mr Draycott that there are several factors relevant to the best interests of the children that are not considered in the decision and appear to have been overlooked. The most significant are the following:
17. First, there is case law making clear that, when assessing a child’s best interests, the starting point is that, generally, it is in a child’s best interests to be with both parents. Sub-paragraph (v) of the headnote to Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC) states:
“As a starting point the best interests of a child are usually best served by being with both or at least one of their parents.”
A similar point is made in Azimi-Moayed (decisions affecting children; onward appeals) [2013] UKUT 00197 (IAC)) where paragraph 1(i) of the headnote states:
“As a starting point it is in the best interests of children to be with both their parents …”
18. We need to be cautious before relying on Azimi-Moayed and Mundeba. Azimi-Moayed is a case that concerned removal of a family, as a unit, from the UK, and therefore relates to very different issues. And Mundeba also concerned very different factual circumstances. We are nonetheless satisfied that these cases highlight an important point, which is that it will frequently, but not always, be the case that it will be in the best interests of a child to live with both parents. It does not appear that the judge, when considering the best interests of the second, third, fourth and fifth appellants, took this into consideration.
19. Second, there was a considerable amount of objective evidence before the First-tier Tribunal concerning the very challenging circumstances faced by woman and girls in Afghanistan, including the lack of access to education for girls. It does not appear, from the judge’s assessment of the children’s best interests, that this was considered in respect of the fifth appellant, who is a young girl.
20. Third, there was evidence before the judge, in the form of Dr Masoud’s report, that the first appellant suffers from, inter alia, depression and cognitive difficulties. The report also raises the risk of suicide. These are factors that, plainly, are relevant to whether (and the extent to which) the first appellant is able to effectively take care of her children. However, there is nothing in the judge’s assessment of best interests to indicate that this was taken into consideration when assessing the children’s best interests.
21. For these reasons, we reach the firm conclusion that the judge made a material error by not undertaking an assessment of the children’s best interests that took into consideration all of the relevant factors and evidence.
Ground 2: Evidence about the first appellant’s mental health and cognitive impairment
22. As summarised above in paragraph 7, the appellants relied on a report by the first appellant’s treating psychiatrist in Afghanistan, Dr Masoud. Amongst other things, the report gives the opinion that the first appellant suffers from depression, has cognitive difficulties and is a suicide risk.
23. Despite the significance of the issues raised by Dr Masoud, the judge has not addressed them. The brief consideration of the report, in paragraphs 16-19 of the decision, does not even mention Dr Masoud’s opinion about the first appellant’s mental health. Moreover, although the judge states (twice) that deficiencies in the report “affect the weight” he gives it, he does not say what weight (if any) is attached to the report. This lack of clarity leaves the reader of the decision uncertain as to whether the judge accepted that the first appellant has mental health and cognitive impairment issues; and if not, why this was not accepted. We consider this to be a legal error. Moreover, it is a material error for the reason explained in paragraph 20 above: in short, any mental health and/or cognitive problems suffered by the first appellant are relevant to the assessment of the children’s best interests.
Ground 3: Historic injustice
24. It is apparent from the amended skeleton argument (dated 7 March 2024) and the appellants’ reply to the respondent’s review (dated 23 April 2024) that one of the arguments advanced on behalf of the appellants was that the second, third and fourth appellants suffered a historic injustice which is relevant to the weight that ought to be attached to the public interest in the article 8 proportionality assessment. There is no reference to this argument in the decision.
25. It was incumbent on the judge to deal with all of the arguments raised on behalf of the appellants, even if only briefly. The failure to consider – or even acknowledge - the existence of the appellants’ “historic injustice” argument is a legal error.
Ground 4: Dishonesty in the 2019 application
26. Mr Draycott argued that the judge was wrong to proceed on the basis that the first appellant acted dishonestly in the 2019 entry clearance application. As submitted by Ms McKenzie, the difficulty with this argument is that the 2019 decision (and the dishonesty issue) played no part in the article 8 proportionality assessment. The judge found that the public interest weighed against the appellants for a range of factors that are set out in paragraph 38(a) of the decision. Deception by the first appellant is not one of the factors identified. Accordingly, any error by the judge in his assessment of what occurred in 2019 is immaterial.
Conclusion
27. For the reasons we have given, the decision of the First-tier Tribunal is undermined by material errors of law and therefore cannot stand.
Disposal
28. The general principle is that cases will be retained in the Upper Tribunal for remaking. However, there are exceptions to this, as set out in paragraphs 7.2.(a) and (b) of the Practice Statement. Neither exception applies, as (i) neither party was deprived of a fair hearing in the First-tier Tribunal; and (ii) although we do not consider that any of the findings of fact can be preserved, it does not appear that further fact-finding is likely to be extensive. In this regard, we note that Mr Draycott indicated that the only witness on re-making would be the sponsor.
29. We recognise that by retaining the matter in the Upper Tribunal the parties will lose the benefit of the two-tiered decision making process, the significance of which was highlighted in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 IAC. However, as this case does not fall within the exceptions set out in paragraph 7.2, retaining the matter in the Upper Tribunal is, in our view, the appropriate course of action.

Notice of Decision
30. The decision of the First-tier Tribunal involved the making of an error of law and is set aside with no findings preserved.
31. The decision will be re-made at a resumed hearing in the Upper Tribunal.

Directions
32. The parties have permission to rely on evidence that was not before the First-tier Tribunal. Any such evidence must be filed and served at least 14 days before the resumed hearing.

D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber


9 September 2025