Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004853

First-tier Tribunal Nos: HU/60474/2023;
LH/04557/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 July 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

NINUOLA OLASIMBO NOFIU FASASI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Adophy, Counsel, instructed by Atlantic Solicitors.
For the Respondent: Ms A Ahmed, Senior Presenting Officer.

Heard at Field House on 17 June 2025

DECISION AND REASONS
1. The Appellant appeals the First-tier Tribunal’s decision promulgated on 12th July 2024 and in which the Judge dismissed the Appellant’s human rights appeal. The Appellant had appealed against the Respondent’s decision dated 15th August 2023 to refuse his human rights application.
Factual and Procedural Background
2. The Appellant is a citizen of Nigeria. He was born in 1976 and entered the UK on 2nd August 2022 with entry clearance as a visitor valid from 29th July 2022 until 29th January 2023. The Appellant’s case at first instance was that he enjoys a family and private life in the UK with his partner and her children. It is not necessary for me to identify the Appellant’s partner and her children by name. Before the First-tier Tribunal, the Appellant accepted that as a result of his entry clearance as a visitor, he could not meet the requirements contained in the Immigration Rules relating to family and private life under Article 8. Nevertheless, he pursued his appeal on the basis that the Respondent’s decision amounted to a disproportionate interference with his, his partner’s and her children’s Article 8 rights.
The Decision of the First-tier Tribunal
3. Insofar as is relevant to these proceedings, the Judge’s findings on the Appellant’s Article 8 appeal can be summarised as follows:
(i) The Judge was satisfied that the Appellant and his partner met in Nigeria in April 2021. Whilst the Judge expressed concern as to a lack of evidence on how their relationship progressed, the Judge was satisfied that they were in a genuine relationship at the time that the appeal was heard – [16];
(ii) The Judge accepted that the partner’s youngest child, has been diagnosed with Autistic Spectrum Disorder (‘ASD’) and suffers from severe sleep problems, again consistent with his diagnosis – [18]. The Judge considered the evidence concerning this child’s difficulties and found that these were well-documented and that he presents with communication difficulties, poor social interaction, restricted and repetitive patterns of behaviour and some aggression at times of distress – [19];
(iii) The Judge found the Appellant’s evidence in relation to the youngest child to be limited to the assistance he provided at night, which enables his partner to sleep and the Appellant can carry this child and get him to school, which his partner struggles with in light of her own difficulties. The Judge also found that nothing was said by the Appellant in his witness statement as to how this child’s best interests were advanced by the Appellant’s presence in the household, other than in terms of the purely physical assistance he is able to give and the support to his partner at night-time, as already referred to – [21];
(iv) In relation to the partner’s older child, the Judge noted with some concern that this child had not been mentioned specifically either by the Appellant or his partner during the hearing. The Judge observed that she had no way of knowing what the relationship between the Appellant and this child is. The Judge noted that this child is 16 years old and would have sat his GCSEs by the time of the appeal hearing. On the evidence, he found it very difficult to live with his brother’s challenging behaviours – [22];
(v) The Judge accepted that the partner herself has some real difficulties to contend with: she is severely sight impaired, suffers from depression and feels very isolated. She struggles with the care of her youngest child and is very vulnerable. The Judge also noted that the partner’s position must inevitably be viewed with considerable sympathy – [23];
(vi) In considering the Appellant’s and his partner’s evidence on the role of the youngest child’s father, the Judge found that the documents available in the case revealed a different picture to the evidence presented by the Appellant and his partner at the hearing and the father was more involved than claimed – [24] to [26].
4. The Judge then went on to direct herself correctly at [27] to [30] in respect of the matters that she was required to consider under s.117B Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and the relevant guiding authorities. At [32], the Judge took, as her starting point, the public interest in the maintenance of effective immigration controls, which fell to be considered in favour of the Respondent’s decision. This was because of the Appellant’s status in the UK as a visitor and his inability to meet the requirements of the Immigration Rules, which the Judge went on to consider in more detail at [35].
