UI-2024-004205

• Status of case: Unreported
• Hearing date: 30 Apr 2025
• Promulgation date: 26 Jun 2025
• Publication date: 11 Jul 2025
• Last updated on: 11 Jul 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004205

First-tier Tribunal No: HU/56525/2024
LH/04492/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 June 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

Secretary of State for the Home Department
Appellant
and

FA
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Chirico KC, Counsel instructed by Bindmans LLP
For the Respondent: Mr Malik KC, Counsel instructed by GLD

Heard at Field House on 30 April 2025


DECISION AND REASONS
1. This is a re-making of a decision by the First-tier Tribunal dated 23 July 2024 which a Presidential panel set aside on 7 March 2025 for the reasons given in the decision at Annex 1.
2. The appellant, a citizen of Palestinian origin currently living in Gaza, born on 1 January 1956, applied on 8 December 2023 to visit the UK for private medical treatment for spinal stenosis and mental health problems. She intends to stay with her British citizen daughter (“the sponsor”) and her daughter’s British husband who have arranged for her to receive private medical treatment.
3. The appellant asserts that she has family life with the sponsor which falls within the scope of Article 8 ECHR and which she wants to develop whilst she is in the UK and that the visit visa application constituted a human rights application, the refusal of which amounted to a refusal of a human rights claim, against which decision there arises a right of appeal.
4. The respondent refused the application for a medical visitor visa on 24 May 2024 on the basis that it was not accepted that the appellant is a genuine visitor who will leave the UK at the end of her visit pursuant to paragraph 4.2(a) and (c) of Appendix V. The original refusal was also pursuant to paragraph 7.2(a)(ii) of Appendix V on the basis that the appellant had not provided a letter detailing the likely costs and duration of her treatment.
5. The First-tier Tribunal found that the decision to refuse the visit visa did not amount to the refusal of a human rights claim and therefore it had no jurisdiction to hear the appeal. The appeal was also dismissed on the alternative basis that the refusal of the visit visa did not constitute a disproportionate interference with the appellant’s Article 8 ECHR right to family life. This was the decision set aside by the Upper Tribunal panel with no findings preserved for the reasons given in that decision.
6. The appeal proceeds on the basis that the refusal of the visit visa dated 24 May 2024 constituted a refusal of a human rights claim under s82 (1) of the Nationality, Immigration and Asylum Act 2002 thereby attracting a right of appeal to the First-tier Tribunal.
Issues in the appeal
7. The parties were not agreed in relation to the issues.
8. Both parties were agreed on the following;
(i) the first issue is whether the appellant enjoys family life with the sponsor which is capable of engaging Article 8 ECHR and if so,
(ii) whether refusing the appellant’s application would amount to a disproportionate interference with the appellant’s and the sponsor’s rights to respect for their family life having regard to all material circumstances and considerations.
9. The appellant submits there are additional issues, namely;
(iii) whether the decision to refuse the appellant entry to the UK interferes with the sponsor’s right to respect for her private life in the UK and whether that interference would amount to a disproportionate interference in her private life, and;
(iv) whether the appellant meets the requirements of Appendix V to the Immigration Rules and specifically;
a) Whether the appellant will leave the UK at the end of her visit and is a genuine private medical visitor
b) Whether the appellant has provided a letter from her doctor detailing the estimated costs and likely duration of treatment
10. The appellant asserts that if it is found that there is an interference in family life, the fact that the appellant can meet the Immigration Rules in respect of visit visas is determinative of the appeal.
11. The respondent submits that whether the appellant can meet the requirements of the visitor rules is not a relevant consideration. The respondent’s position is that the family life limb of Article 8 ECHR does not embrace situations where an applicant seeks to come to the UK for a short and finite period.
The law
Family life between adult family members
12. Lord Bingham in Razgar [2004] UKHL 27 identified a staged approach to the issues which arise in Article 8 cases as follows:
1. Does removal interfere with the exercise of the applicant’s right to respect for his private or family life (in order words is Article 8(1) engaged)?
2. If so, is the interference sufficiently serious as to engage the operation of Article 8?
3. If so, is such interference in accordance with the law?
4. If so, is such interference necessary in the public interest?
5. If so, is such interference proportional to the legitimate aim sought to be achieved?
10. When determining whether family life exists between adult family members the relevant principles are neatly summarised at [44] to [48] of Mobeen v SSHD [2021] EWCA Civ 886 as follows:
44. The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 ("Singh 1"); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 ("ZB"); Singh v SSHD [2015] EWCA Civ 630 ("Singh 2"); Britcits; AU v SSHD [2020] EWCA Civ 338 ("AU"). The position can be summarised as follows.
45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.
46. However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.
47. The ultimate question has been described as being whether or not this is a case of "effective, real or committed support" (see AU at [40]) or whether there is "the real existence in practice of close personal ties" (see Singh 1 at [20]).
48. Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:
i) Whether or not the applicant's right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
ii) Whether or not removal would be a disproportionate interference (a negative obligation).
As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.
11. Additionally as lord Bingham observed in EM (Lebanon) v SSHD [2008] UKHL 64 at [37]:
“Families differ widely, in their composition and in the mutual relations which exist between the members, and marked changes are likely to occur over time within the same family. Thus there is no pre-determined model of family or family life to which Article 8 must be applied. The article requires respect to be shown for the right to such family life as is or may be enjoyed by the particular applicant or applicants before the court, always bearing in mind (since any family must have at least two members, and may have many more) the participation of other members who share in the life of that family. In this context, as in most convention Contexts, the facts of the particular case are crucial”.
12. These principles have been reiterated in Kumari v The Netherlands Application 440151/20 in which the ECtHR gave the following guidance neatly summarised in Mr Malik’s skeleton argument as follows:
a) Family life for the purposes of Article 8 ECHR is “normally limited to the core family” and that “there will be no family life between parents and adult children or adult siblings unless they can demonstrate additional elements of dependence involving more than emotional ties”
b) The question whether additional elements of dependency exist is to be decided on a case by case basis and will often be the result of a combination of elements
c) The caselaw shows that even where a family member is suffering from a very serious medical condition, this may not suffice where it does not “incapacitate the applicant to the extent that he is compelled to rely upon his family’s care and support in his daily life.”
d) Financial dependency on its own had never been considered sufficient to constitute additional ties of dependency and accordingly family life between adult family members.
e) It is trite that there is no predetermined model of what constitutes family life. Family life can exist between adult relatives. There is no presumption of family life, nor is there a presumption that there is not, whether family life exists must be determined on the facts of any individual case and is a question of fact.
13. Drawing these principles together, Article 8 ECHR is not a general dispensing power. As can be seen the test is whether there is “effective or real or committed support”, there is no real distinction between the positive obligation and the negative obligation and the question is whether a “fair balance” has been struck. There is likely to be a combination of elements and financial support on its own is not sufficient to constitute additional ties of dependency. Further, it is important not to be over-prescriptive and comparisons with outcomes in different cases is unlikely to be of any material assistance.
Human rights claims in the context of an application for entry clearance applications and visit visa applications.
14. S113(1) of the Nationality, Immigration and Asylum Act 2002 defines a human rights claim as being:
“a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom or to refuse him entry to the United Kingdom would be unlawful under s 6 of the Human Rights Act 1998” (our emphasis).
15. It is well established that a human rights claim can be made in the context of an entry clearance application and can be implied or express. See Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC) headnote 2:
“An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent's guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced”.
