Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004846

First-tier Tribunal No: HU/59103/2023
LH/04944/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

Between

RS
(ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr. M. Osmani (Times PBS Solicitors)
For the Respondent: Ms. A. Nolan (Senior Home Office Presenting Officer)

Heard at Field House on 6 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, the sponsor and their children 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, the sponsor and their children. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of First-tier tribunal Judge Abebrese (“the judge”) promulgated on 13 August 2024, dismissing the appellant’s appeal against the respondent’s decision to refuse her application for entry clearance under the Family Reunion Provisions. This remaking follows the setting aside of the judge’s decision by Upper Tribunal Judge Loughran, for a material error of law, in a decision and reasons issued on 23 January 2025. At the error of law hearing, the respondent did not dispute that the judge had made a material error of law, because the judge had failed to take into account the best interests of the appellant’s children, when conducting an assessment of proportionality in relation to Article 8 ECHR. Following submissions from the parties at the error of law hearing, Upper Tribunal Judge Loughran directed that no findings of fact would be preserved and that the appeal would be reheard by the Upper Tribunal. The error of law decision is also attached in the annex to this decision.

Background

2. The appellant is an Afghan national born on 6 August 1975. The appellant is the wife of the sponsor, who is a British citizen born on 23 July 1966. They met in Pakistan in 2008 and married, also in Pakistan, on 27 July 2015. They have three children together, two daughters aged 12 and 15 and a son, aged 13. The children are all British citizens.

3. The appellant is currently living in a rented room in Peshwar, Pakistan, with their youngest daughter. The eldest two children travelled to the United Kingdom on 15 February 2023, and they live with their father in London. Before that they had lived with their mother and their youngest sibling in Pakistan. Before residing in Pakistan, the appellant and all three children lived together in Kabul, Afghanistan. It was in about September 2021, after the Taliban came to power in August 2021, that the appellant and the children fled from Afghanistan to Pakistan. It is a feature of the case, that the appellant, sponsor and the three children have not permanently resided together in the same country. Rather, before the two eldest children moved to the United Kingdom, the sponsor would travel to Pakistan to spend time with the appellant and their children, with his permanent home being London, where he lives and works to provide for the family.

4. The appellant does not have any legal status in Pakistan and does not wish to return to Afghanistan because of the Taliban. The appellant therefore applied for entry clearance to the United Kingdom, under the Family Reunion Provisions, on 21 February 2023. That application was refused by the respondent on 4 December 2023. The respondent refused the application because the appellant did not meet the requirements of the Immigration Rules for Family Reunion, as the sponsor is a naturalised British citizen, as of 18 December 2007. The respondent also determined that the refusal to reunite the appellant and the sponsor would not constitute a disproportionate breach of the appellant and sponsor’s rights to a family life under Article 8 ECHR because there were no exceptional circumstances, or compassionate factors, which would justify a grant of leave outside the Immigration Rules.

5. The appellant appeals against the respondent’s decision based on her rights, the sponsors rights as well as the children’s rights to a family life under Article 8 ECHR.

Hearing

6. The appellant was accompanied at court with his two eldest children. His daughter, 15 and son, 13. At the beginning of the hearing, Judge Loughran indicated that the only updating evidence that had been received – on the morning of the hearing - was a one-page medical document, and asked the appellant’s legal representative whether there was any updating evidence in relation to the children, given that the witness statements before the First-tier Tribunal had not referred to any evidence about the children since the eldest two children had come to live with their father in the United Kingdom.

7. Mr. Osmani, for the appellant, explained that the children had indicated that they would like to give evidence. Upper Tribunal Judge Loughran explained that notification ought to have been provided prior to the morning of the hearing that the children wanted to give evidence, because a child friendly court could have been set up to assist the children in providing evidence to the tribunal. Regarding documentary evidence, Mr. Osmani explained that the one-page medical document, was a prescription for anti-depressant medical for the appellant, and that there was also a Supplementary Bundle, containing some boarding passes, money transfer receipts and screen shots of WhatsApp communications and videocalls. In view of Mr. Osmani’s representations, the case had to be put back, so that we could read the documents in the Supplementary Bundle, and to allow Mr. Osmani time to consider how updating evidence in relation to the children’s circumstances would be provided.