5. In respect of the other considerations provided for in s.117B, the Judge accepted that the Appellant speaks good English and that he had not had any recourse to public funds. Further, that there were no issues of suitability or any criminal convictions held by the Appellant, noting correctly however that these were of neutral value. The Judge further found that the Appellant does provide emotional and practical support to his partner but in terms of other support available to her from others, the Judge found the evidence on this to be evasive. At [38], the Judge considered the issue of the best interests of the partner’s children. This passage is key to the Appellant’s appeal in this Tribunal and so for ease, I cite those findings in full:
“38. … This aspect of the case has given me considerable concern. The appellant has now been living as a member of the sponsor’s household for some 18 – 21 months. As I have set out above, the evidence as to the best interests of the sponsor’s son is extremely limited. The appellant and sponsor refer to this only in the most general terms. There is no professional assessment before me.
39. I have already indicated my concern that (the partner’s eldest child) was barely mentioned during the hearing and his best interests not addressed. He is 16 and therefore likely to be able to articulate his point of view clearly. (The partner’s youngest child) is not likely to be able to articulate his views in any conventional sense but is more likely to express himself in other ways. The impact of the appellant’s arrival in the household on both (children) is undocumented, notwithstanding the extensive professional support the family can access.
40. It may well be that the appellant is a force for good in the household, but the reality is that (the oldest child) is a teenage boy and (the youngest) is a 5 year old with ASD and challenging behaviour. The ‘best interests’ of both are very different and I was not satisfied on the very limited evidence before me that their best interests are met by enabling the appellant to remain in the UK as part of their household.”
6. The Judge then went on to conduct the balancing exercise that she was required to undertake and directed herself correctly to the authority of GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630. The Judge concluded at [43] that the Respondent’s decision is a justified, necessary and proportionate interference with the Appellant’s rights. The public interest in the maintenance of immigration controls fell to be considered in the Respondent’s favour and the Appellant was a long way from being able to bring himself within the requirements of the Immigration Rules. The Judge stated that although there were clear, compassionate factors relating to his partner, whom the Judge accepted the Appellant genuinely cares about and supports, she was not satisfied on the evidence before her that it is in the best interests of the partner’s children that the appeal be allowed. Accordingly, the Judge went on to dismiss the Appellant’s appeal.
The Appellant’s appeal to the Upper Tribunal
7. The Appellant raised two grounds of appeal, the first being that the First-tier Tribunal Judge failed to properly apply the provisions of s.55 Borders, Citizenship and Immigration Act 2009 (‘the 2009 Act’), arguing that the duties provided for there also applied to the Judge. Reference was made to guiding authority such as ZH (Tanzania) v SSHD [2011] UKSC 4. Secondly, the Appellant argued that the burden was on the Respondent to justify the interference with the Appellant’s and his family’s rights under Article 8 and the decision did not demonstrate that such justification was provided. The Appellant submitted that the Judge acknowledged at [38] of the decision compassionate factors regarding the partner and had raised concerns about whether granting the appeal would be in the best interests of the children. It was submitted that this was not a reason for refusal advanced by the Respondent in her decision nor was there evidence suggesting that any of the children would be at risk. It was said therefore that the Judge had materially erred.
8. The Appellant secured permission to appeal from the Upper Tribunal in the following terms:
“2. The grounds appear to assert an error in the Judge’s conclusion that the appellant had not established that his presence was in the best interests of the sponsor’s two children. The Judge’s observations on the quality of the case presented by the appellant were unarguably open to her, yet her actual findings on what is in the children’s best interest are somewhat equivocal. It is arguable that the Judge should have considered whether further enquiries were required in order to comply with the procedural obligations described by the Supreme Court in CAO v Secretary of State for the Home Department [2024] UKSC 32 at [48]. While the grounds seek to place the responsibility upon the respondent, it should be recognised that they were filed before the judgment in CAO was handed down. The issue should be explored.
The other criticism of the Judge’s approach (while of doubtful merit) may be argued in line.”