16. Under Article 1 of the European Convention of Human Rights “the High Contracting Parties shall secure to everyone in their jurisdiction the rights and freedoms defined in section 1 of this Convention”. In SSHD v Abbas [2017] EWCA Civ 1393 it is confirmed that the consistent approach of the Strasbourg court in determining the question of whether someone is in the jurisdiction is that it is territorial.
17. Where an applicant resides outside the territorial jurisdiction of the ECHR, in order for Article 8 ECHR to be engaged, it must be established that family life exists between the applicant and the sponsor based in the UK. This precludes an individual making a human rights claim in order to come to the UK in any entry clearance application (including a visit visa) on the basis of family life where they have no family member in the UK.
18. It is possible to apply for entry clearance to develop and intensify family life with a UK sponsor but not to apply for entry clearance based on private life with the aim of establishing family life (see Abbas). Pursuant to Ali v Upper Tribunal [2024] EWCA Civ 372, Article 8 ECHR is not engaged where an applicant wishes to establish private life in the UK where none previously existed.
19. A visit visa application to visit a family member does not inherently constitute a human rights claim.
20. The Court of Appeal observed at [30] in ECO v Kopoi [2017] EWCA Civ 1511:
“In my view the shortness of the proposed visit in the present case is yet a further indication that the refusal of leave to enter did not involve any want of respect for anyone’s family life for the purposes of Article 8. A three week visit would not involve a significant contribution to family life in the sense in which that term is used in Article 8. Of course it would often be nice for family members to meet up and visit in this way. But a short visit of this kinds will not establish a relationship between any of the individuals concerned of support going beyond normal emotional ties, even if there were a positive obligation under Article 8 (which there is not) to allow a person to enter the UK to try to develop family life which does not currently exist.”
21. The facts of Kopoi are that the appellant applied for a visa to visit extended family in the UK. The application was refused because it was not accepted that she was a genuine visitor who intended to return. The appeal was allowed before the First-tier Tribunal under the Immigration Rules. The decision was upheld by the Upper Tribunal. The Court of Appeal found as a fact that family life within the ambit of Article 8 ECHR was not engaged between the appellant and the sponsors as the relationship did not go beyond normal emotional ties. The court noted that the appellant was not a member of the immediate family, there was no dependency on the sponsors, nor was she the beneficiary of any established pattern of support.
22. We are of the view that Kopoi is not authority for the proposition that family life cannot exist between a visitor and a sponsor, nor that the refusal of entry clearance for a visit visa could not come within the scope of Article 8 ECHR. Whether family life exists is the first question to be determined and will be intensely fact sensitive as will the question of whether there is an interference in family life at all. The length of the proposed visit is in our view more relevant to the question of interference and proportionality.
23. We were also referred to Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 where the Court of Appeal said:
“…First as a matter of principle, the question whether there is family life for the purpose of Article 8 is a logically prior question and cannot depend on the purpose for which an application for entry clearance is made. Secondly, the shortness of the proposed visit is if anything an indication that the refusal of leave to enter did not involve any want of respect for the respondent’s family life for the purpose of Article 8.”
24. Ms Onuorah intended to visit her adult brother in the UK. The application was refused because the respondent decided that she was not a genuine visitor who had an intention to return. The appeal was allowed by the First-tier Tribunal and upheld by the Upper Tribunal. The Court of Appeal found that the Upper Tribunal had erred in law by allowing the appeal because the Upper Tribunal had confused the concept of justification for any interference in family life with the logically prior question of whether family life had been established between the relevant persons. The relationship between Ms Onuorah and her brother was between adult siblings and the Upper Tribunal acknowledged that the relationship was weak, neither individual being emotionally dependent on the other. The Court of Appeal had no hesitation in finding that on the facts of Onuorah, Article 8 ECHR was not engaged in respect of family life. We do not understand Onuorah as being authority for a principle that Article 8 ECHR is not capable of being engaged in the context of a visit. In our view Onuorah is authority for the proposition that the first step in any Article 8 consideration is deciding on the facts of the case whether Article 8 ECHR is in fact engaged.
25. The respondent’s policy is that visit visa applications are generally not capable of engaging Article 8 ECHR. The policy states:
The only relationships that may engage Article 8 in visit visa applications are:
• spouse (or other life partner)
• parent (where applicant is minor child)
• minor child.
Even where the claim is based on one of these relationships, the starting point is that Article 8 is not generally engaged where a visit visa is refused.
For example, Article 8 is not engaged in the following circumstances:
• an applicant applies to visit the UK temporarily but there are no reasons why the UK based family members could not visit the applicant
• the applicant wishes to renew a private life established in UK
The UK has a positive duty to respect the right to family life. To decide whether refusal of the visit visa is capable of indicating that the UK had not complied with that positive duty to respect family life you should consider whether:
• the person the applicant intends to visit has ever visited, or could visit, the applicant in their home country or a third country 8
• whether the circumstances of the person in the UK mean that travel is not possible for them
• family life exists for the applicant in their home country, with other family members who are residing there (see ECO (Dhaka) v SB [2002] UKIAT 02212 )
For example, if a minor child of separated parents wishes to visit a parent living in the UK and that parent is unwell so that they cannot travel, then refusal of the visit visa could amount to a failure to comply with the positive duty to respect family life
Circumstances that may displace the presumption that a visit application does not engage Article 8 are rare and will be exceptional. You can only decide whether exceptional circumstances exist by looking at the application as a whole.
26. We are satisfied that the part of the policy which purports to limit human rights claims in visit visa applications to applications for visits between spouse or parents and their minor children is at odds with the principles in Mobeen set out above and also EM (Lebanon) v SSHD [2008] UKHC 64 at 37 where it is said at [40]:
“Refusing to admit, or removing, migrants with no settled rights of residence involves the potential breach of a positive obligation to afford respect to private or family life by allowing a person to enter or remain in the host country. Technically, therefore, the question is whether the host country has such an obligation rather than whether it can justify interference….. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation” (para 106; note that the margin has consistently been said to be “certain” rather than “wide”).
27. An application for a visit visa can in some circumstances engage Article 8 ECHR.
28. The categories of family relationships in visit applications capable of engaging family life is not limited to relationships between spouses or parents and their minor children and can include relationships between adult relatives. Whether the visit visa application is capable of engaging family life will be intensely fact sensitive and depend on whether the visitor has family life with the sponsor. This entails consideration of the quality and significance of the relationship between the visitor and the sponsor and the existence of effective or real or committed support. Where the visitor is an adult visiting an adult relative and they live in different countries, the existence of family life will be manifestly more difficult to establish.
29. A visit visa between distant relatives for the purpose of tourism for instance will be very different from a visit between close relatives where it is established that there is family life.
30. The existence of family life is not determinative of any application, because the applicant will then need to demonstrate that the refusal of the application interferes with family life and this, particularly in the context of visit visas will, as acknowledged in the Home Office guidance, involve consideration of whether family life can be pursued elsewhere. The ease with which a sponsor is able to visit the visitor in their own country or a third country is likely to be a relevant consideration in evaluating whether there is interference of such gravity to satisfy stage 2 of the Razgar test and the proportionality of the decision in general. In principle, one might envisage even a short visit which might engage Article 8 ECHR, for instance where the purpose was for an exceptionally compassionate reason such as being present at the death of a terminally ill close relative where there was ongoing dependency.
Visitor Rules
Genuine intention to visit

