Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004726

First-tier Tribunal No: HU/62182/2023
LH/03697/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22nd of April 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE RIPLEY

Between

JK
(ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr R. Dar, Solicitor Advocate (Trojan Solicitors)
For the Respondent: Mr K. Ojo, Senior Home Office Presenting Officer

Heard at Field House on 11 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her mother are 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 or her mother. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. Anonymity is granted in this appeal as the appellant’s mother is a victim of trafficking and she is entitled to anonymity. The appellant is also granted anonymity to avoid jigsaw identification.
2. This is the remaking of the appellant’s appeal against the respondent’s refusal of her application for entry clearance. The refusal was dated 6 October 2023. The appellant appealed and her appeal was allowed by a judge of the First-tier Tribunal by way of a decision dated 12 August 2024. The respondent appealed that decision, with permission, and by way of a decision dated 13 January 2025 (re-issued under the slip rule1 on 27 February 2025), we allowed the respondent’s appeal on the basis that the decision of the First-tier Tribunal contained an error of law. We retained the appeal for the purposes of remaking and it is that we heard on 11 March 2025.
3. We had the original 261 page error of law bundle (“HB”) but on the morning of the hearing, the appellant served a composite bundle including 110 pages of updating evidence not previously served (“HB2”) plus a skeleton argument. We allowed Mr Ojo time to read the new evidence and the skeleton argument. We heard evidence from the appellant’s mother (“the sponsor”). In light of the previous findings about the sponsor’s previous experiences and her mental health (see below) and the updating evidence about that, we spent some time at the outset of the hearing explaining to her the process and about taking breaks if required2. We asked whether any additional adjustments were required but were not advised of any. We heard submissions on behalf of both parties. At the end of the hearing we reserved our decision.
Summary of the appeal and our decision
4. The appeal is about whether or not the appellant, who is a 16 year old citizen of India, can join the sponsor in the UK in circumstances where it is accepted she cannot meet the requirements for entry clearance in the Immigration Rules as the sponsor is not British nor is she settled here. The appellant argues that refusing her entry clearance results in unjustifiably harsh consequences for both her and her sponsor, so the decision is a disproportionate breach of their right to respect for their Article 8 family life and unlawful pursuant to section 6 of the Human Rights Act 1998.
5. Our decision is that the appeal is to be allowed and we explain below the reasons for our decision.
Background
6. The appellant’s application was made on 18 September 2023 when she was living in India with her maternal grandparents. The basic premise of the application was that they were elderly and in poor health (in particular her grandmother), her father had abandoned her. In 2023 her mother was granted legal custody of her but she lives in the United Kingdom. Her grandparents could no longer look after her and the situation was having an adverse impact upon her mental health and her education.
7. The respondent considered the application under the provisions of paragraph 297 of the Immigration Rules but refused it under the Rules on the basis that there was insufficient evidence that the sponsor had sole responsibility for the appellant; or of the impact upon the appellant and because the sponsor did not earn enough to adequately maintain the sponsor. The respondent also decided that there was insufficient evidence to show exceptional circumstances to grant leave outside the Rules even taking into consideration the respondent’s duties under section 55 of the Borders, Citizenship and Immigration Act 2009.
8. When the First-tier Tribunal heard the appellant’s appeal, the appellant referred to a decision of another First-tier Tribunal judge, Judge Dineen, dated 21 June 2022 in which he allowed the sponsor’s Article 8 appeal (“the previous decision”). After the hearing, the decision was sent to the judge in the appellant’s case but not to the respondent. The judge relied on it in the appellant’s favour without reference to the respondent. We found that procedurally unfair and, therefore, an error of law and it is that which led us to set aside the decision allowing the appellant’s appeal.
9. At the conclusion of the error of law decision, we allowed the appellant’s application pursuant to Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which permitted the appellant to rely on the previous decision and the other material contained within that application, some of which had been sent to the judge hearing the appellant’s appeal.
10. We summarise the salient findings contained within the previous decision. Judge Dineen set out his findings of fact at [42]-[52] as follows:
“42. The appellant has clearly developed a substantial private life in the UK.
