Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: UI-2024-004199
(HU/50942/2023)

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 March 2025

30th April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Miss KEYINGXUAN HUANG
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Steven Winter, an advocate via CVP
For the Respondent: Miss Everett, a Home Office presenting officer via CVP

DECISION AND REASONS

Introduction and background
1. The appellant is a citizen of China, who was born on 14 May 2009 and was therefore 15 at the date of the appeal before the First-tier Tribunal (FTT).
2. On 27 June 2022 the appellant applied for entry clearance to be granted leave to enter or remain in the UK based on family life but was refused on 11 January 2023. The refusal was because E–ECC of Appendix FM was not thought to be satisfied. That paragraph outlines the requirements for a child to enter the UK to join a parent bearing sole responsibility for her, the appellant being at that time aged 15. Specifically it was thought by the respondent that the eligibility requirements of paragraph 1.6 (b) were not met in that the applicant lived with her grandparents and not her mother, the sponsor, who did not continue to have “sole responsibility for the child’s upbringing”. In this case the appellant’s parents did not have shared responsibility for the appellant’s upbringing either because, at the date of the application for entry clearance and at the date of the hearing, it was not thought that they were living together.
3. The basis for the claim was that the appellant’s grandmother, with whom she had been living for many years, was becoming “less able” to care for her and therefore she desired to come to the UK to join her parents as her grandparents were unable to continue to do so.
The decision appealed against
4. Following a First-tier Tribunal Hearing at Glasgow, Judge of FTT C J Cowx (the judge), in a decision promulgated on 6 July 2024, dismissed the appellant’s appeal. This had been against the respondent’s refusal to recognise the appellant’s claim on human rights grounds.
5. The appellant appealed the above decision and on 6th September 2024 was given permission to appeal by Judge of the First-tier Tribunal Adio.
The reasons permission to appeal was given
6. It was thought:
“… arguable that there is a Robinson ‘obvious’ (error in law) point in that the Appellant had both1 her parents in the UK which raises the question as to whether the issue of sole responsibility should have been applied at all. It is arguable that there is a misdirection of law by the judge in the application of paragraph E-ECC 1.6 (b) of Appendix FM of the Immigration Rules2. This no doubt has an effect on the findings under article 8. Factors raised by the Applicant with regards to the condition of the grandparents in looking after her also raises an arguable error of law with regards to the assessment of proportionality. Permission to appeal is granted . The grandparents position, in looking after her, also raise an arguable error of law with regards to the assessment of proportionality. Permission to appeal is granted. Whether there is an interference or whether the interference is of such gravity where the Appellant is not able to join the Sponsor. It was also argued that the judge did not carry out a robust proportionality assessment.”
The hearing
7. At the hearing I heard submissions by both representatives. Mr Winter began by explaining that ground 1 on page 9 of his grounds of appeal asserted that the first issue that the judge had to grapple with related to whether article 8 was engaged and the second issue was whether there had been an interference of such gravity as to justify interference with the FTT’s decision.
8. He said that the focus of the attack in this ground started with sub-paragraph (i) of the grounds and stated that the judge had misdirected himself at paragraph 29 of his decision (at page 18 of the PDF). At that point in the judge’s decision he had concluded that the refusal of entry clearance in the appellant’s case did not amount to an interference with her right to respect for private or family life. Both KH (the appellant’s mother and sponsor) and WZ (her father) had “chosen to enjoy their respective private and family lives in the manner chosen…”.
9. Mr Winter relied on the case of Saliu [2021] EWCA Civ 1847 in which the Court of Appeal dealt with an application by two Nigerian citizens for entry clearance to join their mother who had come to the UK as a refugee six years earlier, which was refused. The appeal to the FTT was dismissed and they appealed to the UT, which also dismissed their appeals. The main issue was whether the appellate tribunals were wrong to do so for failing to take into account the time taken to process the mother’s refugee claim. The appellant relied on exceptional circumstances or compassionate factors to justify the grant of leave. There, the situation was rather different and in that the appellants would have been eligible to join the sponsoring mother at last- their circumstances having changed during the decision-making process because they had reached the age of 18 and were therefore no longer eligible under the rule under which they had applied. In fact, however, the Court of Appeal was not satisfied that the delay in that case enhanced the appellant’s claim under article 8 or materially weakened the countervailing public interest in immigration control inherent in such an assessment. The first question: whether refusal of entry clearance amounted to a breach of article 8 (1) and hence of section 6 of the Human Rights Act 1998 (HRA), will ordinarily turn on the facts as they stood at the time of the relevant decision. Mr Winter considered that a refusal of entry clearance in this case was a clear interference with the appellant’s article 8 rights and had to be justified. When the tribunal considered the public interest in immigration control such refusal may be justified in the public interest. It was at that stage that the tribunal may ask whether an interference was necessary and proportionate, not at the first stage.