V 4.2 The applicant must satisfy the decision maker that they are a genuine visitor. This means that the applicant:
(a) will leave the UK at the end of their visit; and
(b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and
(c) is genuinely seeking entry for a purpose that is permitted by the visitor routes (these are listed in Appendices 3, 4 and 5); and
(d) will not undertake any prohibited activities set out in V 4.5 – V 4.10; and
(e) must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey, any costs relating to dependants, and the cost of planned activities such as private medical treatment.
The hearing
Preliminary matters
31. We extended time to admit the skeleton arguments because neither party objected and the skeletons were required to clarify and refine the issues.
Vulnerable witness
32. Mr Chirico requested that the sponsor be treated as a vulnerable witness because of her poor mental health. The respondent did not object to this. We were satisfied that the sponsor is a vulnerable witness in accordance with Joint Presidential Guidance Note No 2 of 2010 because of her mental health problems as set out in the medical reports before us including PTSD and depression. The reasonable adjustments put in place were short questions, breaks and sensitivity in questioning.
Documentary evidence
33. We had before us the 586 page PDF bundle which was before the First-tier Tribunal including witness statements from the sponsor dated 5 July 2024 and 20 November 2024 and the material supplied by the respondent; a third witness statement dated 6 January 2025, an 111 page PDF bundle of further evidence including a fourth witness statement of the sponsor and a second witness statement from the sponsor’s husband, skeleton arguments and authorities bundles.
Oral evidence
34. The sponsor gave oral evidence and was cross examined. The sponsor’s husband adopted his statement but was not subject to cross examination. The oral evidence is recorded in the record of proceedings and will only be referred to where necessary. In general, Mr Malik for the respondent did not challenge any of the oral or documentary evidence, nor did he assert that the sponsor was not telling the truth about any aspect of the appeal including evidence about the deterioration in her own mental health, the current circumstances in which the appellant is living, nor the appellant’s intentions.
35. We admitted a statement and heard evidence from Ms Pearson, the senior policy manager in the Human Rights and Family policy unit with responsibility for family policy including Appendix FM of the rules. Her evidence was that the Secretary of State is concerned about the potential proliferation of applications for entry clearance from individuals from Gaza and other conflict zones if these individuals are granted entry clearance because they have a family member in the UK who has been providing them with financial or emotional support. This would potentially undermine immigration control. She set out the statistics in respect of individuals of Palestinian nationality. In the last five years there were 3,500 grants of entry clearance. Her view was that in the light of publicity in relation to IA & Ors v SSHD [2025] UKAITUR U12024005295 there would be an increase in applications. There are currently 20 cases involving 120 people from Gaza. She expressed concern about the provision of public services. She also said that these concerns arose in relation to other nationalities who live in conflict zones.
36. In cross examination, she was unable to clarify whether the grants of applications for entry clearance were inside or outside the rules, although she clarified that they did not include visit visa applications. She did not have any statistics on the number of visit visa applications or grants. It was put to her that she was suggesting that an application under the rules should be treated less favourably if the applicant was from Gaza. She said she had prepared her statement in relation to the public impact on public services and immigration control and as a result of there being a lack of evidence in another case of the number of people who could potentially be sponsors. She confirmed that the 3,500 grants were correct. She was not able to provide any statistics to suggest that there had been an increased number of applicants from Gaza following IA, nor was she able to confirm whether the 120 cases postdated the media attention. It was put to her that this appeal is different from a situation where a sponsor is sponsoring multiple family members. She agreed that Article 8 appeals should be determined on a factual basis. In re-examination Mr Malik asked her when she was referring to the Immigration Rules, if she were referring to every category of Immigration Rules or Appendix FM. She responded Appendix FM. We agree with Mr Chirico that this was a leading question. She also said that from a policy perspective visit visa rules do not reflect the public interest in the Article 8 proportionality assessment. The family route is the Article 8 route.
Submissions
37. Mr Malik for the respondent focused on the fact that the appellant is outside the United Kingdom. She resides in Gaza and is not therefore within the jurisdiction of the United Kingdom for the purposes of Article 1 of the ECHR which provides that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of the Convention”(our emphasis). Mr Malik drew our attention to SSHD v Abbas [2017] EWCA Civ 1393 at [24]. He argued that the consistent approach of a contracting state for the purposes of Article 1 is that it is primarily territorial. The family life limb of Article 8 ECHR can only be engaged by reference to the rights of the sponsor in the UK which provides the jurisdictional peg.
38. He submitted that because the appellant is outside the UK, has never lived in the UK and has not established a private life that she wishes to resume in the UK, there is no jurisdiction. We were referred to Ali v Upper Tribunal [2024] EWCA Civ 372 in this respect. He asserted that the private life limb of Article 8 ECHR was incapable of being engaged.
39. At paragraph 21 to 22 of his skeleton argument, he asserted that Beoku Betts v SSHD [2009] AC 115 is not authority for the proposition that individuals outside the UK’s jurisdiction themselves acquire rights under Article 8 ECHR merely because one member of the family unit is within the jurisdiction.
40. He submitted that the family life limb of Article 8 ECHR does not cover situations such as the appellant’s, where the appellant is only coming for a short and finite visit, will not live permanently in the UK nor make it her home and will return to Gaza. He referred to the reasoning of Sales LJ in ECO v Kopoi [2017] EWCA Civ 1511 which held that the family life limb of Article 8 ECHR does not embrace such a situation. This he submitted was endorsed and followed by the Court of Appeal in SSHD v Onuorah [2017] EWCA Civ 1757.
41. Alternatively, he argued that even were the appellant seeking to stay in the UK for a longer or prolonged visit that Article 8 ECHR was not engaged because as a general rule there will no family life between parents and adult siblings unless they can demonstrate additional elements of dependence involving more than emotional ties. Where adult children have moved out and founded their own families this may be a significant factor pointing against a finding of family life. He referred us to the relevant authorities including the recent authority of Kumari v The Netherlands Application 440151/20.
42. He submitted that applying the principles above to the facts of the appellant’s case that there is no protected family life between the appellant and the sponsor, the decision of the respondent does not interfere with the sponsor’s right to respect for family life and in any event the interference does not have consequences of such gravity to potentially engage the operation of Article 8 ECHR.
43. He also addressed us on proportionality. He submitted that the Immigration Rules contain provisions relating to family and private life under Part 8, Appendix FM and Appendix Adult Dependent Relative. He argued that the appropriate Immigration Rules when considering the issue of proportionality in this appeal are the rules in respect of adult dependent relatives. The failure of the appellant to qualify as a family dependent relative is a relevant and important consideration in the proportionality assessment because the Immigration Rules reflect the assessment of the general public interest made by the responsible minister and endorsed by parliament.
44. He submitted that it is not appropriate for the Upper Tribunal to embark on an assessment as to whether the appellant meets the requirements for entry clearance as a visitor. In any event those requirements are not met because the appellant has not been able to demonstrate that she will return to Gaza.
45. He argued that the public interest is significantly undermined by a construction of the reach of Article 8 ECHR that extends to a very large number of people affected by conditions of humanitarian crisis or armed conflict. This argument, he asserts, is material to the balancing exercise under Article 8 ECHR. The applicant does not qualify on Article 8 ECHR grounds under the rules. The government have not devised a resettlement scheme as in the context of Ukraine or Hong Kong as a matter of public policy. These schemes are reliant on the discretion of the Secretary of State. He submitted that if Article 8 ECHR extends as far as the appellant’s argument would have it, that there would be little need for such schemes. This would also undermine the general administrative desirability of applying known rules if a system of immigration control is said to be workable, predictable, consistent and fair between one applicant and another.
46. Finally, he argued that Article 3 ECHR considerations have no role to play in the assessment of proportionality under Article 8 ECHR in this context. Article 1 definitively excludes the possibility of an applicant outside the UK relying on Article 3 to seek entry clearance on the basis of a risk of death in the country of origin.
47. He submitted the impact on the sponsor would not render the refusal of the appellant’s application for entry clearance disproportionate. He submitted that the decision is not disproportionate, given the statutory considerations and for the reasons given.
The appellant’s submissions
48. Mr Chirico relied on his detailed skeleton argument. He took us through the caselaw on family life between adult relatives. He submitted that in this appeal there is jurisdiction because the sponsor has private life in the UK and family life with her mother. He argued that to deny the appellant entry is an interference in the sponsor’s private and family life which is disproportionate because the appellant meets the requirements of the immigration rules or in the alternative because the refusal of entry would result in unjustifiably harsh consequences.
Factual findings
49. The facts in this appeal are not in dispute. The sponsor was a particularly compelling witness who engaged with the Tribunal and was manifestly trying her hardest to give truthful, careful and detailed evidence. She has provided lengthy and detailed statements to the Tribunal dated 17 May 2024, 5 July 2024, 20 November 2024, 7 January 2025 and 14 April 2025, which were all internally consistent and which were entirely consistent with her oral evidence. We were particularly impressed by her oral evidence. For instance she candidly gave evidence that in 2022, she tried to prevent her mother from leaving Jordan and returning to Gaza but did not succeed because her mother was determined to return to her homeland. The sponsor’s husband’s evidence was consistent with that of the sponsor. The sponsor’s oral evidence was also supported by consistent documentary evidence including for instance schedules of payments, bank statements, wage slips and evidence of money transfers.
50. The respondent did not attempt to challenge the evidence of the sponsor in cross examination and did not submit that she or her husband were not credible witnesses in submissions.
51. Likewise, the respondent did not make any submissions in respect of the extensive medical evidence relating to either the appellant or the sponsor, nor the proposed course of treatment in the UK. We therefore place weight on the medical evidence before us which we find to be reliable. In respect of the appellant we had before us evidence of a CT scan at a Red Crescent radiology centre, medical receipts, a diagnosis from Dr Dabbas at Neuron Brain and Spine Clinics and in respect of the sponsor, GP records, a letter from Ms Yates a BACP accredited trauma psychologist and medical reports from Dr Heke dated 7 July 2024 and 14 January 2025.
52. The appellant is the mother of the sponsor. She is a Palestinian national. She is currently 67 years old.
53. The appellant has spinal stenosis which causes her severe and chronic lower back pain and left sided sciatica with numbness as well as paraplegia. A 2020 MRI scan of the lumbar spine showed a lumber disc prolapse with canal stenosis.