43. No challenge has been made to the history she has given of domestic abuse when in India, leading to a finding that she has been trafficked.
44. In any event, I am satisfied that she is a truthful witness because her evidence is consistent within itself and consistent with the general experience of women victims of domestic abuse attested to by Southall Black Sisters.
45. I am satisfied that the appellant would not leave her child in India unless very grave circumstances forced her to do so.
46. Because I am satisfied that she is a truthful witness, I am satisfied that the appellant has instructed a lawyer in India with regard to the care of her daughter, as confirmed by Southall Black sisters.
47. I am therefore also satisfied that the appellant’s parents have been subject to adverse attention by the appellant’s husband’s family.
48. I am satisfied that the appellant has, as she has stated, no family members living in India.
49. I am satisfied, notwithstanding the absence of a specific psychological report to that effect, that the appellant is suffering from anxiety and depression for which she is receiving counselling provided by NHS, and taking a common form of medication.
50. If she were to be removed to India, she would be a lone woman with a history of domestic abuse, and suffering from depression and anxiety, (albeit treatment is available for such conditions in India) having to make her own way with employment, housing and dealing with the issue of care of her child. She would either have to return to the area where she was abused, or relocate without any family support.
51. I am not satisfied that she would be economically supported by her friends in the UK if she were living in India. From the point of view of her friends, there is a significant difference between assisting somebody who is living close to you, and doing so for a person in a very different part of the world. I accept the evidence of the appellant’s witness that such support could not be expected to continue if the appellant were not in the UK.
52. In all the above circumstances, I find that the appellant would, if removed to India be in danger of being in poverty, and therefore at risk of re-trafficking.”
11. In addition to the above, it is worth noting that at the date of Judge Dineen’s decision, the maternal grandparents were in Dubai [27] . We do not set out the detail to the sponsor’s history. Suffice to say it is characterised by serious and protracted domestic abuse in India [18]-[23] and labour and sexual exploitation in the UK [25].
12. It is not in dispute that further to the previous decision, the sponsor was granted leave on Article 8 grounds from 22 August 2022 until 22 February 2025 and it has now been extended until 27 August 2027.
13. In this instance, the sponsor was claiming a right to remain in the UK due to her experiences in both India (which caused her to leave) and in the UK. These factors are relevant to the reason the appellant and sponsor have been separated since 2011 and why now their reunification is sought.
14. In his submissions, Mr Ojo accepted some weight attached to the previous decision. He made no further reference to the previous decision. Neither did he raise any challenge to the findings during his cross-examination of the sponsor or invite us to depart from any of the findings therein. At no stage either in the refusal letter or at the hearing before us has it been suggested the sponsor could return to India to care for the appellant.
Issues in the Appeal
15. We have set out in broad terms the issue for us to consider at [4] above. In addition to the issues raised in the refusal letter, Mr Ojo’s primary submissions were that the sponsor lacked credibility and that there were reasons not to accept as reliable much of the documentary evidence on which the appellant now relied. Some of the matters Mr Ojo raised were for the first time as they had not formed part of the refusal letter. Although it was accepted that the appellant was not claiming to meet the Rules, Mr Ojo submitted that the appellant is not able to show her sponsor is solely responsible for her and he questioned the credibility of the claim that that her father’s whereabouts are not known and that, since her application, her maternal grandfather had died.
16. Some of the other aspects of the Rules, namely the sponsor’s ability to adequately maintain and accommodate the appellant, were not challenged at the hearing (the factual position as to the sponsor’s employment had moved on since the date of application). Neither has the respondent ever expressly challenged the appellant’s claim that her paternal grandparents have died or that the sponsor has legal custody of her (by consent) as confirmed by the Family Court in Gurdaspur [HB139] on 22 May 2023. The sponsor was not asked about her remittances of money to the appellant and neither were any submissions made about that. It was never put to the sponsor that she could return to India to care for the appellant and neither was that suggested in Mr Ojo’s submissions.