10. As to interference, this had been dealt with by the judge at paragraph 30 which states that he was not satisfied that the interference was of such gravity as to engage article 8 for the same reasons were that both KH and WZ (the appellant’s mother and sponsor and her husband) have lived their respective private and family lives as a result of a conscious choice, the judge said. The judge went on to point out that if they wished to alter their chosen lifestyle by reuniting with the appellant they were at liberty to do so in China. Mr Winter criticised these findings, pointing out that Sedley LJ had said in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 at [28] that the threshold to engage article 8 was not a high one. Sedley LJ also said that if private life is established, the gravity required to establish its interference is not a high threshold. He said that section 117B of the 2002 Act, which lay down additional requirements to be considered, did not affect the decision as to whether private life was established. Section 117B is considered separately from the question of whether article 8 is engaged. Once it is engaged, as Sedley LJ indicated in the above paragraph, the “focus” normally moves to justification of the decision under article 8(2).
11. Mr Winter went on to his third point (iii) to the effect that a failure to take account of relevant factors was alleged in assessing whether an interference was of such gravity as to justify allowing the appellant to enter the UK and thus allow her appeal against the respondent’s refusal of entry clearance. In an adult case the question of whether or not “more than normal emotional ties” could be established may be relevant but where a child is involved it was unnecessary to consider this. He said that the question was whether the tribunal had “taken account” of all relevant factors. He said that the informed reader of the decision was left in “real and substantial doubt as to how those have been assessed in terms of the finding that there is no interference”, by reference to the Scottish case of Wordie [1984] SLT page 345. In that case Lord Emslie went on to say at page 348: “The decision must, in short, leave the informed reader in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”. That case was considering the Secretary of State’s compliance with his statutory duty and the Court of Session said that it was necessary for him to “… give proper and adequate reasons for his decision which deal with the substantial questions in issue…”. Mr Winter said that there were no objective reasons for rejecting the medical evidence here.
12. He proceeded to consider ground 2, pointing out that in paragraph 28 of the decision the judge said that he took into account the grandparents’ ill-health but he described the evidence supplied as being insufficient to impede their ability to provide care for the appellant. He described there as being a lack of “objective medical evidence to inform me of her current condition”, a reference to the appellant’s grandmother’s ill-health. Mr Winter pointed out that placing additional demands on the grandfather was not realistic given that he had suffered a brain tumour. He said there was nothing wrong with the medical evidence, which had been unchallenged. Given his client was under 18, she had two remaining years of childhood. It may be relevant to consider that factor if the UT were to remake the decision, he said.
13. Mr Winter then went on to consider the case of GM (Sri Lanka) [2019] EWCA Civ 1630 in which the Court of Appeal had considered a refusal of an asylum claim as well as a claim under article 8. The case post-dated the important decisions of the Supreme Court in Agyarko, Ali, KO (Nigeria) and Rhuppiah. The question was whether it was reasonable to expect the family settled in the UK to return to China. At paragraph 53 of the decision in GM (Sri Lanka) the Court of Appeal pointed out that the question of reasonableness was not the same as the balancing exercise – a person might be able to return to a foreign country it might still be unreasonable or disproportionate to compel them to do so. The point made there included considering that the appellant’s husband and children, if they followed the appellant to Sri Lanka, would lose their leave to remain in the UK, with the chance to achieve settled status in the UK. This was part of the reasonableness question, in the Court of Appeal’s view.