54. She will receive private medical treatment from Princess Margaret Hospital in Windsor. The treatment will initially comprise of physiotherapy, pain management and spinal injections. If this treatment is not effective, the appellant will have decompression surgery. The estimated total cost is in the region of £20,000. The estimated treatment time is three to six months and if the appellant needs an operation she will need a recovery period of 6 weeks and a further 6 weeks physiotherapy.
55. The appellant will also receive counselling and medication such as anti-depressants or other medication for her mental health problems from Dr Elhamoui, Consultant in General Adult Psychiatry and Medical Psychotherapy. The fees are £300 for an initial assessment and £200 per hour for follow up sessions.
56. The sponsor has over £55,000 available to pay for her mother’s medical treatment in the UK as well as her living expenses. These are her husband’s savings. She also has savings of £5,000 and a regular salary of over £2000 per month.
57. The appellant was born in Jordan in 1956. As a 13 or 14 year old child she was forced into an arranged marriage with a much older man who was in his mid-thirties at the time. The appellant left school after her marriage. The marriage was unhappy. The appellant still feels enormous anger towards her own father and ex-husband for being married so young. The appellant’s husband was unloving and aggressive and beat the appellant. She had nine children.
58. The appellant’s husband was ill (probably as a result of working in a plastic factory) and he was not able to work. The appellant was not able to work either as she was caring for her children and husband. The family were living as refugees in Jordan and did not have the same rights as Jordanian citizens.
59. At some point the appellant’s husband decided to go to Gaza on holiday and he took the appellant’s son and four of her daughters with him. The trip was supposed to last three weeks but they were not able to return because when they crossed into Palestine they lost their refugee status and were unable to return to Jordan.
60. The appellant was very distraught by this separation. The sponsor was the oldest child who remained with the appellant (being the second oldest child in the family). The remaining three children were very little at the time so the sponsor shared the responsibility for bringing up the family with her mother. The sponsor started working in a grocery store at the age of 11 to support her mother and siblings whilst they lived in Jordan. She gave all of her earnings to her mother.
61. After about five years of separation, the appellant decided to visit Gaza with her four daughters (including the sponsor) to bring her remaining children back to Jordan. She obtained visitor permits. At this point the sponsor was aged 14 or 15. However, their documents were also cancelled as soon as they crossed the border. By this point the appellant’s husband was elderly and unwell and the appellant herself was not able to work because she was lacking in education and looking after the family. The sponsor took a job in Gaza to support her family. She continued to work to support the family throughout her entire childhood and adulthood until she left Gaza. She worked whilst she was at school, whilst she completed her degree in English literature at the University of Gaza and afterwards worked in a charity in Gaza to support her mother and siblings. The only income came from the sponsor and the family were living in poverty and overcrowded conditions, often going without food. There were also bombardments at times.
62. The appellant was very depressed and unhappy in her marriage and confided in the sponsor from when she was very young child. The appellant shared personal things with the sponsor which she did not share with her other children because the sponsor is the second oldest child and was the oldest child left with her when they were in Jordan (separated from the remainder of the family) for several years and because of the long term financial support that the sponsor has provided to her mother. The appellant continues to share intimate information with the sponsor . For instance she confided to the sponsor that she is incontinent and has confided in the sponsor about her most intimate personal feelings including her suicidal thoughts.
63. The bond between the appellant and the sponsor is stronger than that between the appellant and her other adult children although she does have a strong relationship with her daughters in Gaza and her grandchildren.
64. Eventually the appellant and her husband were divorced. He died of cancer in 2009.
65. The sponsor lived with her mother as part of her household from 1975 when she was born until 2006.
66. The sponsor assisted her mother to purchase a house in Gaza city in August 2006 for USD 35,000 raising USD 10,000 by selling her car, borrowing money and using her savings. The sponsor and appellant went house hunting together and chose the flat because it was near a market the appellant loved, in a lively area. Until they purchased the house the sponsor had always paid the rent on her mother’s property. The family intend to do up the flat after the war.
67. In 2006, the sponsor travelled to the UK to do a Master’s degree for which she had been awarded a scholarship. She was intending to return to Gaza after her degree and move back in with her mother, sisters and brother in law. She was unable to return initially because of the political situation. Hamas had taken over and the borders were blocked and then because she obtained work and met her husband. The couple met in 2008 and married in 2013. The sponsor’s husband has four adult children from a previous relationship. The sponsor and her husband do not have children together.
68. She is not currently able to visit her mother in Gaza.
69. The sponsor and appellant have not lived as part of the same household since 2006.
70. The appellant has only been able to visit her mother three times since she left Gaza. She travelled to meet her mother in Turkey twice and then organised a longer period of time to stay with her mother with extended family members in Jordan between August and November 2022. The appellant had treatment for her spinal condition in Jordan. The sponsor and appellant had daily communication by telephone prior to the current conflict. It has been more difficult to communicate but they continue to communicate as frequently as possible.
71. The family perception is that because the sponsor does not have any other children unlike her siblings and has always been the appellant’s financial provider that she has responsibility for her mother.
72. The sponsor has been providing her mother with financial support since she left Gaza in 2006. She also arranged for her to receive parcels of medication, painkillers, make up and underwear through individuals in her charity.
73. When the war started she was able to get some food and female hygiene products to the appellant and her sisters.
74. The sponsor continues to provide ongoing financial support. When the war first started she made transfers into her sister’s bank account which could be collected through an exchange office for a large fee. She is now sending money through “Wise” which goes through a bank account in Europe and then Jordan to a transfer agency in Gaza. The agency takes a large fee. The sponsor also occasionally sends some money to her sister’s bank account. She also sends money to an individual who has an exchange business in Gaza but has family members in Europe. After the money is deposited in Europe, the exchange in Gaza is notified and he gives the money to the appellant minus the fee. The sponsor is sending increasing amounts because the price of food has increased. The sponsor is currently the only person providing her mother with financial support. Her sister based in Jordan has lost her employment.
75. In the past, the sponsor used to telephone the appellant every week on a Saturday. After the arrival of the internet she called her mother every day until the start of the war in October 2023. The sponsor currently texts the appellant every day even if she cannot respond. She also talks to the appellant as often as possible which is currently difficult as the appellant has to go to a local shop to charge her phone.
76. The sponsor provides her mother with emotional support. Her mother shares with her private and intimate information about her health problems which she does not share with her other children. The sponsor provides her mother with reassurance.
77. The appellant is currently living in her old home in Gaza city with two daughters, one son-in-law and grandson. The building is bomb damaged and there is no electricity or running water. Food is in short supply. Conditions are very poor. The appellant is close to her daughters in Gaza but is closer emotionally to the sponsor.
78. Another daughter is in Turkey, two daughters are in Jordan and her son is in Greece. Two further daughters live in the Al Mawasi camp. They are married with families. After the war started the appellant and her two daughters left their home in Gaza city and moved to the Al Mawasi camp and lived in a temporary shelter.
79. The appellant’s health has deteriorated. She now has double incontinence and has been told that she needs a CT scan. She is not able to obtain the necessary treatment in Gaza because the hospitals have been destroyed and any half functioning hospital is overrun and prioritising more severe injuries. She has very high blood pressure. Her mobility is poor. It is not possible to obtain pain medication or anti-depressants.
80. The sponsor was diagnosed with PTSD in 2009 as a result of the experiences she had growing up in Gaza as a child. She has been treated for depression ever since which has fluctuated over the years. She is taking sertraline.
81. The sponsor’s mental health has deteriorated since the start of the war. She has been diagnosed with severe PTSD with major depressive disorder. She is very stressed about the situation in which the appellant finds herself. She is worried about her mother being in pain and being hungry and she is worried about her mother being injured. She has started having therapy again.
82. She describes feeling a sense of dread since January 2025. She is very worried about her mother’s health, the fact that her mother has not been able to obtain test results for her blood pressure and ECG and that she cannot get a CT scan or receive any treatment for her medical conditions. She feels guilty that she is safe in the UK whilst her mother is in Gaza. The long and burdensome immigration process for applying for the appellant to come to the UK has also increased her anxiety and depression.
83. The stress became so severe that she was on compassionate leave and sick leave in February and March 2025. She is receiving counselling through work and is hoping the sessions can be extended. She is not entitled to take further sick leave but cannot fully function at work and is struggling to cope.
84. She has terrible nightmares and wakes up screaming. Her poor mental health is impacting on her marriage, her sleep and her diet.
85. If her mother is permitted to come to the UK for medical treatment, her mental health will improve.
86. If the appellant is permitted to come to the UK she will benefit from treatment for her back, her mental health will improve and she can live in dignity for a temporary period of respite. The appellant and sponsor will develop their family life together in the UK providing each other with emotional support and care.
87. The appellant is intending to come for a long visit of six months. She will not remain in the UK unlawfully.
88. The sponsor will provide financial support for her mother both in terms of paying for private medical treatment and in terms of supporting and accommodating her mother. There is no burden on the taxpayer.
89. The appellant previously visited Turkey in 2011, 2012, 2013 and 2014 and returned at the end of her visits. She also visited Jordan for six months in 2015 and returned at the end of her visit as well as after the more recent visit in 2022.
90. The appellant intends to return to Gaza after her treatment. She does not speak English and has one daughter in the UK. She has a large extended family in Gaza. She has strong cultural, linguistic and social ties to Gaza. She has already returned to Gaza from Turkey and Jordan on multiple occasions despite ongoing problems there. She is attached to her home and her homeland. She is a very stubborn and strong willed person.
91. We address the following issues in turn.
Jurisdiction
92. It is not asserted by the appellant that she wishes to establish private life in the UK. In our view, both parties were in agreement with the principles in Ali which has no bearing on this appeal because Ali concerns private life. The jurisdictional peg in respect of family life is provided by the sponsor in the UK. We do not understand Mr Malik to be arguing otherwise. If we are satisfied that the sponsor has family life with the appellant, Article 8 ECHR is engaged in respect of the sponsor’s protected family life.
Visit visa applications and family life
93. Having had regard to Mr Malik’s submissions, the Home Office policy and the authorities of Kopoi and Onoruah and following the discussion above, we are satisfied that the “prior question” is whether Article 8 ECHR is engaged in respect of family life and it matters not what type of application is being made. We do not agree that Article 8 ECHR in respect of family life is incapable of being engaged in the context of a visit visa application, nor when the visitor and sponsors are adult relatives. The relevance of the type of application arises in the context of whether there is interference of sufficient gravity and in the proportionality exercise.
