Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004939

First-tier Tribunal No: HU/62145/2023
LH/02963/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 April 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

HONGJUN CHEN
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bedford (Counsel) Nathaniel Law Chambers Ltd
For the Respondent: Mr Terrell (Senior Home Office Presenting Officer)

Heard at Field House on 3 January 2025

DECISION AND REASONS
Background
1. The appellant is a citizen of China (date of birth 31 March 1958). She appeals against the decision of a judge of the First-Tier Tribunal (“the judge”) promulgated on 4 July 2024 dismissing her appeal against the respondent’s refusal of 28 September 2023 of her human rights claim made on 16 May 2023.
2. The appellant’s daughter and son-in-law and two grandchildren live in the UK and have settled status or are British citizens. The appellant has spent extended periods looking after her younger grandson H (born in 2017 and now aged 7) in China. The appellant last entered the UK in February 2020 with H and her husband, who has since returned to China. The appellant’s claim to remain in the UK was based on her health problems and her relationship with H who has autistic traits.
3. It was accepted before the judge that the provisions of the immigration rules were not met.
4. On the judge’s findings, the appellant and H have lived together either in the UK or China since shortly after H was born, as the appellant visited the UK shortly after his birth and then her daughter and H went back with the appellant to China to visit and then they all returned to the UK together. In February 2018, before H was one year old, the appellant took him to China without his mother so her daughter could return to work as a doctor. H lived with the appellant in China from then until he and the appellant returned to the UK in February 2020 when the pandemic broke out in Wuhan, although H and the appellant visited the UK between February and July 2019 and the appellant’s daughter also visited H and her mother in China.
5. The judge described the appellant and her daughter as credible witnesses and accepted their evidence [33]. He explained that when H was about 20 months old, he was discovered to be speech delayed and the appellant’s daughter arranged for him to have private speech and language therapy in Wuhan. It was suggested he might have autism spectrum disorder. When H became agitated, the appellant spoke softly in Wuhan dialect and learnt how to soothe him [40].
6. H started school in September 2021. His language skills have improved but remain limited and he suffers from behaviour issues at school and at home due to autistic traits [43]. The judge was satisfied that H was very attached to the appellant and if he became very agitated, he looked to her to soothe him. He became agitated on a trip to Disneyland without the appellant [44]. The judge found that because H’s parents both worked full-time, the appellant played a childcare role particularly after-school before the parents returned home and she went to the school when there were behavioural issues which needed attending to [45].
7. The judge found that having the appellant living in the family home was a great comfort and assistance to H’s parents and that the appellant benefited from the practical support of her daughter for her own health problems (the appellant has had multiple episodes of COVID which have severely affected her lung function and blood pressure – she walks with a stick, cannot drive or cook and struggles with stairs [42]).
8. The judge found that there was family life between the appellant and her daughter and between the appellant and H [48].
9. He weighed against the appellant the public interest in the maintenance of effective immigration controls and the fact that she could not speak English. In her favour he took that she had been living with her daughter and grandchildren for more than 4 years, they were emotionally attached and she played a helpful role in particular in H’s upbringing, she could be adequately accommodated and maintained without recourse to public funds, and she had a private life in the UK, although the judge gave her private life only little weight. The judge also took into account in the appellant’s favour that she was suffering from chronic health conditions which restricted her mobility [56] – [59].
10. The judge found that the best interests of the appellant’s grandchildren were to remain living with their parents in the UK. “They would not doubt prefer for their grandmother to continue to reside with them, but I am not satisfied that her continued permanent presence in the household is necessary for their welfare. It is a preference, albeit an understandable preference. Alternative arrangements can be made and afforded by her daughter and son-in-law to provide the after-school care and special needs support to H…” [60].
11. The judge expressed himself not to be satisfied that H’s best interests required the appellant’s continuous presence in the UK. He referred to a school email of 12 March 2024 setting out in detail the plans in place to assist H to manage behavioural problems at school. He found “it is clear from that email that it is his mother who plays the primary role in caring for H… and there is no mention of a specific role for the Appellant in the action plan set out.” [61].
12. The judge explained that the appellant and her grandchildren could be in contact very regularly through modern means of communication and she could continue to visit them in the UK and H could spend time in China during school holidays. He continued “given those options it cannot be said that there would be unjustifiably harsh consequences for the Appellant, her daughter, or the grandchildren if the Appellant were required to leave the UK to ensure the effective maintenance of immigration controls. There are no very compelling circumstances that would justify a grant of leave to remain outside of the Immigration Rules” [63]. It was on that basis he dismissed the appeal.
Claimed errors of law
13. I summarise the claimed errors. It is said that the judge:
(i) Erred in his approach to the relevant legal test by using the phrases “unjustifiably harsh consequences” and “no very compelling circumstances;
(ii) Failed to consider whether there was any public interest at all in removing the appellant by reason of section 117B (6) of the 2002 Act in circumstances where on the evidence accepted by the judge at [33] and as a primary carer for her grandson with special needs, the appellant had a genuine and subsisting parental relationship with a qualifying child;
