Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-003827

First-tier Tribunal No: HU/52311/2023
IA/00802/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 14 May 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

ISAAC AGYEI OFORI
(NO ANONYMITY DIRECTION MADE)
Appellants
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr B Shabbir, counsel instructed by McGlashan Mackay
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 13 May 2025
Decision and Reasons
Introduction
1. The appellant is a national of Ghana. On 6 September 2022 he made an application for leave to enter the UK as the partner of Gifty Appiah, a British citizen. There are two children of that relationship. They have a daughter who I refer to as KM, born in December 2009 and a son who I refer to as KO, born in August 2014. The appellant’s two children are British citizens’ and live in the UK with his partner. The application for entry clearance made by the appellant was refused by the respondent for reasons set out in a decision dated 23 January 2022 (sic 23 January 2023). The appellant's appeal against that decision was dismissed by First-tier Tribunal Judge Prudham (“the judge”) for reasons set out in a decision dated 20 June 2024.
2. The appellant claims that in reaching the decision the judge failed to take into account that the best interests of the children are served by being with both parents. The appellant refers to the decision of he Upper Tribunal in Azimi-Moayed & Ors (Decisions Affecting Children; Onward Appeals) Iran [2013] UKUT 197 (IAC) and of the Administrative Court in R (on the application of Mansoor) v Secretary of State for the Home Department [2011] EWHC 832 (Admin). He claims the judge failed to take into account the impact on the children of their inability to have direct, face to face to contact with their father. The evidence of the sponsor was that KO keeps asking where the appellant is, and that the children are emotionally affected by separation from their father.
3. Permission to appeal was granted by Upper Tribunal Judge Norton-Taylor on 3 September 2024. He said that in most respects, the judge’s decision is sound and the judge was entitled to conclude that the Immigration Rules were not met and that this weighed heavily against the appellant. The appellant’s relationship with his partner had begun at a time when the appellant’s status in the UK was precarious and both children were born in the UK whilst he was in Ghana. Judge Norton-Taylor said:
“4. It is arguable that the judge erred in relation to the best interests assessment at [24]. It might be that he failed to consider whether the continuing separation of the children from their father was contrary to their best interests, as opposed to the maintenance of the status quo (i.e. living in the United Kingdom with their mother) being sufficient.
5. It is unclear whether there was very much evidence before the judge on the question of the effects of continuing separation on the children. This will no doubt be investigated in due course. If, as appears to be the case, what was said at the hearing is being relied on, evidence of this will need to be adduced as part of the error of law bundle“
The Hearing of the Appeal Before Me
4. Mr Shabbir referred to the evidence that was before the FtT regarding the appellant’s children. He drew my attention to extracts from the appellant’s statement in which he confirms that he first saw his daughter in 2013 when his partner and daughter visited Ghana and remained there for a period of 5 years. The appellant said in his witness statement that his partner and children visited Ghana in December 2017 and remained there until 15 January 2017. He claims his son was ‘withdrawn’ even though they had previously spoken on WhatsApp and on video calls. The appellant confirms he speaks to the children almost everyday when they are doing their homework and that his son struggles to understand why the appellant is not here with them. He wants to be with the appellant and misses him. In her witness statement Gifty Appiah confirms the children miss the appellant and they get upset. She claims they are suffering ‘emotionally and psychologically’. She is unable to do everything that the children wish to do. She states their son was sick just before Christmas 2021 and an ambulance had to be called in the middle of the night. That has happened on two occasion and the doctors believe he may have acute asthma. She is forced to take time off work to attend appointments and life would be much easier for them if the appellant were here living with them.
5. Mr Shabbir referred to the transcript of the hearing before the FtT in which the appellant’s partner said the separation impacts upon the children because their son is young and he doesn’t understand what is going on. He is always asking where his daddy is and when his daddy will be coming home. They do keep in contact by daily phone calls. The transcript records the submission made on behalf of the appellant referring to the evidence of the appellant’s partner and the letters provided in support by the appellant’s children. Mr Shabbir drew my attention to the letters provided by the children. Mr Shabbir also referred me to the appellant’s skeleton argument in which it was submitted, in summary, that it is in the best interests of the children to live as a family unit with both their parents in the UK where they are able to fully enjoy the privileges that come as part of their British citizenship.