8. We note that service of the Supplementary Bundle and the one-page medical document did not comply with the direction made by Upper Tribunal Judge Loughran in the error of law decision, that any evidence not before the First-tier Tribunal should be provided at least 14 days before the remaking hearing by the Upper Tribunal, with an explanation about why it had not been before the First-tier Tribunal. However, Ms. Nolan, for the respondent said that she had received the Supplementary Bundle from the appellant, and did not object to its admission, and nor did she object to the admission of the one-page medical document but indicated that instead she would make submissions about the weight that could be attached to that document. We considered that it was important that the Tribunal receive up to date evidence, given that Article 8 ECHR is to be assessed at the date of the hearing and noting that the respondent did not object to its admission, we found it was in the interests of justice.

9. Having considered the contents of the Supplementary Bundle, we remained concerned about the absence of updating evidence in relation to the children and we considered adjourning the hearing, so that updating witness statements could be provided. However, Mr. Osmani, explained that the children no longer wanted to give evidence, but rather their father would be able to provide the relevant updating evidence orally in court. Ms. Nolan did not object to the sponsor providing this evidence and we decided that in all the circumstances, it would be in the interests of justice to proceed. We therefore heard evidence from the sponsor, who was assisted by a Dari interpreter. The sponsor was asked questions in evidence-in-chief, in cross-examination and there were also questions from us, including about the updating evidence in relation to the children. At the end of the hearing, the children were also given the opportunity to say to their father, anything additional that they would like us to know. They took that opportunity, and he relayed what they had said to him, to us.

10. The children were in the courtroom for the duration of the hearing. We took one short break, when the appellant and sponsors’ son became upset. We observed that the sponsor also became visibly upset during the hearing. We note that it was difficult for the children to sit through the hearing, and we were impressed with the maturity that they demonstrated.

Issues

11. At the start of the hearing, we discussed and agreed the issues with the representatives, as set out below:

a. Is there a family life?
b. Is there an interference with family life?
c. Does any interference have consequences of such gravity as to potentially engage Article 8 ECHR?
d. If so, are there ‘exceptional circumstances’ such that the respondent’s decision would result in ‘unjustifiably harsh consequences’, meaning that the respondent’s decision is not proportionate?
e. In assessing ‘d’, the best interests of the children should also be considered as a primary consideration.

Evidence and submissions

12. We heard evidence from the sponsor. The sponsor and the interpreter were both present in the hearing room. After hearing evidence from the sponsor, we heard submissions from the advocates. We refer to the evidence and submissions as necessary when making our findings of fact.

Findings and reasons

Legal framework

13. This is a case where the appellant cannot satisfy the Family Reunion Provisions, or Appendix FM of the Immigration Rules. The Supreme Court judgment in Agyarko v Secretary of State for the Home Department [2017] UKSC 11, [2017] 1 WLR 823, paragraphs 45-48, applies where an appellant cannot succeed within the Rules. The question is whether there are ‘exceptional circumstances’, meaning that the refusal of the application would result in unjustifiably harsh consequences for the appellant, or another person affected by the decision, such that refusal would not be proportionate.

14. In assessing Article 8 it is important to consider the unitary nature of family life, in which interference with the family life of one, is an interference with the rights of all members of the family whose rights are engaged. As Lady Hale explained in Bekou-Betts v Secretary of State for the Home Department [2009] AC 115, at paragraph 4:

“…the central point about family life…is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for family life of others, normally a spouse or minor children, with whom the family life is enjoyed.”

Is there a family life?

15. On the basis of the oral evidence from the sponsor, as well as the witness statements and the documents contained in the bundle before the First-tier Tribunal and the Supplementary Bundle, we find that there is a genuine and subsisting family life between the appellant and the sponsor and their three children. We base that conclusion on the findings of fact set out in the paragraph below (16).