Legal Framework
17. It is well-established that the principles set out in Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect)* [2002] UKIAT 702 apply with appropriate modification to an earlier decision involving a different appellant but founded on the same factual matrix (AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040) but there is scope for departing, even from factual findings about events occurring (HS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 771). So whilst the previous determination is the starting point, it need not be followed if there is ’very good reason’ not to follow it (AL (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 950).
18. It is for the appellant to satisfy us on the balance of probabilities of any facts on which she seeks to rely. The date we have to consider the evidence is the date of the hearing.
19. As the appeal is on Article 8 grounds, the 5-stage approach set out in Razgar v SSHD [2004] UKHL 27 is to be followed. It is for the appellant to establish that she has an Article 8 family life and that the respondent’s decision risks interfering with that family life such that Article 8 is potentially engaged. It is then for the respondent to show that the decision is necessary and proportionate to one of the legitimate aims. At this stage we are to consider the provisions of section 117B of the 2002 Act and we must treat the appellant’s best interests as a primary consideration.
Discussion
20. The previous decision is our starting point. Of particular relevance to the appellant’s appeal are the positive credibility findings made in the sponsor’s favour; the findings as to the reasons the sponsor left India and events in the UK, the fact she did so leaving the appellant only in the gravest circumstances, the steps she had taken (by then) by way of instructing lawyers to trace the appellant.
21. The sponsor’s credibility is a matter in issue. As we have proceeded through the evaluation of the sponsor’s evidence and the interrelationship with the documentary evidence, we treated as our starting point the previous positive credibility assessment. There are some factors on which Mr Ojo relied that we did not find persuasive, and others where we found there to be some merit. We also reminded ourselves in this part of our assessment that the sponsor has experienced significant trauma in her life and suffers with her mental health as a result. We have taken this into consideration when evaluating her answers to questions in cross-examination. On a number of occasions the sponsor said she was not able to recall precise dates due to her mental health. We do not find an inability to be absolutely precise about dates to be a factor which on its own damages credibility. Whilst we did not have specific medical evidence about any memory problems the sponsor had, it is recognised that some forms of disability cause or result in memory impairment (para. 10.3 of Joint Presidential Guidance Note No. 2 of 2010 ).
22. Some of the findings in the previous decision have since been borne out by the Indian Family Court documents which concern a case brought by the sponsor against ‘GS’ (the brother of the appellant’s father) who ‘agreed’ to the sponsor taking over legal custody of the appellant and relinquishing any claim to her [HB138] – [HB139].
23. Notwithstanding that the Family Court approved this agreement from the appellant’s paternal uncle (rather than the appellant’s father in person), Mr Ojo called into question whether or not the appellant’s father had in fact disappeared. He did so firstly, as he noted from the sponsor’s bank statement a payment to a Mr ‘DS’ (accepted as being the same name as the appellant’s father) on 19 May 2023 for £1,000 and secondly due to the lack of evidence as to what enquiries had been made to trace the appellant’s father.
24. Whilst we note the coincidence in dates between that payment and the date of the Family Court proceedings in India, Mr Ojo accepted this was not a point previously raised by the respondent and he raised it for the first time at the hearing. He did so without showing the sponsor the bank statement in question and he asked what it was. She explained it was a repayment of monies she borrowed from the husband of her friend who had helped her in the past who happens to share a name with her husband. We note this is consistent with the reference in the bank statement which reads “borrow money”. We also note [30] of the previous decision in which the judge noted the sponsor’s evidence that she is supported by friends in the UK who pay her rent and expenses. In our judgement, the sponsor would not have expected this question and, in light of the other factors mentioned, her answer is likely to be truthful. We do not find this to damage the sponsor’s credibility.
25. The appellant relies on the letter from her advocate in the Family Court proceedings dated 30 January 2024 in which he said that “all efforts to trace the father were unsuccessful” [HB142]. Mr Ojo criticised this for lack of detail. We accept there is no detail. However, in our judgement, the letter is to be read alongside the unchallenged Court documents which named the paternal uncle, not the father, as the respondent in the custody case. The respondent raises no challenge to these documents and on their face they are evidence that the Family Court in India was satisfied this was a proper basis for proceeding.