6. Mr Shabbir submits it is plain that as a starting point, it is in the best interests of the children to be with both their parents; Azimi-Moayed & Ors (Decisions Affecting Children; Onward Appeals) Iran, at [13(i)] and SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 00043(IAC), at [99]. The best interests of the children must be a primary consideration and the children’s own views are important; ZH (Tanzania) v SSHD [2011] UKSC 4, at [33], [34] and [46]. It is Mr Shabbir submits it is important for a judge to have a clear idea of the children’s circumstances before the judge can make a decision as to whether the best interests of the children are outweighed by other factors; Zoumbas v SSHD [2013] UKSC 74, at 10].
7. Mr Shabbir submits the judge dealt with the bests interests of the children very briefly in paragraph [24] of the decision. That is problematic, he submits, because (i) the judge referred to the status quo and treated that as determinative without considering whether it is in the best interests of the children to remain separated from their father, perhaps indefinitely; (ii) the judge did not engage with the evidence that the separation is having an emotional impact on the children and (iii) the judge did not have any regard to the evidence of the children themselves. The appellant’s daughter is of an age at which she is able to voice an opinion. Mr Shabbir submits the failure to have regard to those relevant matters is material because had the judge had regard to those factors, the judge may have reached a different conclusion.
8. The respondent has filed a Rule 24 response dated 18 September 2025. In summary, the respondent submits the judge was well aware of the evidence that one of the children has asthma and received CDP since the issue featured heavily in the decision. It is obvious that the family wishes to live together in the UK and that the continued separation of the appellant from his partner and children is contrary to that wish. The judge had regard to all relevant evidence and it was open to the judge to conclude that the best interests of the children are adequately catered for in the UK by their primary carer.
9. Mr Mullen submits there had been a prolonged separation before the application for entry clearance was made by the appellant. He submits the overall principles are well established and it is almost always desirable, where possible, for children to be able to live with both their parents. There is an understandable sadness to any separation, but here the judge concluded the best interests of the children are not outweighed by other relevant factors including the public interest, in circumstances where the appellant is unable to satisfy the requirements of the immigration rules.
10. At the conclusion of the hearing before me I informed the parties that I am satisfied there is no material error of law in the decision of the FtT and that I dismiss the appeal. I informed the parties that I will set out my reasons for that decision in writing and this I now do.
Decision
11. The background to the appellant’s relationship with his partner and children is summarised in paragraph [2] of the decision of the FtT. The appellant’s partner obtained British citizenship in 2019. The appellant and his partner met and began a relationship in the UK in 2007. In 2008 the appellant was removed from the UK and returned to Ghana. Despite that, the appellant and sponsor maintained their relationship. In December 2009 the appellant’s partner gave birth to their daughter and in August 2014 she gave birth to their son. The appellant is the father of both children. The appellant and his partner married in Ghana on 16 July 2021.
12. The judge noted that when the appellant made his application, he had not provided any proof that he meets the English language requirement of the Immigration Rules. In addition, at the time of the application, the financial eligibility requirement was not met. At the hearing of the appeal the appellant provided evidence that he meets the English language requirement.
13. The evidence of the appellant’s partner at the hearing of the appeal was that the appellant has not returned to the UK since he was removed in 2008. She has visited the appellant in Ghana. Her evidence was that she last saw the appellant in person in 2021 and their children last saw him in 2017.
14. The judge’s findings and reasons for dismissing the appeal are set out at paragraphs [15] to [27] of the decision. The judge began by recording, at [15] that he has considered all the evidence, including the oral evidence given at the hearing of the appeal. The judge concluded that on the evidence before the Tribunal he could not be satisfied that the eligibility financial requirement is met by the appellant. The judge however accepted the appellant has a family life with his partner and children, and that the interference with that family life is in accordance with the law and has the legitimate aim of the maintenance of effective immigration controls. The issue, the judge said, is whether or not the extent of the interference is proportionate to that aim.
15. To that end the judge referred to the relevant public interest considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002. It is uncontroversial that the best interests of a child are an integral part of the proportionality assessment under article 8 ECHR. In ZH (Tanzania) v Secretary of State for the Home Department , Lady Hale confirmed that the best interests of a child are “a primary consideration”, which, she emphasised, was not the same as “the primary consideration”, still less “the paramount consideration”. As a starting point, I readily accept that the best interests of a child are usually best served by being with both or at least one of their parents. The fact that it is in the best interests of the children to be able to live with both their parents is not to say that it follows that it is in the best interests of the children that the appellant be permitted to enter the UK irrespective of all other facts, including the family background or other relevant circumstances. In paragraph [33] of her judgement in ZH (Tanzania) Lady Hale said that the best interests must be considered first but can of course be outweighed by the cumulative effect of other considerations, including factors such as the need to maintain firm and fair immigration control, coupled with a person’s immigration history and the precariousness of the position when family life was created.
