Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004539 & UI-2024-004540

First-tier Tribunal No: HU/57053/2023 & HU/57055/2023
LH/02269/2024
LH/02270/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5TH June 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

KA & HR
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Solanki, counsel instructed by Immigration Rights Solicitors
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 21 May 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim touches on international protection issues in that the appellants’ human rights claim related to their circumstances of living in a war zone in Syria before the fall of the Assad regime. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellants’ case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of their identity.
2. The appellants appeal with permission against the decision, dated 6 June 2024, of First-tier Tribunal Judge Turner (‘the judge’) to dismiss the appeals on human rights grounds.
Background
3. The appellants brought their Article 8 human rights claims on the strength of their family life with KA’s parents who fled Syria in 2012 and now reside in the UK as recognised refugees. In broad summary, they relied on the closeness of their family ties, notwithstanding their physical separation and distance, and the desperate conditions in which they live in Syria, as amounting to a disproportionate breach of their Article 8 rights in the respondent’s refusal to grant entry clearance.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of the claim. The appeals were heard by the judge on 4 June 2024 before dismissing the appeals on human rights grounds in a decision promulgated on 6 June 2024. For the purposes of the present proceedings, the following key matters emerge from the decision:
• The judge summarised the broad factual circumstances underpinning the appeal and noted the “humanitarian situation in their home area”, KA’s mental health conditions and her ability to access necessary treatment, the couple’s unsuccessful attempts to have fertility treatment and the support they receive from family both in Syria and from the UK. [4]
• The principal controversial issues were identified as: 1) was Article 8 engaged; 2) were there exceptional circumstances to render the refusals a disproportionate breach of their Article 8 rights. It was acknowledged that the applications could not have succeeded under any of the recognised routes under the Immigration Rules. [9]
• The judge recorded that the sponsor, KA’s father, gave oral evidence and was cross-examined. However, KA’s mother did not give oral evidence despite being present at the hearing and ready to do so because the Home Office Presenting Officer indicated that he had no questions to ask of her. The judge indicated that she would therefore read the statement of KA’s mother. [12]
• The judge addressed the principal controversial issues in a staged and sequential manner. The critical and foundational question of whether Article 8 family life rights were engaged at all was addressed between [14] and [25]. It was noted, at [15], that the primary family life relationship at issue was that between an adult child and her parents. At [16], the judge addressed the cohesiveness of the shared family unit before KA’s parents fled Syria in 2012:
I noted that the Appellants married in 2011 and moved to another area of Qamishli Al-Hasakeh, away from the first Appellant’s parents. The Appellants explain that the violence escalated in 2012 to the extent that the Sponsor, his wife and the first Appellant’s other siblings fled Syria for the UK. As noted in the first skeleton argument, the Appellants remained in their home in Syria as their home area where they lived was less badly affected by the conflict. This indicates that the Appellants lived away from the Sponsor in 2011 and 2012 and had formed their own independent family unit from the Sponsor. I do not accept that the Appellants and the Sponsor formed a family unit and lived together prior to the Sponsor fleeing Syria. I do not accept that the family were separated on account of the Sponsor having to flea [sic] a worn torn country as they had already voluntarily separated. I do not find that the principles as set out in SSHD v SS (Congo) [2015] EWCA Civ 387 assist the Appellants in these circumstances.
• At [17], the judge rejected that suggestion that the appellants were entirely dependent on financial support from the sponsor. It was noted that the pattern of financial remittances was sporadic, and that HR occasionally worked.
• At [18]-[21], the judge said this about tension in the evidence about whether appellants had a more extensive family network in Syria than had previously been claimed, interspersed with findings about the degree to which emotional support existed between the separated family members:
Also of significance was the inconsistency in the Sponsor’s evidence in relation to family members remaining in Syria. The Sponsor stated at paragraphs 6 and 8 that the Appellants have no family members remaining in Syria other than the second Appellant’s elderly father. When asked in oral evidence, the Sponsor stated that the second Appellant also lived with his younger brother who was married with children. This was contrary to the witness statement which was specific that there was no one in Syria to offer the Appellants with support. The Sponsor wanted to make it clear that he had mentioned this when preparing his witness statements. Whether he did or not, the fact remains that there are other family members in Syria who can offer mutual support to the Appellants, whether by combining their resources for practical reasons or by offering social and/or emotional support. The evidence indicates a social support network is in place in Syria to assist the Appellants.