26. The position of both the appellant and the sponsor is that many years ago her father left her in the care of her paternal grandparents and she has not seen him since. The sponsor said it was a couple of years after she left for the UK [HB1] which was on 16 November 2011. The appellant does not give a date on which her father left, simply saying it was many years ago. In the refusal letter, the respondent noted that the appellant’s father applied with the appellant to enter the UK in 2013 and that she was said to be in her care at the time of the divorce on 1 October 2014. There is no other evidence placing the appellant’s father in India or that she was in his care since then.
27. At the hearing before us, Mr Ojo raised another matter not raised in the refusal letter, namely that the appellant stated in her application form that she lived at an address which is in fact her maternal grandparent’s address and which she then stated she had lived at for 9 years. He submitted this is inconsistent with her claim to have only moved in with her maternal grandparents in 2023.
28. There is no doubt this is an inconsistency. However, it is also inconsistent with the unchallenged Family Court documents (which accepted the appellant’s paternal uncle as the respondent) and the unchallenged findings in the previous decision that at that stage the sponsor was not aware of the appellant’s whereabouts and had instructed lawyers to trace her. Aside from the observation that if the appellant was living with her maternal grandparents throughout this period, it may support the appellant’s claim that her father was no longer available to care for her, Mr Ojo was really relying on this factor to undermine the appellant’s credibility (and by analogy also the sponsor’s), in particular on the issue of whether or not the sponsor was solely responsible for the appellant. The sponsor was not able to cast any light on this issue and of course the appellant was not present so could not be asked. Mr Dar invited us to find that this was simply a mistake by the lawyers preparing the application. For a combination of these reasons, we do not find the position to be sufficiently clear to justify relying on it, alone, to undermine the overall claim that the appellant's father’s whereabouts are unknown or to damage the sponsor’s credibility.
29. The other issue relating to the evidence provided by the appellant directly, is in relation to the death of her maternal grandfather. This issue was first brought to light when the appellant made her Rule 15(2A) application on 8th November 2024. It was referenced in the covering letter to the application [HB26] and it included the death certificate dated 7 October 2024. That application and its content were contained within the error of law bundle prepared by the respondent for the hearing on 16 December 2024 (the respondent being the ‘appellant’ for the purposes of the appeal to the Upper Tribunal). As we noted at the hearing, the certificate sets out a method to be used to verify its authenticity. There is no suggestion either party had taken advantage of that facility.
30. Of course when the application was originally made, it was premised on the basis that the grandfather was alive, yet the care they were jointly able to give the appellant not deemed reliable enough to continue and evidence as to the reasons was submitted in the form of the maternal grandfather’s affidavit [HB128].
31. We accept the issue of the purported death may have been uncontroversial until the morning of the remake hearing. The new bundle of evidence contains a statement from the appellant dated 5 March 2025 in which the appellant said at paragraph 7:
“My maternal grandparents are elderly and in poor health, and they already rely on others for their care. I don’t know how they’ll be able to look after me, and I realise I can’t depend on them for much longer.”
32. This is in clear contrast to the appellant’s position as now put and the sponsor’s evidence (para. 2 of her witness statement and in oral evidence) that her father had died. In oral evidence (and as mentioned in the covering letter to the Rule 15(2A)application) she also said she attended his funeral and Mr Ojo noted the lack of evidence about that in the appellant’s new bundle. When asked about this inconsistency the sponsor was only able to say that her daughter was talking about her grandmother. Of course, the appellant was not present at the hearing so she could not be asked.
33. There is no doubt that this is a significant inconsistency notwithstanding that when the appellant first made her application, her grandfather was alive yet she claimed that neither of her grandparents were able to continue to look after her. Even then, the medical evidence only related to the grandmother. The tenor of the grandfather’s affidavit which accompanied the application was that he cannot look after both the appellant and his wife who suffers with dementia.
34. But for the appellant’s witness statement, a challenge to the claim that the maternal grandfather had died was unlikely. We have considered the weight we can properly attach to that witness statement. We bear in mind the appellant is a child. We do not know the circumstances under which the witness statement was prepared. The evidence contained therein cannot be tested. For these reasons, there is a limit on the weight we can place on the appellant’s witness statement. It may also be said there is a limit to which the sponsor is able to comment on the situation. In our judgement the right approach, having noted the inconsistent evidence, is to consider it in the round with all the other factors when assessing the sponsor’s credibility and when we arrive at our conclusions on the evidence.