16. The sponsor came to the United Kingdom as a refugee in 2000, having fled from the Taliban. He became a British citizen in 2007. It was not until 2008 that he met the appellant in Pakistan, and they began their relationship. As explained by the sponsor in his evidence, at that time it was not difficult to travel between Afghanistan and Pakistan, and he was able to obtain VISAs to visit Pakistan. The appellant became engaged to the sponsor in 2011, and in 2015 they married in Peshawar. They have three children who were born in 2009, 2011 and 2012. Their British passports are contained in the bundle and show that they were each born in Kabul. We accept the sponsors evidence that he lives and works in London, and that over the years he has travelled to Pakistan on a numer of occasions, spending a month at a time with the family, before returning home to the United Kingdom. Over the years he has sent money to the appellant to provide financially for the family. Whilst in London the sponsor has been able to communicate with the appellant and the children by messaging and by videocalls. This summarises and reflects the way that family life has been organised and enjoyed this family, up until the two eldest children left the appellant and their youngest sibling in Pakistan and joined their father in the United Kingdom in 2023. We find that family life has been enjoyed by the appellate and sponsor since their marriage in 2015, but that it also stretches back before that, to reflect that following the birth of their children, the sponsor has visited the appellant and their children and has spent time with them all together in Pakistan.

17. Ms. Nolan, relying on the respondent’s refusal letter, invited us to find that there was no extant family life, primarily because this was a family unit that had never co-habited together and the relationship between the appellant and the sponsor had always been long-distance, which she suggested indicated that there did not exist the close personal ties indicative of genuine and subsisting family life. Ms. Nolan also submitted that only limited evidence had been provided by way of flight tickets, money transfers and evidence of messaging, calls and videocalls between the sponsor and the appellant. However, we are unable to agree with Ms. Nolan’s submissions for the reasons we set out below.

18. First, the sponsor and appellant’s evidence about their family life is supported by documentary evidence in the bundle and the Supplementary Bundle. There are multiple photographs in the bundle, showing the family all together on different occasions in Pakistan. The sponsor’s account is supported by evidence of some flight tickets. There are several examples of money transfers sent from the sponsor to the appellant. There is also some evidence of screenshots showing video calls and messages between the sponsor and the appellant. We agree with Ms. Nolan that the appellant might have provided more evidence of flight tickets, money transfers and screenshots showing video calls and messages. However, we observed the sponsor give evidence and we considered him to be genuine in the evidence he gave before us. The sponsors oral evidence was mostly consistent with the evidence in the witness statements. In our view, the sponsors oral evidence was supported by sufficient documentary evidence to leave us in no doubt that there are close ties between the appellant, the sponsor and the children, and that there has been a genuine and subsisting family life for a substantial period.

19. Secondly, we do not agree that the fact that the family has never permanently co-habited together in the same household means that there is no family life, for the following reasons. First, we are mindful that family life can take different guises and does not have to conform with the idea of the nuclear family. Secondly, the sponsor and the appellant are a married couple, and it is not disputed that theirs is a lawful and genuine marriage. An argument that an unmarried couple who have never co-habited and have only ever had a long-distance relationship would carry greater weight, but that is not the situation in this appeal. Thirdly, and potentially most significantly, the appellant and the sponsor have three children together. We consider this to be reflective of their commitment to each other as a couple. Further, we note that family life is capable of embracing the tie between a parent and a minor child, even where there is no-cohabitation (Berrehab v Netherlands (1998) 11 EHRR 322, paragraph 21) and that from the moment of a child’s birth there exists between the child and their parent a bond between the child and their parents amounting to family life, which subsequent events cannot break except in exceptional circumstances (Sen v Netherlands (Application no. 31465/96, 21 December 2001, paragraph 28 and Ahmut v The Netherlands (1997) 24 EHRR 62, paragraph 60). Thus, even though the sponsor has not cohabited with the whole family and that his relationship with the appellant has been long-distance, this does not fatally undermine our conclusion that family life exists between the appellant, the sponsor and the children.