Ms Solanki submits that the Appellants are also emotionally dependent on the Sponsor and his wife. The Appellants rely on the evidence of remote contact. I have considered the chat and call logs presented from page 492. Unfortunately these logs are not translated and do not evidence who the communication is from or to. I can therefore base any assessment of communication only on what the Appellants and Sponsor claim in their written and oral evidence.
The Sponsor claims that he is in regular contact with his daughter and that she talks constantly of the poor conditions in Syria. He refers to the impact that the Appellants’ conditions are having on the Sponsor’s mental health and that of his wife as they are unable to help her. The first Appellant is said to repeatedly ask when she will be able to join her family in the UK. Whether I accept this aspect of the claim will to some extent depend on whether I accept the Appellants and Sponsor as credible.
As noted above, a relevant inconsistency was highlighted above in relation to whether the Appellants had any other form of support via family members in Syria. I am unclear as to how such a basic piece of information could have been incorrectly recorded in the Sponsor’s witness statement. The family members of note are direct family members of the second Appellant. They are no distant or extended family members which could have caused confusion. I find that the Sponsor omitted to mention these family members to suggest a lack of support available to the Appellants in Syria. I do find that this undermines the Sponsor’s credibility or reliability.
• At [22], the judge reached an adverse finding against the appellants in noting the extensive delay, of approximately 11 years, in making an application to join KA’s parents in the UK and what prompted the decision to make the application at the time it was ultimately made. The judge acknowledged that the sponsor had not been asked about this feature of the case during the hearing. This feature was taken, at its highest, to inform the conclusion that the relevant family members had lived independently of each other since 2012.
• The judge addressed KA’s fertility and mental health issues at [23].
• In drawing to a conclusion that Article 8 family life rights were not engaged, the judge provided the following overarching reasoning at [24]:
Returning to the claimed contact, I accept that the Appellants are likely to speak to the Sponsor and will discuss their conditions in Syria. However, I do not accept that such conversations go beyond that which would be expected between an adult child and their parents. Many adult children speak to their parents and discuss their lives however this does not provide evidence of dependency nor does it establish family life for the purpose of Article 8 ECHR. This case relates to a married adult woman and her husband. This is not an application for a single female or dependent minor to join her family. This is a claim from a married couple who have not only formed their own family unit over a decade ago but also have a family support network in Syria. I have considered the guidance as set out in Singh v SSHD [2015] EWCA Civ 630.
• Between [26]-[40] of her decision, the judge reached alternative findings on the proportionality of the decision if she was wrong about the engagement question. For reasons which will become clear, it is not necessary to summarise this part of the decision in as much detail as that which dealt with whether Article 8 was engaged.
• The judge accepted that conditions were difficult in Syria and access to medical treatment was limited. However, it was noted that it would be wrong and unprincipled to treat the claim as a form of protection claim. [27]-[28] & [42]
• The judge reached conclusions on the public interest factors set out at s.117B of the 2002 Act. [30]-[31]
• The ability of the relevant family members to maintain remote communications was weighed in the balance at [32]-[33].
• The evidence going to KA’s infertility treatment, mental health conditions and suicidal ideation was assessed between [34]-[37]. The mental health records were found to lack detail.
• The judge addressed the Home Office guidance, Family Policy: Family life (as a partner or parent), private life and exceptional circumstances, relied upon by the appellants. The judge found that this related to “a minor or dependent child as opposed to an adult child as in this case”.