9. In response, the Respondent filed and served a reply under Rule 24 of the Procedure Rules, in which the Respondent defended the First-tier Tribunal Judge’s decision.
10. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued by the Appellant and Mr Adophy, on behalf of the Appellant, also relied on a further skeleton argument prepared, filed and served in support of the grounds of appeal. Ms Ahmed, on behalf of the Respondent, defended the First-tier Tribunal’s decision and elaborated on the Rule 24 response prepared by her colleague. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions. At the end of the hearing, I reserved my decision and provide this below with my reasons.
Analysis and Conclusions
11. Before me, Mr Adophy emphasised what he described as the Judge’s vacillation and what the Upper Tribunal referred to, when granting permission to appeal, as equivocal findings concerning the best interests of the partner’s children. Mr Adophy noted that, on the one hand, the Judge noted that the Appellant may be “a force for good in the household”, but on the other, she expressed strong concerns that the circumstances of the partner’s older child had not been addressed nor had the impact of the Appellant’s arrival on the household either. Mr Adophy submitted that when reading the decision as a whole, the Tribunal had voiced concerns about the lack of evidence concerning the older child in particular. He submitted that given that the Judge was vested with making a decision concerning a child, which included a primary obligation of safeguarding and acting in that child’s best interest, it was incumbent on the Judge to have sufficient evidence or information in order to reach that decision.
12. An example given by Mr Adophy was that the Judge ought to have given consideration as to whether she needed to hear from the older child, who would have been able to voice his wishes and feelings being aged 16 years old. In accepting that the burden of proof did rest with the Appellant, Mr Adophy nonetheless submitted that the Judge could not rationally have made a lawful decision concerning the child’s best interest when faced with such an absence of evidence. Mr Adophy reiterated that this was a lack of evidence that the Judge herself was concerned about.
13. In response, Ms Ahmed’s primary position was that these were not matters, which had been pleaded in the Appellant’s grounds of appeal. Having carefully considered the Appellant’s first ground as pleaded, I am satisfied that the matters elaborated upon by Mr Adophy in the skeleton argument and orally on the best interests assessment conducted by the Judge are sufficiently pleaded in the Appellant’s first ground. Whilst the authority of CAO postdates the Judge’s decision, this does not in my view present any procedural difficulties since I do not understand the Supreme Court’s guidance to have departed from any previous guidance or authorities on the issues that this appeal is concerned with.
14. I am however entirely satisfied that the Judge has not made any errors of law in how she approached the issues of the children’s best interests on the evidence that was before her. The Appellant’s first ground of appeal, as initially pleaded, asserted that there is a duty on the First-tier Tribunal to comply with s.55 of the 2009 Act. That is not correct and that was an issue specifically considered by the Supreme Court in CAO. At [5] of the Supreme Court’s judgment, Lord Sales and Dame Siobhan Keegan emphasised that s.55 places a specific duty upon the Secretary of State (and her officials) to make arrangements to ensure that any functions in relation to immigration are discharged having regard to the need to safeguard and promote the welfare of children. At [39], the Supreme Court rehearsed that the duty under s.6 Human Rights Act 1998 is a duty that applies both to the Secretary of State and to the Tribunal itself. The Court reiterated at [54] the following:
“The difficulty with the reasoning in ZH (Tanzania), para 24, is that the duty in section 55(1) is imposed on the Secretary of State and the duty in section 55(3) is imposed on the persons exercising the functions identified in subsection (2), namely the Secretary of State (including officials acting on his behalf in accordance with the Carltona principle), immigration officers and designated customs officials. They are not duties imposed on the FTT. Instead, the FTT is subject to a duty under section 6 of the HRA to decide an appeal in a way which is compatible with Convention rights, which in the case of a child relying on rights under article 8 requires it to treat the interests of the child as a primary consideration. (…)”
15. It is quite clear from the Judge’s findings summarised above, that she engaged in considerable detail with the Appellant’s evidence pertaining to the partner’s needs and those of her two children. The Judge found the evidence lacking on the Appellant’s claim that his presence was needed for the best interests of the children and for their rights to outweigh the public interest flowing from the Respondent’s decision.