16. At paragraph [24] the judge confirmed he considered, as a primary matter, the best interests of the appellant’s children who both reside in the UK with their mother and are in education. The judge noted both children were born in the UK at a time when the appellant resided in Ghana, and concluded that the best interests of the children is served by maintaining the status quo and that they should remain in the UK with their mother. There can be no doubt that the children are receiving primary care from their mother and there was no evidence that the children are not or cannot be adequately cared for by her. She may well wish to have the support of the appellant, but they established their family in the knowledge that the appellant did not have an entitlement to enter the UK and in the knowledge that they may be unable to live together as a family unit in the UK.
17. The appellant’s partner is a British citizen. She is and has always been the primary carer of the children. There is no question of the appellant’s partner or children being required to leave the UK. Nevertheless, the fact that the appellant, his partner, and the children wish to continue their family life together in the UK does not amount to an entitlement to do so or impose any obligation on the UK to admit the appellant to the UK.
18. The brevity of the judge’s consideration of the best interests of the children is unfortunate, but that is not to say that the judge did not have regard to all the evidence before the Tribunal in reaching the decision. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. The decision should be respected unless it is quite clear that the judge have misdirected themselves in law. Contrary to what is said by the appellant, the judge had regard to the best interests of the appellant as a primary consideration. The duty under s55 is referred to at paragraph [24] of the decision.
19. The evidence before the FtT regarding the best interests of the children was sparse and limited to that which Mr Shabbir drew my attention to in his submissions. The judge confirmed that he had considered all the evidence and there was no obligation on the judge in this case to do more than he had done. There appears to be little doubt that the appellant is fond of his children and that despite the geographical distance between them, the children are fond of their father. Weighing up all relevant considerations, the appellant had not established that the children’s welfare/best interests would be impaired by the ongoing separation in circumstances where the family have never lived in the UK as a family unit. The family have only lived together on those occasions during which the appellant’s partner and children have visited Ghana. The bare assertions in the witness statements and oral evidence of the emotional impact that the separation has on the children, without more, could not on any view outweigh the public interest in the maintenance of immigration control in circumstances where the appellant is unable to meet the requirements of the rules. The failure to expressly refer to, and address each component of the evidence that Mr Shabbir refers to, is incapable of amounting to a material error of law that might lead to a different decision.
20. The judge noted, at [25] that there are factors weighing in favour of the appellant, including the fact that he would be able to live with his family in the UK. He has previously lived and worked in the UK for a short period of time and so will be familiar with UK culture, and he also speaks English. At paragraph [26] the judge referred to factors that weigh against the appellant. The appellant does not meet the immigration rules. The appellant and his partner entered into a relationship in 2007 at a time when the appellant’s immigration status was precarious and his partner was in the UK as a dependent, on her mother’s visa. Their relationship has continued since the appellant returned to Ghana in 2008. The appellant and sponsor have chosen to commence a family life whilst living in separate countries knowing that the appellant would have to meet the immigration requirements of the UK in order for them to live together. They have maintained this separate lifestyle since 2008.
21. The judge identified the core issue in this appeal. The Judge undoubtedly had regard to the best interests of the children as a primary consideration and applied the correct test. The assessment of an Article 8 claim such a claim is always a highly fact sensitive task. The judge was required to consider the evidence as a whole and in my judgment he plainly did so, giving adequate reasons for his decision. The requirement to give adequate reasons means no more nor less than that. It is not a counsel of perfection. An appellate court should resist the temptation to subvert the principle that they should not substitute their own analysis and discretion for that of the Judge by a narrow textual analysis which enables it to claim that the Judge misdirected themselves.
22. Reading the decision as a whole, I am satisfied that the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.
23. It follows that I am satisfied that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
24. The appellant’s appeal to the Upper Tribunal is dismissed.
25. The decision of First-tier Tribunal Judge Prudham dated 20 June 2024 stands

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 May 2025