• The judge said this at [40]:
I note the claim that the situation is affecting the Sponsor and his wife in terms of their emotional health and wellbeing. I accept that it must be difficult for them knowing that the Appellants are living in difficult conditions in Syria with limited access to medical facilities. However, the Sponsor and his wife can access support in the UK for any mental health issues that they have. The evidence indicates that they have done so and have been prescribed medication.
• The factors relied upon by the appellants were not found to exceptional circumstances or outweigh those in favour of the public interest. [43]
Appeal to the Upper Tribunal
5. The appellants applied for permission to appeal on the following grounds:
I. The FTT raised issues which were not raised by the respondent or put to anyone in the hearing resulting in procedural unfairness.
II. The FTT made material errors by failing to consider evidence and submissions and making mistakes of fact.
III. The FTT failed to consider Appendix FM GEN 3.2, the relevant aspects of Policy Guidance and the family’s circumstances and evidence adequately.
6. In a decision dated 8 October 2024, Upper Tribunal Judge Bruce granted permission for all grounds to be argued.
7. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
8. While various complaints were made against the decision in the grounds, two particular matters were said, without more, to vitiate the lawfulness of the important and foundational decision taken on the issue of whether family life was engaged. Firstly, it was argued that the judge had fundamentally misunderstood the evidence she heard from the sponsor during the hearing. The flaw in the reasoning was said to flow from [18], copied above, where the judge found that the sponsor had provided oral evidence which differed from that he had given in a written statement prepared earlier. He had previously stated that he was only aware of HR’s elderly father as being within their local family support network whereas, later, it emerged that HR’s younger brother and his family also lived in close proximity to the appellants. At [18], the judge noted that the sponsor said that “he had mentioned this when preparing his witness statements”. This was the platform on which the conclusion was reached that the substance of the account going to the family’s circumstances in Syria had changed. After pivoting to consider the extent of communications between Syria and the UK, the judge returned to the inconsistency and found, at [21], that “this undermines the Sponsor’s credibility or reliability”.
9. The appellants take issue with the judge’s assessment of this evidence because, simply put, it is challenged that the sponsor ever accepted in oral evidence that his account had changed. The implication of the judge’s finding is that the sponsor did mention the younger brother, but this did not find its way into the draft of his statement. Ms Solanki, who appeared for the appellants in the First-tier Tribunal, advanced her grounds of appeal on the basis that the judge did not accurately summarise the oral evidence which was given and that the sponsor had, instead, in answer to this line of questioning, simply said that his account had never changed. This was said to be in keeping with his broad account that what he had said in his earlier witness statement was accurate at the time it was prepared but circumstances had since changed in that the younger brother had returned to Syria in the intervening period. Ms Solanki recognised at the error of law hearing that there must be a firm evidential foundation to make good a case that a judge has laboured under a mistake of fact such as that claimed here. Merely providing counsel’s note of the hearing would rarely be sufficient in isolation. To that end, it was agreed that further steps should be taken after the hearing to determine whether there was an agreed position between the parties as to the evidence which was given before the First-tier Tribunal and, if not, it may be necessary to give directions to permit the recording of the hearing to be considered and put in evidence.
10. After the hearing, Ms Solanki provided the following note, which was agreed between the parties:
Following the hearing, Mr Diwnycz was able to obtain a note of the hearing from the presenting officer in the First-Tier Tribunal. This was sent to the Appellant’s counsel at 14.46 hours on 21 May 2025.
Mr Diwnycz confirms that he agrees that the presenting officer’s note is the same as Appellant’s counsel. He further agrees that this means the Judge misunderstood or made a mistake on the evidence heard in Court. He maintains his position on this is as he set out in the hearing. This is that this error, taken together with the other errors argued, amounts to a material error of law.
This note has been drafted by the Appellant’s counsel (at the request of the Respondent) on the basis it is the Appellant’s appeal. However, the contents are agreed by both parties. Both representatives names appear at the bottom as it is an agreed note. Mr Diwnycz is copied into the email sending this document to the Tribunal.