35. Another challenge Mr Ojo made of the sponsor’s credibility arose from her answers to some of the questions he asked in relation to her role in the appellant’s life and to the impact of their separation upon the appellant.
36. Mr Ojo explored with the sponsor examples of major decisions the sponsor made. She referenced firstly her decision that she does not want her daughter to live as she has had to with the difficulties she has experienced. When he asked about decisions concerning religion or education the sponsor said she was unable to think of such things until her daughter is with her. She accepted there was a degree to which she discussed her daughter’s situation with her own father (the maternal grandfather) and, when talking about the Family Court proceedings, that she was guided by him in decisions about the appellant. This suggests that shared care was in place at that time.
37. On the issue of the appellant’s education, there are two letters in the bundle from the appellant’s home tutor. The first is dated 7 August 2023 and says the appellant is a good student and she has been teaching her for 2 years [HB154]. The second is from a different tutor, dated 27 January 2024 and says that she has been tutoring the appellant since October 2023 as the appellant has not been able to go to school or concentrate on her studies for the past few months [HB152]. This letter post-dates the refusal letter in which the respondent noted the first tutor’s letter to be inconsistent with the appellant’s case as set out in her grandparent’s affidavit of 7 August 2023 to the effect that the appellant’s situation is affecting her studies. We also note a letter from the St Francis Convent School dated 24 July 2023 which confirms the appellant as a Year 9 pupil at the school [HB155].
38. The sponsor explained that the appellant was not able to attend school in part because she had no one to take her and in part because she was not able to cope with it. Mr Ojo enquired as to why there was no letter from the school as to the problems the appellant had to which the sponsor explained they would not provide one as the appellant was no longer a pupil.
39. We treat the evidence about the appellant’s education with some caution as there is a lack of detail as to precisely what has happened; at what stage the appellant left school (if at all) and the duration of time over which she was having educational difficulties (if at all).
40. Moving on the appellant’s mental health, there are two letters from Dr S. Singh at the Deep Hospital which in our view are contradictory. They are both dated 17 February 2025. The first explained that the appellant has been suffering with her mental health and receiving treatment but as her mother has been with her for the past 3 weeks, she is doing better [HB2-81]. There is reference to a conversation taking place “yesterday” and the date given for that is 24 February 2025 which is at odds with the date of the letter itself. There is also some inconsistency in the evidence of length of the sponsor’s stay which she said was in fact 2 weeks not 3 as the doctor recorded.
41. The second says that the appellant was admitted to the hospital from 13-16th February 2025 and the sponsor said this was because she was having panic attacks [HB2-82]. We find this odd given there is no reported history of panic attacks or hospital admissions save this one which occurred during the currency of the sponsor’s visit during which time the evidence was that she was doing better. On the other hand, we note the content of the first letter which said the appellant became agitated about her mother’s return to the UK and that the hospital admission is supported by an invoice and a receipt for payment [HB2-83]-[HB2-84]. We find it puzzling that the doctor did not write one comprehensive letter or explain more overtly why, if the appellant was doing better with her mother’s presence, she nevertheless was admitted.
42. The issue Mr Ojo raised with the sponsor was in relation to the previous consultations to which the Doctor referred. The sponsor was unable to recall these. Mr Ojo submitted this cannot necessarily be explained by the sponsor’s mental health given she claims to make all the major decisions in the appellant’s life.
43. Taking these issues together, we find that the documents now submitted purportedly in support of the appellant’s case do not do that as much as they pose questions about whether what we are being told is likely to be true. There are a number of inconsistencies as outlined.