Is there an interference with family life?

20. Ms. Nolan, for the respondent, did not dispute that, if we did find that there was family life, then the respondent’s refusal would constitute an interference with family life. We find that the respondent’s refusal of entry clearance interferes with family life.

Does any interference have consequences of such gravity as to potentially engage Article 8 ECHR?

21. In view of our conclusions about family life above, we also find that the interference with family life is of such gravity to engage Article 8 ECHR.

If so, are there ‘exceptional circumstances’ such that the respondent’s decision would result in ‘unjustifiably harsh consequences’, such that the respondent’s decision is not proportionate?

22. We begin our assessment of proportionality by considering the best interests of the children. The best interests of the child ‘broadly means the well-being of the child’ and ‘specifically whether it is reasonable to expect the child to live in another country’. We note that the best interests of the children are ‘a primary consideration’ not ‘the primary consideration’ and what is in the best interests of the children will not necessarily determine the outcome of the appeal (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 All ER 783, [2001] 2 WLR 148, per Baroness Hale, paragraphs 29-33).

23. As a starting point, in normal circumstances it is in the best interest of a child to be with both of their parents. We find that in this case, it is in the best interest of the children to be with both of their parents for the reasons set out below.

24. Until the two eldest children came to the United Kingdom on 15 February 2023 (a date which was not refuted by Ms. Nolan on behalf of the respondent) their mother, the appellant, had been their primar carer. Thus, she was the primary carer for their eldest daughter, until she was 13 (she is now 15), and for their son, until he was 11 (he is now 13) and remains the primary carer of their youngest daughter, aged 12. The sponsor gave evidence, and at the end of the hearing the children asked their father to convey to us how much they missed their mother. The eldest daughter expressed that without their mother their life was “bitter”, that she felt “empty” without her and that her absence caused her stress and anxiety. The son gave the example of going to the park and not having his mother there when other children did, as making him feel “alone” and “really down and sad”. We have no hesitation in finding that it is the best interests of all three children to live with their mother, who has been their primary carer for all, or most of, their lives. Ms. Nolan, for the respondent submitted that there was no medical evidence, nor any evidence from the school to suggest that the absence of the children’s mother was negatively impacted upon them. However, in our view, such evidence is not required, and it suffices that we have heard from the children and their father that not having their mother in their lives is having a negative impact on them including on their studies. Given that their mother has been their primary carer for most of their lives, it is inevitable that they will feel her absence, and that it will negatively impact them in their daily life in the United Kingdom.

25. The two eldest children they have lived with their father in London since 15 February 2023. It was clear to us at the hearing and from the evidence provided on behalf of the appellant, that the children also have a close bond with their father. They are settled at school and in their lives here in the United Kingdom, save that they miss their mother and youngest sibling. We find that it is also in their best interests to continue to reside in the United Kingdom with their father, the sponsor.

26. The alternative to the children living in the United Kingdom is that they live with the appellant in either Pakistan, or Afghanistan and that the sponsor visits them. It was Ms. Nolan’s position at the hearing that the respondent’s decision did not breach Article 8 because it merely reflected the family’s ‘status quo’. We reject that submission. First, it does not reflect the ‘status quo’ because the situation of the family has changed because the two eldest children now reside in the United Kingdom. Secondly, the situation in both Afghanistan and Pakistan has changed, making it impossible for the family to enjoy family life in the way they did for many years.