14. Mr Winter went on to consider sub-paragraph (iii) of ground 2, which deals with section 117B. According to the grounds (PDF page 11) the FTT had misapplied the law when assessing proportionality by failing to conduct a robust proportionality assessment and failing to take account of all relevant factors. In addition, the judge was criticised for the fact that the appellant met the financial requirements of the Rules. It was necessary to ask whether the judge had carried out a robust proportionality assessment. It was submitted that the financial requirements under the Immigration Rules were met. The appellant was going through puberty and needed the support of her parents. There was also the question of the ill-health of her grandparents to take account of.
15. Finally, Mr Winter dealt with the “Robinson obvious” point in his permission grant where he referred to an “arguable” misdirection of law by applying E – ECC .1 .1 .6 (b) of Appendix FM of the Rules, which require the applicant to show that the sole parent “has had and continues to have sole responsibility for the child’s upbringing” and that misapplication of the rules may have affected the finding under article 8. Essentially, Judge Adio's point seems to have been that both parents lived in the UK. Therefore, arguably, E– ECC 1.6 (b) did not apply as that rule was directed at cases where one parent only had parental responsibility. Here, the appellant’s father was present in the UK. This meant that this was not a case of sole responsibility at all. He accepted that this may be to be a “new matter” for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002. That sub-section provides that on an appeal to the FTT and the UT that the tribunal must not consider a “new matter”, as defined by section 85 (6), but it was possible for the respondent to consent to consider a new matter. However, without that consent the UT would not be able to consider it. Nevertheless, Mr Winter argued that there was a strong prospect that if an application were made on a different basis to come to the UK to join both parents the appellant would, on the face of it, be in a “strong position”. He said that his client would be likely to meet the Immigration Rules.
16. Reference was made to MacDonald’s Immigration Law, ninth edition, paragraph 20 – 15 subparagraph 8, where there is reference to the Tribunal considering circumstances in existence at the date of the hearing and an appellant, who is able to show that he or she meets the requirements of the rules at the time of the hearing, should be entitled to succeed on the grounds that the decision was not in accordance with the rules even if he or she did not qualify at the time of the decision. However, this is a reference to section 85 (4) of the 2002 Act and does not deal precisely with the “new matter” point, to which we my attention has been drawn. In footnote number 10 there is reference to the case of Entry Clearance Officer, Manila v Brey [2002] UKIAT 006655 (available on EIN) from which it was submitted that even if both parents were in the UK and even if that were a new matter, the tribunal could consider that fact. But I did not consider that case to be analogous to the present one. I refer to the equivalent passage in the present (10th) edition of that work at paragraph 19.12. This makes the point that the respondent may request time consider a new matter where it is raised.
17. Finally, Mr Winter said that he was neutral as to whether, in the event the tribunal found an error of law, it would need to hold a further hearing in the UT or remit the appeal to the FTT. He said that if the UT was to be require the production of live evidence, this will probably be more appropriate for a face-to-face hearing to be held in Edinburgh but if a more extensive hearing were required it may be more appropriate to remit the matter to the FTT for a fresh hearing. He indicated the approximate listing times within Glasgow area.
18. Miss Everett dealt with the last substantive point first, saying that she did not accept that the change in circumstances could be dealt with. It was a new matter which had not been before the judge. The respondent did not necessarily accept the evidence that the father had been in the UK at the material time (i.e. the hearing) and certainly he was not here at the time of entry clearance application. It was arguable that the appellant should be required to make a fresh application which would be considered in due course by the respondent.
19. She then dealt with article 8, by reference to paragraph 29 of the decision, saying that it was within judge’s discretion to find as he did that sole responsibility for the child appellant fell to the grandparents and not the parents. The parents were entitled to pursue their own family life as they wished. The judge was entitled to conclude that the child's family life with the parents in the UK had not been established. He also applied the sole responsibility test in the relevant part of the rules. The judge had made appropriate findings and conclusions under article 8 were correct.
20. Turning to ground 2, Miss Everett submitted that even if family life between mother and child had been established, proportionality had been properly considered. There had been objective medical evidence, but the judge’s error in the reference to it not being available was immaterial. All matters had been considered and the judge had been entitled to conclude that the sole responsibility test was not met. The judge’s proportionality’s assessment had been correct in all circumstances and section 117A – D were properly considered.