44. We turn next to the situation of the appellant’s maternal grandmother. We do not place any real weight on Mr Ojo’s submission that the sponsor’s Talking Therapy letter mentions that the sponsor is concerned her mother “may not be able to care for and protect her” [HB2-74]. That cannot properly be said to be reliable evidence on the issue of the maternal grandmother’s health and it was certainly not prepared for that purpose. Secondly we do not place significant weight on the turn of phrase in the summary section of the two letters written about the appellant’s grandmother which said as a result of her brain injury she ‘might’ have problems with her memory. The reality is there are two letters about the grandmother which are very similar, but not identical, both of which say the grandmother has ‘brain issues’ and the second of which says she has been treated for dementia since 2017. The photos of the appellant’s grandmother reveal a particularly frail old lady. The appellant mentioned in her letter dated 1 February 2024 that her grandparents require help from outside [HB157]. When the sponsor was asked about this, she confirmed they received help from the local community when they need things from outside.
45. There is no challenge to the claim now that the sponsor is able to adequately maintain and accommodate the appellant. The evidence reveals that she earns £2,116.80 per month which equates to £529.20 per week from which her housing costs are £161.55 leaving a surplus of £367.65 per week which is significantly in excess of the income support level of £162.58.
Conclusions on credibility and the evidence
46. The starting point is that the sponsor has previously been found credible. There are parts of her account to us which are supported by evidence. There are other parts where the documents depart from her account or where there are significant inconsistencies and anomalies within the supporting documentation and that calls into question the truth of what she has said. We remind ourselves that even if someone has lied in part of their evidence, it does not mean everything they say is untrue. We also remind ourselves of what we said about the sponsor’s past trauma and mental health and the possible impact that may have had upon her evidence.
47. Drawing those factors together, in our judgement, the picture about the sponsor’s credibility is not so clear cut that we are justified in simply rejecting everything she has said to us. There is a degree to which she is not a particularly reliable witness, and we accept there may be reasons for that. However, there are aspects of the appellant’s case and the sponsor’s evidence about which we are satisfied are more than likely to be true because they are not infected by doubt or have not been successfully challenged. They are:
i) the preserved findings, from which we were not invited to depart, about the sponsor’s experiences in India and then in the UK, the reasons she left India without the appellant and that there are very significant obstacles to her returning. We are not satisfied there is ‘very good reason’ to depart from them;
ii) taking into account [24]-[28] above, the appellant’s father’s whereabouts are unknown, he plays no part in her life and has not done since he left her in the care of her paternal grandparents. We were not invited to, and do not find there to be, a basis to depart from the inevitable inference from the previous findings that as on the date that appeal was heard, the appellant was not in the care of her maternal family and we are satisfied she lived with her paternal grandparents until their respective deaths;
iii) taking into account the totality of the evidence set out at [44] above, the maternal grandmother is elderly, frail, suffers with dementia and not in a position to be responsible for the appellant. At the date of application she was being cared for by her husband who was then elderly and he was finding it hard to take responsibility for both her and the appellant;
iv) based on the unchallenged financial remittance documents, the sponsor financially supports the appellant;
v) based on the unchallenged evidence about the sponsor’s circumstances in the UK, she is able to adequately accommodate and maintain the appellant.
48. The impact the situation has had on the appellant is not as clear. We are prepared to accept that given the above findings, the appellant’s background has been characterised by abandonment and instability of care and it is entirely plausible this could give rise to some mental health issues. We also find it plausible that faced with the appellant’s return to the UK earlier in the year, this may have triggered enhanced anxiety (see [41] above). On balance, we are just about persuaded that it is more likely than not that the appellant has some mental health symptoms arising from her background, the separation from her mother and the instability of her situation such that she has received some medical treatment.
49. Turning to the appellant’s education, even if she is no longer at school, we are not persuaded that the impact of her situation is the primary reason for that. The sponsor’s evidence was that she had no means to get to school and given the evidence about the grandparents, this is entirely plausible and likely to be the main reason she cannot go to school and has to have a tutor. That does not mean to say that she has had no problems with her education, but certainly the letter provided by the first tutor (who of course does not say the appellant is not at school) speaks to her doing well.