27. In our view, it would be unjustifiably harsh to expect the children to return to Pakistan, or Afghanistan to enjoy family life with their mother and youngest sibling. Whilst the appellant and her daughter are currently residing in Pakistan and have been there since about September 2021, they do not have legal status in Pakistan. As such, their lives there are precarious. They are liable to deportation. We have been directed to country evidence, which indicates that Pakistan is currently deporting Afghans back to Afghanistan. Namely, a House of Commons Research Briefing, dated 8 December 2023, (Number 09905) by John Curtis, titled, ‘Expulsion of Afghans from Pakistan and Iran’, which explains that “on 3 October 2023, Pakistan’s caretaker government ordered all illegal immigrants to leave the country by 1 November or face deportation” and noting that Pakistan has been detaining large numbers of undocumented Afghans and transporting them direct to the border, as well as reported concerns over the treatment of Afghans by the Pakistani authorities (Summary, at pages 1-2). Additionally, the sponsor explained in his evidence that his youngest daughter cannot attend school in Pakistan because of her lack of legal status. In these circumstances, it is not in the best interests of the children to reside in Pakistan with their mother.

28. Alternatively, the children could live with their mother in Afghanistan. However, their lives would also be precarious under Taliban rule in Afghanistan. We accept the evidence that the two girls would not be able to attend school and the family’s freedom of movement would be significantly curtailed, owing to the Taliban’s requirements that females are chaperoned when outside the household. The appellant and her daughter’s ability to function beyond the household - and of course they do not currently have a household in Afghanistan - would be significantly restricted and enormously challenging in the context of a single parent family living under Taliban rule. Our conclusion is supported by the country evidence provided by the appellant, which includes reports from the UN Human Rights Council, Human Rights Watch and Amnesty Internation about the suppression of women’s rights in Afghanistan by the Taliban.

29. By way of example, the UN Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights Afghanistan and the Working Group on discrimination against women and girls’, dated 20 June 2023 details that women and girls have been subjected to widespread and systematic discrimination, since the fall of the Islamic Republic on 15 August 2021, which is referred to in the report as ‘gender persecution’ (paragraph 92) and gender apartheid (paragraph 95). The report explains that the Taliban are “denying girls and women the right to education beyond primary level” (paragraph 33). The report details the various edicts issued by the Taliban which restrict women’s “freedom of movement, attire and behaviour and their access to education, work, health and justice” (paragraphs 17 – 23). The report explains that the Taliban have “created an environment in which it is difficult for women and girls to leave their homes” (paragraph 51) and at paragraph 54 described that:

“The de facto authorities have increasingly scrutinized and questioned women moving in the public space or travelling alone, preventing them from leaving their home unless accompanied by a maharam. Men travelling with women are required to prove that they are related to the women by showing the couple’s marriage certificate, or an identification card if the man and woman are otherwise related […] The experts received reports of women threatened with imprisonment if they left home without a maharam. The maharam requirement is enforced at checkpoints; harassment is commonly reported, while women without maharam are refused passage regardless of how urgent their travel is of whether they are travelling with other women […] Many women do not have a maharam who can accompany them, a fact that the de facto authorities do not apparently accept”.

30. A further significant feature of this case is that all three children are British citizens. As noted by Baroness Hale in ZH (Tanzania) “[a[]lthough nationality is not a “trump card” “it is of particular importance in assessing the best interests of any child”. As British citizens the children have an unqualified right of abode here and have rights that they would not be able to exercise in either Pakistan or Afghanistan. They would lose the advantages of growing up in the country of their nationality and of being educated here in the United Kingdom. In view of our finding that it is in the children’s best interests to live with their mother who has been their primary carer for all / most of their lives, we do not consider that it is an answer for the respondent to say that as British citizens, the children can simply live here without their mother. It would be unjustifiably harsh for any and all of them to be separated from their mother, particularly in view of the fact that they are only 12, 13 and 15 years old.

31. In assessing proportionality, we have factored into the balance the important public interest in maintaining firm and fair immigration control. We have also factored in that, when the relationship began, the sponsor was already a British citizen and the appellant was a citizen of Afghanistan, such that there can have been no expectation that family life could be enjoyed permanently in the United Kingdom. However, as noted already above, for some considerable time, this family enjoyed their family life in the context of an arrangement whereby the appellant and their children resided in Afghanistan (or Pakistan) and the sponsor would visit his family for a month at a time, to spend time with the whole family. It is because of circumstances beyond their control - the Taliban returning to power in Afghanistan and the current approach of the authorities in Pakistan to migrants from Afghanistan - that this arrangement has become impossible.