Does the sponsor have private life in the UK?
94. The answer to this is yes. The sponsor is a British citizen. She has been residing in the UK since 2006. She completed a Masters Degree in the UK. She lives in the UK with her British citizen husband with whom she has been in a relationship since 2008 and has many friends in the UK. She works for a charity and has done so since 2015. She pays taxes. She is receiving medical treatment. Mental health is a core component of private life (Bensaid v UK (2001) 33 EHHR 205). Article 8 ECHR is manifestly engaged in respect of the sponsor’s private life.
Does the refusal of entry clearance to her mother interfere in the sponsor’s private life.
95. The refusal of entry clearance has impacted on the sponsor’s mental health as set out in the ways described in the factual findings above. Her mental health has declined dramatically because of her mother’s inability to come to the UK to obtain medical treatment. We have also accepted the unchallenged medical evidence before us that there would be a significant improvement in the sponsor’s mental health were her mother be permitted to join her for a long visit to receive medical treatment because the primary cause of her current poor mental health is the worry about her mother’s declining health, lack of treatment and proper care. We therefore find that the refusal of entry clearance has interfered with the sponsor’s private life.
Do the sponsor and appellant have family life protected by Article 8 ECHR?
96. We emphasise that this assessment is entirely fact sensitive in line with all of the caselaw including Kumari v The Netherlands. We have made detailed findings on the history of the relationship between the appellant and the sponsor above, their respective health and personal circumstances. When making this assessment we take into account the following factors;
97. The sponsor and the appellant lived together in a household from 1976 to 2006 for period of thirty years. During part of that time they lived together in Jordan, exiled from the majority of the rest of the family who had returned to Gaza. During that period the sponsor was the oldest child remaining in Jordan and the appellant was emotionally and financially dependent on her daughter. The appellant has been continuously mainly financially supported by the sponsor since the sponsor was 11 years old. The sponsor was the main financial provider for her family even when she was at school and university and thereafter when she obtained a job in Gaza. She contributed her own money to assist her mother to purchase a flat in Gaza City. The sponsor has continued to support her mother financially throughout her adult life and continues to do so. At the current time she is the sole financial provider for her mother. The appellant is now solely reliant on the sponsor in the UK to buy food to survive because of the prohibitive cost of food.
98. The sponsor is also viewed by the rest of family as being responsible for the appellant because she has no children of her own.
99. When the sponsor left Gaza she was initially intending to return and live in the flat which she assisted her mother to purchase as part of her mother’s household. The initial separation between the appellant and sponsor was as a result of political events. The sponsor was then offered a job, met her husband and married and formed her own family unit with her husband which is why she remained in the UK.
100. Over the years the sponsor and the appellant used to communicate on a daily basis. They continue to communicate regularly, even in the current difficult circumstances and would communicate more if possible.
101. We place significant weight on the longstanding history of mutual emotional support between the sponsor and the appellant. This emanated from the sponsor’s childhood when her mother was very depressed because of the abusive relationship she had with her husband, details of which she shared with the sponsor. The sponsor continues to provide the appellant with significant emotional support. The appellant shares confidential and personal information with the sponsor that she does not share with other members of the family. The appellant is also particularly dependent on the sponsor emotionally and financially at the current time because of the extremely difficult circumstances in which she is living including the prohibitive costs of food and her fear of being injured or harmed. The separation is causing the sponsor distress and impacting on her ability to carry on with her normal life.
102. We take into account that there have been very few visits by the sponsor to the appellant over a long period. But we also note that frequent visits have not taken place primarily because of circumstances outside the appellant’s and sponsor’s control and was not as a matter of choice. This is as a result of the difficulties for the sponsor to enter and leave Gaza and the difficulties for Palestinians to travel to other countries. Nevertheless, there were two visits by the sponsor to the appellant when the sponsor visited Turkey and the sponsor made arrangements with her work so that she could go for a long visit to Jordan in 2022 to strengthen her bonds and ties with her mother whilst the appellant was receiving medical treatment there, which in our view indicates the strength of the relationship.
103. We also take into account that the sponsor and appellant have not lived in a family unit together (apart from three months in Jordan in 2022) since 2006. We give weight to the fact that the appellant does have close family relationships with other relatives in Gaza in particular another daughter and her husband with whom she currently resides and that she has had some other financial support from other relatives in the past.
104. Taking into account the evidence in the round, we are satisfied that the relationship between the appellant and sponsor exceeds the normal emotional ties between adult family members and that there is effective, real and committed support both in terms of financial and emotional support. There is the existence of close personal ties.
105. Gathering all of these facts and principles together, on the unique and exceptional facts of this appeal we find that family life exists between the sponsor and the appellant despite them being adult relatives and, despite them not living in a family unit for many years and the small number of visits. We find that the consequences of ongoing separation are of sufficient gravity to engage Article 8 (1) ECHR because of the deteriorating mental health of the sponsor in the UK, and the real possibility that they may never be able to have family life in person together in the future.
106. We find that the refusal of entry clearance amounts to an interference with this family life because the sponsor is physically unable to visit her mother in Gaza to develop their family life in that country and it is not suggested that during the current time they could spend time together elsewhere. The appellant and sponsor are unable to have face to face contact at a time when they particularly need each other and the refusal of entry clearance is depriving the development of their family life through the provision of practical and emotional support. We also note that the appellant is intending to come for a relatively long visit of six months. This is a very different factual scenario to one where there is a short visit which could take place in a different country.
Is the interference disproportionate to the legitimate aim pursued.
107. This, we find contrary to the submissions of Mr Malik, entails firstly consideration of whether the appellant meets Appendix V of the Immigration Rules which is the immigration rule under which she applied.
108. We state at the outset that we disagree with Mr Malik’s submission (made for the first time in the skeleton argument served shortly prior to the hearing and not raised at any earlier point in the respondent’s review or throughout this long appeal process) that the relevant rules are the “adult dependent relative rules” rather than the private medical visitor rules because this was not the application that the appellant made. She made an application to obtain private medical treatment for her back and her depression and to visit her daughter in the UK with the express intention of returning to Gaza. She has always been clear that she intends to come to the UK for a visit only and there is no evidence before the Tribunal that she wishes to settle permanently in the UK. The appropriate application for her to make was therefore a visit application. If she had intended to remain in the UK she would have applied under the appropriate rule for settlement.
109. The relevant immigration rules are the rules on medical visits. No issue is taken with the appellant’s medical condition. It is not submitted that she does not need medical treatment nor that treatment is available in Gaza. Mr Malik also did not seek to pursue the reason given in the decision that the appellant did not provide sufficient evidence of her length of treatment and cost. We state for completeness that the evidence of this in the form of letters from the medical professionals are sufficient to satisfy us the appellant has provided evidence of the estimated costs and likely duration of the treatment which is for a finite period and where the treatment will take place. There is no doubt that the sponsor and her husband are in a position to bear the financial cost. We find that the appellant can meet paragraph 7.2(a)(ii) of Appendix V of the immigration rules.
110. We also take into account that unlike other visit visas there is specific provision in the Immigration Rules to extend visit visas in order to continue private medical treatment. The rules were manifestly written with the intention to permit medical visitors to remain longer than six months if that is what their treatment requires.
111. The focus of the respondent’s guidance and the Upper Tribunal guidance in Sawmynaden(Family visitors- considerations) [2012] UKUT 00161 (IAC) is the intention behind the visit which is reflected in the wording of the refusal.
112. We have carefully considered the evidence of the appellant’s intention which was given by the sponsor and her husband. The sponsor and her husband have always been adamant that the appellant would, come what may, return to Gaza because it is her homeland, she has her own flat there; it is where she feels socially, culturally and linguistically integrated; she has friends and family in her neighbourhood and she has close and extended family elsewhere in Gaza. This is in contrast to the situation in the UK where she only has one daughter. We accept the sponsor’s evidence that her mother would be lonely and isolated in the UK because she does not speak English and loves chatting to people in the community. As an example of her mother’s desire to live in Gaza, she cites two occasions on which her mother returned to Gaza despite knowing the risks when she could have lived safely in Jordan. The first was when the appellant and sponsor returned to Gaza together to rejoin the remainder of the family. The second was when the sponsor visited the appellant in Jordan in 2022. We also note that as soon as the ceasefire took place, she returned immediately to her flat in Gaza City. The appellant also returned to Gaza after her trips to Turkey in 2017, 2018, 2019 and 2020. We are not able to speculate on what practical difficulties may arise so far in the future.
113. The appellant describes her mother as being stubborn with a will of her own and we accept her evidence. We find that the appellant’s intention of coming to the UK is genuinely to access medical treatment as a visitor and have some respite. We find that she does not want to settle permanently in the UK and that the application for private medical treatment is a genuine application which has not been made to circumvent immigration control. In this respect we take into account the background evidence as well as judicial note of the deep attachment that many Palestinians have with their land for historical and political reasons. She may also visit for up to a period of a year if she is eligible to extend her visa and we accept the sponsor’s evidence that her mother would make the appropriate application if necessary and would remain within the immigration laws.
114. We find that the appellant is a genuine visitor who will leave at the end of her visit and that she can therefore meet paragraph 4.2 of Appendix V of the Immigration Rules.
115. In our view this is determinative of the appeal as submitted by Mr Chirico in accordance with TZ(Pakistan) and PG (India) [2018] EWCA Civ 1109. The appellant can meet the requirements of the immigration rules and there is therefore no public interest in refusing her entry to the UK.
116. Given that we find that this is determinative of the appeal we see no need to address any of the other submissions made in respect of the wider proportionality exercise.
Notice of Decision
117. The appeal is allowed pursuant to Article 8 ECHR