50. That just leaves the issue of whether or not the appellant can satisfy us it is more likely than not that her maternal grandfather has passed away. In some respects, it is immaterial as on our findings at [47(iii)] above, he was struggling to care for the appellant in any event. However, given what we have said at [34] above, and as there is a death certificate which corroborates his passing and the chronology of how this matter came before the Tribunal, we are persuaded that it is more likely than not the maternal grandfather has died.
The Best Interests of the Appellant
51. Whilst the appellant is not in the UK, she is a child and therefore it is incumbent upon the Tribunal to consider the best interests of a child as a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 [23] , [25]).
52. We take into consideration that it is generally in the best interests of a child to be in the care of their parents.
53. In this case, of course, we have found the appellant has not lived with her mother for a great many years and has, throughout that time, been cared for by others in India where she has lived throughout her life. However, her childhood has been characterised by instability as demonstrated by our above findings. In these circumstances, we are satisfied that the appellant’s best interests are served in the care of her mother. Her current residence is not one characterised by any degree of longevity and her present carer is not able to meet her needs. It is only with her mother that the appellant’s needs can be prioritised and she can truly benefit from the emotional support and comfort her mother provides.
Conclusions in the appeal
54. The appellant is not able to meet the requirements of the Rules. The appeal is brought on human rights grounds pursuant to section 82 and 84 of the Nationality, Immigration and Asylum Act 2002. Returning to the structure set out at [19] above, the relationship between the appellant (a minor) and her biological mother who financially supports her and with whom there is evidence of regular contact and emotional support is sufficient to establish an Article 8 family life between them notwithstanding the distance.
55. If the respondent’s decision is maintained then the appellant and sponsor will continue to be separated which has consequences of such gravity that Article 8 is potentially engaged. The decision is otherwise lawful.
56. As to whether it is necessary, the decision was taken in pursuit of the legitimate aim of the economic well-being of the country through effective immigration control. The appellant is unable to meet the Immigration Rules. As to whether or not the decision is proportionate to that aim, we adopt the balance sheet approach.
57. On the respondent’s side of the balance sheet we attach weight to the following factors:
a) effective immigration control is in the public interest (section 117B(1) of the 2002 Act);
b) the appellant is unable to meet the requirements of the Rules which is a matter of considerable weight. This factor incorporates the fact that the sponsor only has limited leave which is one of the reasons the appellant cannot meet the requirements of the Rules;
c) although the appellant will be supported by her mother which is a neutral factor applying section 117B(3),she will need to be educated here which is a financial burden for the state
d) there is no evidence before us of the appellant’s ability or otherwise to speak English. We note her letter is written in English but we cannot draw any inference from that. She is of course a child and in other parts of the Rules that exempts her from requirements to prove this ability. Not so here. Section 117B (2) applies in the respondent’s favour.
58. On the appellant’s side of the balance sheet we attach weight to the following factors:
a) that it is in the appellant’s best interests to be in her mother’s care (and the reasons for that – the fact her father’s whereabouts are unknown; that her childhood has thus far been characterised by instability and that her current carer is no longer able to care for her). Cumulatively, this is a factor which attracts significant weight;
b) the circumstances which led the sponsor to leave the appellant in India in the first instance and which then prevented her from reuniting with her till 2023;
c) there are very significant obstacles to the sponsor’s reintegration into India. It is not argued that the sponsor can return to India to care for the appellant. This is a factor attracting significant weight;
d) the efforts the sponsor has gone to in order to acquire legal custody of her daughter;
e) the impact that the appellant’s situation is having on her mental health;
f) the impact upon the sponsor of continued separation.
59. When considering how the balance is to be struck, we have considered the impact of the respondent’s decision on the appellant and the sponsor individually and cumulatively. The best interests of the child are a primary consideration.
60. We find the factors on the appellant’s side of the balance sheet to outweigh those on the respondent’s by some margin. We are satisfied these are truly compassionate and compelling circumstances which means the respondent’s decision results in unjustifiably harsh consequences for both the appellant and sponsor.
61. It follows that we do not find the respondent’s decision to be a proportionate interference with the appellant and her mother’s right to respect for their family life so it is unlawful applying section 6 of the Human Rights Act 1998.
Notice of Decision
The appeal is allowed on human rights grounds

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 April 2025