32. In all the circumstances, we find that this is an exceptional case, in which that important public interest in immigration control is outweighed by the Article 8 ECHR rights of this family. The refusal of entry clearance to the appellant gives rise to unjustifiably harsh consequences for the appellant, and her children, and is not proportionate under Article 8 ECHR and is thus unlawful under Section 6 of the Human Rights Act 1998.

33. We add that we have not relied on the one-page medical document in relation to the appellant that was provided on the morning of the hearing. This document has not been translated, and we did not need to consider this document in concluding that this is an exceptional case.

Notice of Decision

34. We allow the appeal on the grounds that the respondent’s refusal of entry clearance gives rise to a breach of the Article 8 ECHR.

Kathryn Howarth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

On 12th of March 2025

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004846

Extempore decision
First-tier Tribunal Nos: HU/59103/2023
LH/04944/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

RS
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Osmani, Legal Representative, Times PBS
For the Respondent: Mr Wein, Home Office Presenting Officer

Heard at Field House on 23 December 2024

Order Regarding Anonymity

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

DECISION AND REASONS
1. The appellant appeals with permission of the First-tier Tribunal Judge Adio against the decision of First-tier Tribunal Judge Abebrese, dated 13 August 2024.
Background
2. The appellant is an Afghan national born on 6 August 1975. The appellant is the wife of the sponsor, who is a British citizen. They married on 27 July 2015. They have three children, two of whom live in the UK with the sponsor and one of whom who lives in Pakistan with the appellant. The two children who live in the UK are 13 and 15 years old and the child who lives in Pakistan with the appellant is 12 years old.
3. The appellant applied for entry clearance under the Family Reunion Provisions on 21 February 2023. The application was refused on 4 December 2023. The respondent refused the application for the following reasons:
a. The appellant did not meet the requirements of the Immigration Rules for Family Reunion because the sponsor is a naturalised British Citizen;
b. The appellant has not provided a TB certificate;
c. The appellant was not part of the Sponsor’s pre-flight family unit. The appellant is the sponsor’s post flight spouse;
d. The appellant has provided limited evidence of a genuine and subsisting relationship with the sponsor;
e. The appellant has failed to provide evidence the sponsor could not visit the appellant in Pakistan;
f. The appellant has failed to provide evidence in support of her claim that she is “in a very bad situation and not safe”;
g. The respondent sees no reason why the appellant and sponsor cannot create a life together in Pakistan;
h. The appellant’s three children are British Citizens and can travel to the UK to join the sponsor;
i. The respondent has not identified any exceptional circumstances or compassionate factors.
4. The respondent noted that the applicant had raised a need for protection in her application and drew her attention to the current schemes relating to Afghanistan.
The appeal to the First tier Tribunal
5. The appeal came before the judge on 8 August 2024. The appellant was represented by Ms Osmani of Counsel and the Respondent was represented by Ms Aghadiuno, a Home Office Presenting Officer.
6. The sponsor attended and gave oral evidence.
7. As outlined at paragraph 2 of the judge’s decision, it was agreed that the issues to be determined were:
1. Whether family life existed between the appellant and the sponsor;
2. Whether on the balance of probabilities that there was an interference by the respondent in the appellant’s family life; and
3. Whether any interference had consequences of such gravity as to potentially engage Article 8; and
4. Whether there existed exceptional circumstances such that the decision by the respondent to refuse entry clearance would breach Article 8 ECHR because such a refusal would result in unjustifiably harsh consequences.
8. In a decision dated 13 August 2024, the judge dismissed the appeal.
Appeal to the Upper Tribunal