21. Mr Winter briefly replied to say that he had assumed that family life between father and mother had been accepted but it had now become plain that this was not the case. If family life had been established, a proportionality assessment was required. It was argued that the judge’s assessment was inadequate. It was arguable that the judge had to be conflated the question of engagement of article 8 with the extent of interference.
22. Miss Everett said she had no strong views as to the disposal stating that it would be better to sit in Edinburgh for an attended hearing of the Upper Tribunal.
23. At the end of the appeal, I reserved my decision which will be set out having considered the respective arguments and reached appropriate conclusions.
Discussion/the issues
24. The issues for my determination are:
1) Was the judge entitled to conclude that the appellant failed to establish that there was no material interference with the appellant’s human rights?
2) Did the judge carry out a proper proportionality assessment having regard to the fact that it is alleged the appellant’s grandmother is “gravely -ill” and the grandfather is said also to suffer from significant ill-health? In particular, was the judge entitled to reject the medical evidence relating to her grandfather and /or grandmother on the basis that it was not objectively well founded?
3) Was there an obvious error in failing to take into account the fact circumstances had apparently changed since the application was made (both parents supposedly being present in the UK by that time)?
4) Were the judge’s conclusions in all the circumstances sustainable?
25. I will deal with the third ground (was there an obvious error) first as this is the order in which it was dealt with in the oral submissions.
4) The obvious error-additional supplementary ground-arising out of Judge Adio’s observation that both the appellant’s parents were now in the UK and the application should have been determined under a different rule or on a different basis ?
26. The appellant’s parents left China for the UK, apparently, when the appellant was only 19 months of age in December 2010. The application for entry clearance giving rise to the present appeal was made on 22nd of June 2022. This was by the appellant to join her mother, Weizhen Zheng (WZ) the sponsor. A notice of decision was sent to the appellant on 11 January 2023 and the judge subsequently dismissed the appeal. However, Judge Adio considered there to be potentially obvious errors. He was particularly concerned with the fact that both the appellant’s parents appeared to be living in the UK at the date of the hearing including the appellant’s father, Wencai Huang (WH). It appears that the appellant also has a sibling, Chloe, living in the UK, who was believed to be approximately four years old at the date of the hearing.
27. The appeal is under section 82 of the Nationality, Immigration and Human Rights Act 2002 (the 2002 Act) on the basis that the decision would breach the UK’s obligations under the ECHR and the Human Rights Act 1998 (the 1998 Act), section 6 of which requires the respondent to act compatibly with the ECHR. By virtue of section 85 (4) of the 2002 Act the FTT (and the UT) was/are entitled to consider any matter that it thought relevant to the substances of the decision, “including a matter arising after the date of the decision”. But by section 85 (5) of the 2002 Act the FTT or the UT must not consider a “new matter” unless the Secretary of State has given that tribunal consent to do so. A “new matter” is defined by section 85(6) as a ground of appeal listed in section 84 of the 2002 Act, including the ground that the Secretary of State’s decision is unlawful under the 1998 Act, that “(b) has not previously considered (by the Secretary of State) … in the context of the decision”.
28. I understand Mr Winter’s submission to acknowledge that it is principally an issue for the judge making the fact findings, including any judge re-hearing those facts, to take account of circumstances pertaining at the date of that hearing. He said that such a judge must make a “proper assessment” but he appeared to accept that at the date of the hearing before the U T the fact that both parents were present in the UK may have become clearer than it was when the hearing took place in the FTT. At the date of that hearing the appeal was put forward on the basis that the appellant’s mother was the person with “sole responsibility” for the appellant within rule E – ECC .1.6 (b).
29. Mrs Everett does not accept that the facts are uncontroversial, nor has her client had an opportunity to consider this. The UT is only entitled to consider any new matter with the respondent’s consent, which has not been forthcoming. Accordingly, it would be wrong to consider this at the UT stage since it is difficult to criticise the judge for failing to consider a point which had not been raised before the respondent before.
30. The other grounds will now be considered.
Ground 1 – the finding under article 8 is not sustainable in that the judge had apparently found the lack of any family life or that the interference with it failed to cross the required threshold
31. The first ground is that the appellant’s inability to join his mother in the UK did not constitute an unlawful interference with his protected human rights. It was argued that this finding was not open to the FTT, given that family life had been established. In response to this, the respondent argued that this was within the judge’s discretion having regard to the way the case had been put and in particular the fact that the application had been framed on the basis that the appellant’s mother was solely responsible for her upbringing.