16. As I referred to above, Mr Adophy acknowledged that the onus and the burden of proof rests with the Appellant to prove the facts of his family and private life and the Judge, in my view, gave sufficient, and more than adequate, reasons to explain the concerns that she held with regards to the Appellant’s evidence. Insofar as the judgment of CAO is concerned, and what circumstances may justify further enquiries to be carried out by the Respondent in the furtherance of a child’s best interests assessment, I agree with Ms Ahmed. The Supreme Court has set out what should happen in the generality of cases at [47] of the leading judgment:
”47. Having said this, however, where an appeal is brought to the FTT, as here, by a parent seeking to rely on the best interests of their child in order to say that the child’s removal from the United Kingdom would be in breach of their Convention rights, the burden is on the appellant to make good that case and in ordinary circumstances the FTT will be entitled to assume that the parent has adduced all the relevant evidence which is sought to be relied upon which bears on that issue. It is not incumbent on the FTT to cast about, or to order inquiries to be made, to see whether any evidence has been omitted or overlooked. That is especially so where the parent and child are represented by a lawyer, as the respondent was in this case. This is the basis for the statement of the Upper Tribunal in this case set out at para 29 above.”
17. The Appellant was fully legally represented at first instance and whilst this appeal does not concern a proposed removal of a child, the guidance cited above plainly applies to the circumstances in the Appellant’s appeal. Mr Adophy agreed that para 47 of the judgment in CAO explains what should happen in the generality of cases. However, he submitted that because the Judge had expressed such concern as to the paucity of evidence, to use Mr Adophy’s terms, it was incumbent on her to make those enquiries and this case was ‘out of the ordinary’. I therefore turn to consider the guidance set out by the Supreme Court at [48] of CAO which states as follows:
“Although this is the general position, there may nonetheless be circumstances where, even though a point has not been taken, it is obvious that it requires examination in order to reach a proper conclusion regarding the best interests of a child affected by the decision. For example, if a decision affected a child and no attempt at all had been made to consider their best interests, that would be an obvious omission and the FTT would be bound to investigate to make sure that proper consideration was given to that issue (…)”
As referred to already, Mr Adophy submitted that this appeal was effectively such a case on the Judge’s own concerns on the evidence. Ms Ahmed submitted in response that this was not such a case.
18. Having considered the parties’ competing submissions very carefully together with the Respondent’s refusal decision, I agree with Ms Ahmed that the Respondent had fully considered the children’s best interests in her decision. It is also clear in my judgment that the Judge directed herself correctly throughout her decision. The best interests of the children are a primary consideration in immigration proceedings and not “the paramount consideration”, compared to proceedings under the Children Act 1989. Having weighed all of the relevant factors in the balance, the Judge reached findings that were reasonably open to her on the evidence that was available to her. As I have referred to above at para 14, the Appellant’s written submissions in particular at times did not draw the correct distinctions between the two jurisdictions of immigration law and children family law.
19. With regards to the Appellant’s second ground of appeal, this was not a ground that was elaborated upon by Mr Adophy orally before me nor one that was elaborated further in his skeleton argument. In any event, I am in no doubt that the Judge considered matters applying the correct burdens of proof. She directed herself correctly at [14] with respect to the legal framework that applies in Article 8 appeal.
20. In addition, the Judge set out again in her conclusion at [44] that it was for the Respondent “to show that any interference with Article 8 rights is necessary in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others and that the decision in question is necessary, justified and proportionate”. The Appellant’s second ground of appeal pursued is therefore not made out either.
21. It follows from the above that the Appellant’s appeal to the Upper Tribunal must be dismissed.

Notice of Decision
22. The decision of the First-tier Tribunal did not involve the making of a material error of law and the decision shall stand. The Appellant’s appeal to the Upper Tribunal is dismissed.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

08.07.2025