R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber


26 June 2025

Appendix 1



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004205

First-tier Tribunal No: HU/56525/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

THE HON. MR JUSTICE DOVE, PRESIDENT
UPPER TRIBUNAL JUDGE L SMITH
UPPER TRIBUNAL JUDGE OWENS

Between

F A
(ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr D Chirico KC, Counsel instructed by Bindmans LLP
For the Respondent: Mr Z Malik KC, Counsel instructed by GLD

Heard at Field House on 14 January 2025

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

DECISION AND REASONS
1. The appellant a Palestinian national, born on 1 January 1956 and currently living in Gaza appeals against the decision of a First-Tier Tribunal Judge promulgated on 23 July 2024 dismissing her appeal which was brought on human rights grounds.
2. The appeal arose as a result of the appellant’s application dated 8 December 2023 for entry clearance as a visitor for private medical treatment. The appellant has various health conditions including a L4-L5 disc protrusion of her spine and lumbar disc prolapse with spinal stenosis. She has chronic back pain and depression. She is living in difficult conditions in Gaza. The appellant’s older daughter (“the Sponsor”), a British citizen who is resident in the UK, has arranged for her mother to receive private medical treatment in the UK. The two are said to have a close relationship because the British daughter was the appellant’s oldest child who assisted her mother to bring up the younger children of the family and later provided financial and emotional support to her mother. The Sponsor also has poor mental health (PTSD) which is exacerbated by worrying about her mother. The application for entry clearance was refused on 24 May 2024 which is the decision under appeal.
3. At the end of the hearing, we indicated to the parties that we were satisfied that Ground 1 was made out because there was a material error of law by the Judge in finding that there was no jurisdiction to determine the appeal and that we intended to set aside the appeal decision in its entirety. We reserved the question of disposal. We now give reasons for our decision.
Decision of the First-tier Tribunal
4. The Judge dismissed the appeal on the basis that there was no jurisdiction to hear the appeal because the decision did not amount to a refusal of a human rights claim. The Judge went on to make further findings of fact and law for the sake of completeness, including that family life pursuant to Article 8 ECHR was not engaged between the appellant and the Sponsor and even if Article 8 (1) were engaged, the decision to refuse entry clearance would not amount to an interference with that family life.
Grounds of appeal
Ground 1
The Judge erred in finding that the refusal of the appellant’s application for entry clearance was not a refusal of a human rights claim and therefore that there was no jurisdiction.
Grounds 2 to 4
The Judge materially erred in law in her approach to the medical evidence by giving her own opinion on the appellant’s medical condition without disclosing what expertise she had to make those findings; the Judge failed to take into account the Sponsor’s husband’s evidence in relation to the appellant’s intention to return or alternatively failed to give a reason for rejecting that evidence; and the Judge’s approach to Article ECHR was materially flawed. It was irrational for the Judge to find that family life was not engaged on the Judge’s own findings and the Judge failed to take into account material evidence in relation to the Sponsor’s mental health.
Permission
5. Permission was granted on 23 September 2024 by Upper Tribunal Judge Reeds on the basis that it was arguable that the Judge erred in her consideration of jurisdiction.
Rule 24 response
6. A rule 24 response was provided by Mr Malik on 24 October 2024 and on 21 November 2024 Mr Chirico provided a rule 25 response and rule 15(2A) notice.
Procedural matters
7. Both parties confirmed that they had sight of all the documents which included the rule 24 response, rule 25 reply and rule 15(2A) application dated 21 November 2024 containing an updated statement and an authorities bundle.
8. Both Counsel helpfully provided us with skeleton arguments and made detailed submissions which are recorded in the record of proceedings and to which we will refer below as necessary.
The history of the application and decision
9. We set out the history of the application and decision in some detail to provide context for the Judge’s decision.
10. The appellant applied for entry clearance as a visitor for private medical treatment on 8 December 2023. The respondent initially refused to consider the application because the appellant was unable to enrol her biometric information. On 2 May 2024, further to an exchange of pre-action letters, the respondent agreed to predetermine the appellant’s application (that is to make an “in-principle” decision on it in advance of biometric enrolment) and asked the appellant to send in any further information in support of her application within ten days.
11. On 17 May 2024 the appellant’s representatives complied with that request and attached further evidence. In that letter there was reference to Article 8 ECHR. The letter stated:
“Article 8 ECHR
Article 8 of the ECHR protects a person’s right to respect for his/her private and family life from unjustified interference. Such interference can only be justified if (iii) it is in accordance with the law; (iv) it pursues a legitimate aim; and (v) it is proportionate to that legitimate aim. It is clear from all the circumstances, including those set out in the statement of [the Sponsor], that family life is established between her and her mother, [the appellant]. [The Sponsor] and [the appellant] have, and have always had, a real and committed relationship despite the geographical distance which has unavoidably been placed between them since 2007. [The Sponsor] has provided financial, practical and emotional support to her mother and she has remained in very regular contact with her, including visiting her overseas.
We remind you that Article 8 protects the right to respect for the actual and potential family life of families between the UK and other countries and it would, therefore, be unjustified in this case to suggest that the fact that [the appellant] and [the Sponsor] have been physically separated has any impact on the engagement of their Article 8 rights.
[The Sponsor] has experienced a deterioration in her mental health as a result of the impact of the war in Gaza on her mother. This is very likely to deteriorate further if her mother’s application is not granted. The impact on [the Sponsor] (and her mother’s) mental health has been contributed to by the Home Office delays in giving proper consideration to [the appellant’s] application which has now been pending for 6 months.
As has been set out above, taking into account the fact that [the appellant] seeks a temporary period of permission to stay in the UK to find respite from her current circumstances and to receive vital medical treatment, it would be an entirely disproportionate interference with her Article 8 rights and the Article 8 rights of [the Sponsor] if her applications were to be refused.”
12. On 24 May 2024 the application was refused on the basis that it was not accepted that the appellant was a genuine visitor who would leave the UK at the end of the visit pursuant to paragraphs V4.2(a) and (c) and V7.2. (a) (ii) of Appendix V to the immigration rules.
13. The respondent confirmed that all documents and information submitted as part of the application had been considered and then said:
“I am satisfied that your application is not capable of engaging human rights and therefore a human rights claim has not been made.”
14. The refusal however went further than this. The respondent also said:
“To engage Article 8, the claim must demonstrate a family relationship and the relationship in question must be one that can engage the right to respect for family life. Home Office guidance ‘Considering human rights claims in visit application’ states that the only relationship scenarios that may engage Article 8 in visit applications are spouse, parent to a minor or a minor child. Therefore, I am not satisfied that your application can engage the right to respect for family life as the relationship in question is that of a parent (yourself) to an adult (your sponsor)”
15. The respondent then concluded:
“Consequently, this decision to refuse your visa application is not a refusal of a human rights claim and there is no appeal against this refusal.”
16. The appellant appealed against the decision of 24 May 2024. The appeal was said to be against the refusal of a human rights claim and the grounds of appeal were that the decision was unlawful under s6 of the Human Rights Act 1998. On 17 June 2024, a judge considered the issue of jurisdiction and decided that the appellant had the right of appeal and that the matter should be expedited. The appeal was listed for 12 July 2024.
17. On the day prior to the hearing, the respondent uploaded a skeleton argument which raised issues regarding the jurisdiction of the Tribunal to hear the appeal. The appellant responded with further written submissions focusing on the jurisdiction point.
18. At the hearing, the position adopted by the appellant was that the issue of jurisdiction had already been determined by the First-tier Tribunal. The appellant objected to re-visiting this decision. It was submitted that in any event the jurisdiction question had been decided correctly in law in that the Tribunal has jurisdiction to determine the appeal.
19. The position of the respondent was there was no substantive engagement by the Secretary of State in respect of the human rights claim and therefore no refusal of a human rights claim.
20. The Judge considered the question of jurisdiction as a preliminary matter. The Judge decided that she did have the power to review the earlier decision that the Tribunal had jurisdiction. This decision is not challenged. The Judge went onto consider the arguments raised by the respondent in detail. We deal with those below. At [19], the Judge quoted the passage in the refusal letter we have referred to above. The Judge found that applications for visit visas do not inherently include a human rights claim but that this was not determinative of the issue. She found that there was no dispute that the appellant made a human rights claim in the supporting representations. The judge then said this:
“20. Th [sic] question for me to decide is does this amount to a refusal of the appellant’s human rights claim. The appellant’s submission is that because the respondent made reference to the Home Office Guidance, the categories which are deemed capable of engaging article 8 ECHR and the statement that the application is not capable of engaging article 8, this amounts to a refusal of a human rights claim.
…
25. I have considered the respondent’s decision letter as a whole; the only paragraph that directly addresses article 8 ECHR is the one I have quoted. It is important to take that paragraph as a whole. I find that it is clear there has been no substantive engagement by the respondent with the article 8 claim at all. The respondent does no more than state that the application is not even in a category capable of raising a human rights claim. I conclude that the respondent has not refused a human rights claim, and the Tribunal does not have jurisdiction to hear this claim.”
(our emphasis)
21. Ground 1 asserts that the Judge erred in law when she found that she did not have jurisdiction because the decision did engage substantively with Article 8.