9. The appellant’s grounds can effectively be summarised as, the judge’s drafting contained errors so fundamental that they result in contradictions within his findings and render his determination unsafe, the judge employed an undue lack of care so evident and so pervasive that at the very least calls into question the regard the judge warranted the appellant’s case and at most indicates that the determination has been materially corrupted, the judge failed to make even a brief contemplation of the interests of the appellant’s children as a primary consideration pursuant to Section 55 and the judge erred in concluding that family life had been established between the appellant and sponsor yet finding differently subsequently. Finally, the appellant argued that the judge wrongfully concluded that it was a choice of the child to stay in Pakistan with the appellant and made his proportionality assessment on that basis.
10. On 21 October 2024 First-tier Tribunal Judge Adio granted the appellant’s application for permission to appeal.
11. The respondent did not provide a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
12. At the hearing Mr Wein, for the respondent accepted that the judge’s determination included a material error of law. Mr Wein accepted that the judge had not correctly undertaken the proportionality assessment and that there had been no reference to the children’s best interests.
13. The Practice Direction from the Senior President of Tribunals reasons for decisions on 4 January 2024 states that reasons in a First-tier Tribunal determination must always be adequate, clear, appropriately concise and focused upon the principal controversial issues on which the outcome of the case has turned and that to be adequate the reasons for a judicial decision must explain to the parties why they have won or lost. I am satisfied that the judge’s decision does not meet this requirement.
14. The judge’s findings are contradictory and unclear. It is not possible for the appellant to understand why she lost, why the matter was decided as it was and what decisions were reached on the main issues in dispute.
15. At paragraph 10, the judge finds that Article 8(1) is engaged on the facts. However, at paragraph 12 the judge finds that family life has not been established between the appellant and the sponsor either in Afghanistan or Pakistan and if so it is only minimal.
16. At paragraph 12, the judge finds that the decision of the respondent “would not result in unjustifiable consequences”, however at paragraph 13 the judge concludes that having considered the case of Agyarko, he is of the view that the decision of the respondent “would result in unjustifiable consequences.” The judge repeatedly refers to the appellant when he means the sponsor and the sponsor when he means the appellant. I have considered whether these are typographical errors and whether the decision could be understood notwithstanding these errors, however, I am satisfied that they cannot. It is not clear what the judge determined on issues identified in the case.
17. In respect of the appellant and sponsor’s children, I am also satisfied that the judge failed to properly consider their best interests or their rights under Article 8 ECHR. There is very little reference to the children in the determination at all. The only consideration of the child in Pakistan is the judge’s finding that they appear to be in Pakistan by choice. The only reference to the children in the UK is that it is noted that they were present at the hearing and that they reside with their father. That is clearly insufficient.
18. I have considered whether the judge misdirected himself in law and am satisfied that he did. I note the Practice Direction, which states that at paragraph 9 that as an expert Tribunal the First-tier Tribunal will generally be taken to be aware of the relevant authorities within the jurisdiction and to be applying those cases without the need to refer to them specifically and that the Upper Tribunal will not readily assume that a Tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision. However, in this case I cannot be satisfied that the judge was aware of the relevant authorities. The judge incorrectly and repeatedly identifies the test he is required to apply as whether the refusal would result in “unjustifiable consequences” when the test is, in fact, whether the refusal would result in “unjustifiably harsh consequences”.
19. I therefore set the judge’s decision aside. I find that no findings of fact can be preserved. Having heard from both the parties I am satisfied it is appropriate to retain the appeal in the in the Upper Tribunal.
Notice of Decision & Directions
1. The First tier Tribunal Judge made a material error of law. Accordingly, the determination dated 13 August 2024 is set aside.
2. The decision will be remade in the Upper Tribunal.
3. A Dari (Afghan Dialect) interpreter will be required.
4. Any party wishing to rely on additional evidence must serve it on the Upper Tribunal and on the other party at least 14 days before the next hearing, accompanied by a statement pursuant to rule 15 (2A) explaining why it should be admitted.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

Approved on 17 January 2025