32. The related point of contention was the argument that the interference was not of sufficient gravity to engage article 8. Mr Winter argued that this was not a conclusion open to the judge and in any event was inappropriate in the case of a child. He argued that section 117B and the public interest considerations, including the economic well-being of the UK, did not apply in the case of a child.
33. The desire to keep immigration under control were additional matters which may have to be considered under section 117B, a course that was urged on me by Ms Everett. This was separate from the question of whether the threshold for the engagement of article 8 have been engaged in the first place.
34. In deciding the extent of the interference, the judge had been entitled to conclude that there were no more than “emotional ties” when the appeal was heard, given that the appellant had been living with her grandparents since a very young age. I have been taken to a number of the leading authorities by Mr Winter including Agyarko and G M (Sri Lanka) which explained that “exceptional circumstances” did not have to be unique but emphasised that the scales would weigh heavily in favour of the public interest. However, one has to bear in mind that this is not an expulsion case where an appellant has formed a family life in the UK of any duration.
35. The fundamental point is that the appellant contends that the judge was wrong to conclude that this case did not cross the threshold for establishing an unlawful interference with her protected human rights and/or that the judge was wrong to conclude the that the interference was not one of sufficient gravity to engage article 8.
36. On both grounds, I am satisfied the judge erred in suggesting that the appellant’s claim had not crossed the threshold to engage article 8 and that the correct conclusion was that article 8 was engaged but in the light of my conclusion below in relation to proportionality, I am not satisfied those were material errors. In this case, as in many others, that was the key issue to be considered.
Ground 2 - that the judge carried out inadequate proportionality assessment in all the circumstances
37. This involves considering the factual issue regarding the state of the grandparents’ ill-health, the judge’s criticism of the evidence supplied and whether this was justified. The judge’s statement (at paragraph 28) that the lack of “objective” medical evidence “… to inform me of her (the grandmother’s) current condition” appears not to be justified, as Ms Everett acknowledged. This is also an error of fact as there was some evidence. However, having examined that evidence, I am not convinced it was sufficient to be capable of convincing a tribunal that the grandparents were so ill that they were unable to continue to maintain the appellant.
38. I have had regard to Agyarko and GM (Sri Lanka) which emphasise the need to provide proper evidence (see paragraph 31 of GM) in support of a human rights claim outside the rules. Here, the evidence suggested that the grandmother had “arthritis” in her knee joints (see paragraph appendix F at paragraph 26 to 33 of the respondent’s bundle before FTT). Both parents were in their late 60s at the time and the grandmother had an additional problem with her diabetes and gout. There were not medical conditions of sufficient gravity to suggest that they were incapable of caring of the appellant. As for the grandfather’s brain tumour, the medical evidence in the bundle I have consisted of a “certificate” at paragraph 21 and “doctor’s reports” and they do not provide sufficient detail of this. Overall the grandparents were in failing health, perhaps, but the evidence at the hearing was insufficient to show that they were unable to care for the appellant for the remainder of her childhood .
39. For these reasons I consider that, although there were errors in the decision, there was a sufficient proportionality assessment. The errors were not material to the outcome. As Ms Everett pointed out, case was put on the basis that the appellant fell within ECC 1.6 of Appendix F of the Immigration Rules–which requires the establishment of “sole responsibility” on the part of her mother -the sponsor. It is open to the appellant make a fresh application on new evidence. However, based on the application before the entry clearance officer which the judge was considering, the conclusions he came to were ones he was entitled to reach.
Conclusion
40. I refer to the discussion above in paragraphs 25 -39. There is no obvious error in the decision of the FTT that requires the UT to set aside that decision. Although the criticisms of the judge were properly arguable, and in some cases have been made out, they were immaterial to the outcome. Having heard those arguments, I have concluded that the decision was one the judge was entitled to come to the evidence he heard and read. In the circumstances this appeal is dismissed.
Notice of Decision
The appeal against the FTT’s decision is dismissed.
No anonymity direction is made.

Signed Date 24 April 2025

Deputy Upper Tribunal Judge Hanbury