The law
22. Mr Chirico for the appellant and Mr Malik for the respondent took us through the legislative background in some detail.
Jurisdiction
23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides:
“a person (“P”) may appeal to the Tribunal where […] (b) the Secretary of State has decided to refuse a human rights claim made by P […]”
24. The nature of the appeal is also defined by the 2002 Act. The Tribunal must determine whether the decision is unlawful under section 6 of the Human Rights Act 1998 (s84(2) of the 2002 Act read alongside s86).
25. In order to decide whether it has jurisdiction to hear a s82(1)(b) appeal, the Tribunal must decide if the respondent has refused a human rights claim.
26. Since this question relates to jurisdiction, it is therefore for the Tribunal itself to decide on an objective basis whether the refusal is a refusal of a human rights claim. The question is hard-edged and does not involve any discretionary judgement.
27. There is no additional requirement that a claim should pass an additional merits test before it meets the definition of a human rights claim or before a human rights claim can be refused. The question of merit is for the Tribunal on its consideration of the substantive appeal.
28. There is no dispute between the parties on any of the above propositions.
Family life between adult family members
29. Lord Bingham in Razgar [2004] UKHL 27 identified a staged approach to the issues which arise in Article 8 cases as follows:
1. Does removal interfere with the exercise of the applicant’s right to respect for his private or family life (in order words is Article 8(1) engaged)?
2. If so, is the interference sufficiently serious as to engage the operation of Article 8?
3. If so, is such interference in accordance with the law?
4. If so, is such interference necessary in the public interest?
5. If so, is such interference proportional to the legitimate aim sought to be achieved?
30. When determining whether family life exists between adult family members the relevant principles are neatly summarised at [44] to [47] of Mobeen v SSHD [2021] EWCA Civ 886 as follows:
“44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 ("Singh 1"); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 ("ZB"); Singh v SSHD [2015] EWCA Civ 630 ("Singh 2"); Britcits; AU v SSHD [2020] EWCA Civ 338 ("AU"). The position can be summarised as follows.
45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus, it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.
46. However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.
47. The ultimate question has been described as being whether or not this is a case of "effective, real or committed support" (see AU at [40]) or whether there is "the real existence in practice of close personal ties" (see Singh 1 at [20]).”
31. It is trite that there is no predetermined model of what constitutes family life. Family life can exist between adult relatives. There is no presumption of family life; whether family life exists must be determined on the facts of any individual case and is a question of fact. Article 8 ECHR is not a general dispensing power. As can be seen the test is whether there is “effective or real or committed support”.
Human rights claims in the context of an application for entry clearance applications and visit visa applications.
32. S113(1) Nationality, Immigration and Asylum Act 2002 defines a human rights claim as being:
“a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom or to refuse him entry to the United Kingdom would be unlawful under s 6 of the Human Rights Act 1998”
(our emphasis).
33. It is well established that a human rights claim can be made in the context of an entry clearance application and can be implied or express. See Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC) headnote 2:
“An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent's guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced”.
34. Where an appellant resides outside the territorial jurisdiction of the ECHR, in order for Article 8 to be engaged, it must be established that family life exists between that appellant and the sponsor based in the UK. It is possible to apply for entry clearance to develop and intensify family life but not to apply for entry clearance based on private life with the aim of establishing family life (see SSHD v Abbas [2017] EWCA Civ 1393). A refusal of entry clearance may interfere with a sponsor’s right to respect for family or private life.
35. The Court of Appeal observed at [30] in ECO v Kopoi [2017] EWCA Civ 1511:
“In my view the shortness of the proposed visit in the present case is yet a further indication that the refusal of leave to enter did not involve any want of respect for anyone’s family life for the purposes of Article 8. A three-week visit would not involve a significant contribution to family life in the sense in which that term is used in Article 8. Of course it would often be nice for family members to meet up and visit in this way But a short visit of this kind will not establish a relationship between any of the individuals concerned of support going beyond normal emotional ties, even if there were a positive obligation under Article 8 ( which there is not ) to allow a person to enter the UK to try to develop family life which does not currently exist.”
36. We were also referred to Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 where the Court of Appeal said:
“35.…First as a matter of principle, the question whether there is family life for the purpose of Article 8 is a logically prior question and cannot depend on the purpose for which an application for entry clearance is made. Secondly, the shortness of the proposed visit is if anything an indication that the refusal of leave to enter did not involve any want of respect for the respondent’s family life for the purpose of Article 8.”
What is a refusal of a human rights claim?
37. Where a human rights claim has been made and the respondent makes a subsequent decision the respondent may accept the human rights claim, refuse the human rights claim (which will give rise to a right of appeal) or reject the claim as not constituting a human rights claim without deciding the substance of that claim.
38. The Upper Tribunal’s Presidential panel gave guidance in relation to the refusal of human rights claims in MY(refusal of human rights claim: Pakistan [2020] UKUT 89 (IAC) where it is said:
“…
(2) the fact that C has made a human rights claim does not mean that any reaction to it by the Secretary of State, which is not an acceptance of C’s claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim under s 82(1)(b) of the 2002 Act, generating a right of appeal to the First-tier Tribunal. The Secretary of State is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal.
(3) There is, accordingly, no justification for construing section 82(1)(b) otherwise than according to its ordinary meaning, which is that the Secretary of State decides to refuse a human rights claim if she:
(i) engages with the claim; and
(ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right”.
39. This guidance was endorsed in MY(Pakistan) v SSHD [2012] EWCA Civ 1500. At [42] the court observed:
“41. It does not, however, follow that every application for leave to remain necessarily involves a claim that removal would be a breach of the applicant's Convention rights. Whether it does so depends on the basis on which the application is made. An application based on the claim that in the absence of leave to remain there would be a disproportionate interference with the applicant's relationship with their partner or child inherently involves a claim that removal would interfere with their Convention rights. But an application based on the claim, for example, that the applicant satisfies the requirements for the grant of leave under the PBS does not do so: no doubt he or she may also claim that if leave to remain on that basis is refused their consequent liability to removal is a breach of their article 8 rights, but that is not necessarily inherent in the basis on which a PBS application is made (as to this example, see further paras. 58-60 below).
42. That analysis informs the question of whether it is possible for the Secretary of State, in a case where an applicant for leave to remain has made a human rights claim, to decide to refuse the application without also refusing the claim. Where the application necessarily involves a human rights claim, in the sense discussed above, a refusal of the one must necessarily entail a refusal of the other. But where that is not the case there is nothing illogical in the Secretary of State choosing to refuse the application but to defer a decision on the human rights claim. That choice may in principle be challengeable on public law grounds, but that is another matter.”
Discussion and Analysis
Ground 1
40. We turn to whether the Judge correctly decided that the refusal of the appellant’s application for entry clearance was not a refusal of a human rights claim but was rather a decision not to engage in the claim with the consequence that there was no jurisdiction to determine the appeal.
41. The Judge found at [23] that the appellant’s letter dated 17 May 2024 plainly contained a human rights claim within the meaning of s113(1) of the 2002 Act. The letter expressly stated that it would be an interference with the family life of both the appellant and the Sponsor for the entry clearance application to be refused. The claim was made both on the basis that mother and daughter had longstanding family life both because of the emotional and financial support provided by the Sponsor and on the basis of the Sponsor’s private life in the UK. It was said that the ongoing separation from her mother and worries about her mother’s welfare were contributing towards the deterioration in her mental health which represented a disproportionate interference with her private life.
42. Both representatives were in agreement that it was correct for the Judge to proceed on the basis that a human rights claim had been made. We accept that the appellant raised a human rights claim within the visit visa application. Indeed, this seems to have been accepted in the decision itself.
43. Mr Malik submitted that the making of a human rights claim, and the question of whether the matters raised in the application for the visit visa was capable of engaging Article 8 ECHR (and therefore whether rejection of the claim – to put it neutrally – was a refusal of that claim) are two different matters. He drew our attention to the published guidance entitled “Rights of appeal” which states that a visit visa is not generally capable of engaging Article 8 ECHR. We have no difficulty with that submission. He went on to submit that an application for a visit visa for private medical treatment or an application to visit an adult relative is not capable of engaging Article 8 ECHR.
44. Mr Malik submitted that the situation was analogous to the situation in Kopoi and Onuorah which are both authority for his submission that short visits where the visitor will leave at the end of the visit are not capable of engaging family life. He submitted that the authorities of EM (Lebanon) v SSHD [2008] UKHC 64, Singh v ECO [2004] 3 FCR72, and Mobeen do not assist the appellant because they do not relate to visit visas; they were all cases involving settlement. Territorial jurisdiction flows from the situation of the person whose rights are affected in the UK and the focus must be on the rights of that person. He referred us to Abbas in this respect.