11. Mistake of fact as an error of law was considered in the leading authority of E & R v SSHD [2004] Q.B. 1044. At [66] of the judgment of Carnwath LJ (as he then was), held that the following considerations were of importance in assessing whether a mistake of fact reaches the threshold of an error of law: 
[…] First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning. 
12. The tribunal is not bound to adopt a concession made by the respondent, but it necessarily functions as an important factor in any analysis of whether a decision involves a material error of law. I am satisfied that Mr Diwnycz’ concession is well founded because it is clear that all of the criteria set out in E & R are made out.
13. The mistake went to the existing fact of what was actually said by the sponsor during his oral evidence. The agreement reached between the parties, based on their independent assessment of their respective records of what transpired during the hearing, establishes the mistake. I find that there is no need to take the additional step of considering a recording or official transcript of that recording in circumstances where the parties do not dispute that the judge has not accurately recorded what was said by the sponsor. There can be no suggestion that the appellants or their representatives are responsible for any mistake. I am satisfied that the mistake was material because this dimension of the sponsor’s evidence was demonstrably of importance in the judge’s assessment of the only live witness’ credibility and the subject of the questioned evidence went to the critical issue of the extent of any family support network in Syria which played an important role in the assessment of whether protected family life existed on the facts. The structure of the judge’s reasoning further signals that this matter was treated as being of overall importance. The inconsistency is the launchpad for an analysis of the nature of communications between the geographically distant family members and was then revisited. In this way, it can be seen to function as book ends to a central part of the analysis which informed the conclusion that family life was not engaged. I am also satisfied that the error was material to the overall decision because the findings which went to the existence of family life are very difficult to separate from the alternative analysis of proportionality. It would be hard to conclude that adverse credibility findings of this nature did not infect the weight attached to factors relied upon by the appellants in the balancing exercise because the sponsor provided much of the relevant evidence going to these matters. More broadly, it would require considerable intellectual dexterity to put out of one’s mind adverse findings that the claimed family life shared across international borders did not exist only to then fold such matter back into consideration for the purposes of an alternative proportionality balancing exercise. The strength and closeness of the claimed family, combined with the unjustifiably harsh consequences of maintaining the family’s geographic separation was, after all, a central factor relied upon by the appellants for the purposes of the balancing exercise.
14. The above analysis is sufficient to conclude that the decision involved a material error of law. However, it should also be noted that I found there to be force to the complaint that the judge left important evidence out of account. KA’s mother attended the hearing ready to give oral evidence, but she was not called because the presenting officer did not intend to question her. The judge indicated that she would read her witness statement. The witness statement was perhaps the central evidence which amplified the extent of the relationship of mutual emotional support between KA and her mother. This naturally fell to be considered in the assessment of whether the legal test for the existence of protected family life was established. While the judge indicated that she would read the statement, there is no direct engagement with this evidence. There is a broad reference to this evidence at [40] in the context of the proportionality balancing exercise, but little to indicate that it featured in the assessment of the engagement question.
15. In many respects, the judge carefully considered the evidence and the arguments presenting to her. However, the discrete errors described above amount to material errors of law which mean that I must set aside the decision. In view of the danger that findings which may have flowed from a mistake of fact tainted other conclusions, I am not minded to preserve any findings of fact.
Disposal
16. Upon setting aside the decision, and not preserving any findings of fact, a full fact-finding process is required. It will be necessary for the appellants to provide updated evidence including their circumstances following the fall of the Assad regime as, if family life is found to be engaged, the proportionality of the decision and the existence of unjustifiably harsh consequences will need to be assessed at the date of the hearing. These factors persuade me that it is appropriate to remit the matter to the First-tier Tribunal which is best placed to undertake such a broad fact-finding assessment and hear from the relevant witnesses.
Notice of Decision
The decision involved material errors of law and is set aside with no findings of fact preserved. The matter is to be remitted to the First-tier Tribunal to be decided by a judge other than Judge Turner.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025