45. Mr Chirico submitted that this application for an unwell mother living in difficult circumstances to visit her adult daughter in the UK is capable of engaging Article 8 ECHR. He distinguished the factual scenarios in Kopoi and Onuorah. The factual scenario in Kopoi was one where a niece wished to visit her family in the UK. The Court of Appeal ultimately found that family life did not exist because there was insufficient evidence of dependency. He also distinguished Onuorah on the basis that this involved a four week visit by an adult to his adult sibling. It was found that Article 8 ECHR was not engaged. We agree that these cases are very different to the factual scenario in the appeal before us.
46. The respondent’s policy is that visit visa applications are generally not capable of engaging Article 8 ECHR. Although we accept this as a general proposition, we are satisfied that the part of the policy which purports to limit human rights claims in visit visa applications to applications for visits between spouse or parents and their minor children is at odds with the principles in Mobeen set out above and also EM (Lebanon) v SSHD [2008] UKHC 64 at 37 where it is said  at [40]:
“Refusing to admit, or removing, migrants with no settled rights of residence involves the potential breach of a positive obligation to afford respect to private or family life by allowing a person to enter or remain in the host country. Technically, therefore, the question is whether the host country has such an obligation rather than whether it can justify interference….. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation” (para 106; note that the margin has consistently been said to be “certain” rather than “wide”).”
47. It is manifest from these authorities and implicit in the Home Office guidance itself that an application for a visit visa can in some circumstances engage Article 8 ECHR. The categories of family relationships capable of engaging family life in visit visa cases is not limited to relationships between spouses or parents and their minor children. They can include relationships between adult relatives. Whether the visit visa application is capable of engaging family life will be intensely fact sensitive. Much will depend on the quality and significance of the relationship between the visitor and the sponsor and the extent of any prior dependency or previous or present effective or real or committed support. A visit between distant relatives for the purpose of tourism for instance will be very different from a visit between close relatives who have been dependent on each other in the past or who have a current need for support for some compassionate reason. Of relevance, will be the following non exhaustive list of factors: the closeness and the quality of the relationship; the existence of prior or present support; the reason for the visit; the length of the visit. In principle, one might envisage even a short visit which might engage Article 8, for instance where the purpose was for an exceptionally compassionate reason such as being present at the death of a terminally ill close relative where there was ongoing dependency.
48. For these reasons we are satisfied that in certain fact sensitive circumstances a visit visa application is capable of engaging Article 8 ECHR, notwithstanding that the visit is between adult relatives and not between partners or parents and their minor children.
49. Mr Malik also rightly asserted that the real issue as regards jurisdiction is not whether the appellant had made a human rights claim, but whether there has been a refusal of a human rights claim. He referred us to the principles in MY in this respect.
50. We are satisfied that although the existence of a human rights claim is not determinative of whether the respondent has refused a human rights claim, the existence or otherwise of a human rights claim must be one factor to be taken into consideration when considering if there has been such a refusal. If the Tribunal fails to consider objectively whether a human rights claim has been made there is a risk that the Tribunal will attach excessive weight to the Secretary of State’s subjective understanding of the nature of the decision she has made rather than stepping back and asking whether, objectively the Secretary of State had a human rights claim before her and whether in that case and viewed objectively the Secretary of State’s decision was a decision to refuse it.
51. We agree that the real issue in this case is whether the respondent’s consideration amounted to a) a refusal of a human rights claim or b) a rejection of a human rights claim, in other words did the respondent give the claim any substantive consideration. The objective question which the Tribunal was required to determine was whether, the appellant having made a human rights claim based on her family life with her adult daughter, the respondent’s decision to refuse it on the basis that family life was not established (and therefore that Article 8 was not engaged) amounted to a decision to refuse a human rights claim.
52. There are various reasons why the respondent may not decide the substance of a human rights claim at all. This could be because an application is invalid for procedural reasons, the respondent has deferred consideration on the claim to another time (for instance for consideration on removal) or the respondent does not consider or notice that a human rights claim has been made.
53. Mr Chirico accepted that if the Secretary of State refuses to engage with a human rights claim there is no jurisdiction but submitted that in this appeal, the decision maker did substantively engage with the human rights claim. Mr Malik submitted that it was clear from the wording of the refusal that this was a refusal to engage with the human rights claim rather than being a substantive consideration and refusal of the human rights claim. As such, there was no right of appeal.
54. Mr Malik relied in this regard on MY. He submitted that the appellant was in an analogous position. The appellant in MY made an application under the domestic violence provisions of the immigration rules. He sought to argue that he was entitled to leave because his relationship with his partner had broken down permanently due to domestic violence. The respondent refused the application for domestic violence but did not engage with the human rights claim, firstly because she considered that a human rights claim should be submitted on a different form, which was a procedural matter, and secondly because the view of the Secretary of State was that consideration of the human rights claim should be deferred until the time that the applicant was being removed from the UK.
55. The wording of the refusal in MY was as follows:
"Any submissions you may have made relating to your Human Rights have not been considered, as an application for settlement as a victim of Domestic Violence is not considered to be a Human Rights based application. Therefore, if you wish to apply for leave to remain, based upon your human rights or other compassionate factors it is open to you to apply using an appropriate application form. Please see our website for further details.".
56. This was manifestly an unambiguous refusal by the respondent to engage with or consider the human rights claim at all, on the basis that there was another more appropriate procedure for making a human rights claim.
57. Mr Malik focused on the wording “not capable of” engaging in the decision under appeal which he said was clearly a decision by the respondent not to substantively consider the claim, because the relationship was not capable of engaging Article 8 ECHR.
58. However, this is not analogous to the decision in MY. It was not a refusal to engage with the claim but a refusal to accept that the application was capable of engaging Article 8 ECHR. In other words, the decision maker did not accept that Article 8(1) was met. The appellant was not told that it was open to her to make an application on another form or in another way. Instead, the decision maker considered whether the relationship between appellant and Sponsor amounted to family life and decided that it was not capable of doing so. This is in effect a decision that the first stage of the “Razgar” test was not met. That is as much a refusal of a human rights claim as if the decision maker had decided that there was family life and had then gone on to consider whether interference with it was proportionate. The decision is for that reason a refusal of a human rights claim.
59. We are satisfied that the decision to refuse the visit visa, viewed objectively was a decision to refuse a human rights claim, and that the Tribunal had jurisdiction to determine the appeal. The Judge therefore misdirected herself in law when finding otherwise.
60. This amounts to an error of law.
Materiality
61. Mr Malik submitted that, if we were not with him in relation to jurisdiction, the error was in any event not material because the Judge then went onto make lawful and sustainable findings in the alternative. That appears at [37] to [41] of the Judge’s decision. The Judge found, firstly that family life was not engaged in the particular circumstances of the application and secondly even if so engaged, that there was no interference because the appellant and Sponsor were living in separate countries and communicate by phone. They could therefore continue their family life on the same basis as presently.
62. Mr Chirico submitted that the Judge’s conclusion as to jurisdiction infected the entirety of the Article 8 assessment.
63. We have carefully considered the competing submissions on this issue. We have reached the conclusion that the Judge’s conclusion as to jurisdiction may have impacted on her consideration of the Article 8 claim, in particular whether family life exists between the appellant and Sponsor and the nature of the interference. We take into account in that regard the matters raised in the appellant’s second to fourth grounds. For that reason, the error we have found is capable of impacting on the outcome of this appeal. Also, for that reason, we consider it necessary to set aside the entirety of the decision with no findings preserved.
Disposal
64. Mr Chirico initially invited us to remit the appeal to the First-tier Tribunal to be heard de novo because the decision had been set aside in its entirety, the situation in Gaza will have moved on and further findings of fact will need to be made. He also noted that the appellant would lose one level of appeal were the appeal to remain in the Upper Tribunal and she were unsuccessful. However, he recognised that there is some need for expedition in this case given the circumstances in which the appellant is living in Gaza. There is little dispute on the facts. The appeal would be more speedily resolved in the Upper Tribunal.
65. Having regard to the Practice Direction and that there are limited factual findings to be made, and given the urgency of this appeal, we retain the appeal for re-making in this Tribunal. We have given directions below for the re-making hearing.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law.
2. The decision is set aside in its entirety with no findings preserved.
3. The appeal is adjourned to be listed at Field House on the first available date before UTJ Owens.
Directions
1. The appellant is directed to upload onto CE file and serve to the respondent any further evidence with the requisite Rule 15(2A) Notices no later than 14 days prior to the adjourned hearing.
2. Both parties are directed to upload skeleton arguments no later than 7 days prior to the hearing.


R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber


4 March 2025