(iii) Failed to make sufficient findings for the appellant to know why he considered it was unnecessary having regard to the best interests of the appellant’s grandson for the appellant to reside with him in the UK;
(iv) Made inconsistent findings in that the findings at [60] – [63] were inconsistent with his acceptance of the appellant and her daughter as credible witnesses;
(v) Failed to consider the case law of the European Court of Human Rights when discounting private life in the UK, specifically Kaplan v Norway (32504/11) where the family life was established primarily in the country of origin.
Preliminary point at the hearing
14. The tribunal administration and the parties treated permission as having been granted on all grounds by the First-Tier Tribunal judge, as set out at paragraph 3 of the reasons section of her decision. No doubt the permission judge indicated to the administration on the myHMCTS website that she was granting permission, and the parties were so informed. Unfortunately, the decision itself says “Permission to appeal is REFUSED.”
15. I drew to the attention of the representatives that the case of Safi and others (permission to appeal decisions) [2018] UKUT 00388 made clear that it was the decision section of the permission decision which needed to contain the grant of permission as opposed to the reasons. Ali (permission decisions: errors; slip rule) [2020] UKUT 249 indicated that I should correct the obvious mistake under the slip rule. Mr Terrell sought to persuade me that this was a case of the very exceptional circumstances referred to in Safi where I could construe the decision as something other than was said on its face. I appreciate that it was communicated to all parties that permission had been granted and for this reason all parties acted on the basis that permission had been granted. That seemed to me to the paradigm case where a correction should be made under the slip rule for the avoidance of doubt, and I told the representatives that I would do so.
Submissions at the hearing
16. So far as the factual matters were concerned, Mr Bedford submitted that the judge’s decision was incomprehensible on the basis he accepted the evidence of the appellant and her daughter. This was a special relationship between the appellant and H and to say that it might be preferable for H for the appellant to remain in the UK but it was not necessary went against the evidence. It was saying that there was a special relationship, but it was all right to break it. There was no evidence that alternative arrangements could be made as the judge had assumed. The judge’s finding at [62] about maintaining the relationship by modern means of communication and visits might be appropriate if this was an ordinary relationship but the evidence was that the appellant continued to be the primary carer even in the UK and these were not ordinary relationships between grandparent and grandchild. The judge had discounted that special relationship.
17. The judge had said that the email from the school showed that it was the appellant’s mother who played the primary role in caring for H, but the email of 12 March did not mention who was the primary carer. The email of May 7 mentioned various roles, but it also specifically mentioned the role of the appellant; the appellant continued to be the primary carer even in the UK.
18. Mr Bedford submitted that the judge simply had not considered s 117 B (6) of the 2002 Act. He agreed with me that it did not appear to have been raised as an issue at the hearing in the First-Tier Tribunal.
19. He submitted that the judge had not expressed the law correctly or applied the law correctly. He said that GM (Sri Lanka) [2019] EWCA Civ 1630 made clear at [29] – [48] that the test was simply a “fair balance” test. He agreed that Agyarko [2017] UKSC 11 had said at [70] that “a very strong or compelling claim was required to outweigh the public interest in immigration control” but that was in the case of precarious family life. This was not precarious family life. It was significant that H would not have known that his grandmother would have to return to China. The judge had expressed himself in the terms used in section 117 C of the 2002 Act so applying the much stricter threshold and test for dealing with foreign criminals. When conducting the proportionality assessment, the judge had effectively increased the test to unduly harsh. The relevance of Kaplan v Norway was because the relationship with H had been formed in China before the appellant came to the UK. If the applicant in Kaplan who had committed criminal offending were able to remain, then even more so a grandmother with caring duties who had not committed any offending.
20. Mr Terrell submitted that the terminology used by the judge of “unjustifiably harsh consequences” was familiar and appropriate to be used in the context of Article 8 – it was used in GEN 3.2 of the immigration rules. Two broad propositions could be gleaned from Agyarko -firstly that when considering proportionality the court had to give due weight to the respondent’s policy, and secondly that the test was whether the Article 8 claim was one which was very strong or compelling, whether there were “exceptional circumstances” that was “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate”. The family life enjoyed in the UK was precarious because it continued to be enjoyed in the UK at a time when the appellant’s status was precarious – and anything short of indefinite leave to remain was a precarious status. GM (Sri Lanka) relied on Agyarko. “Fair balance” was not a test as it did not explain what weight should be given to particular factors and the law was clear that statutory factors must be given sufficient weight. What the judge did at [63] was perfectly consistent with principle and it was not undermined by his saying that there were no very compelling circumstances. It would be surprising if as an experienced and expert tribunal the judge had become confused with the test in deportation cases. He was simply saying that it took a compelling case to outweigh the public interest where the rules were not met. It could not be said that the public interest was lessened because the family life had not been created in the UK. Kaplan v Norway was an entirely different case and did not appear to have been referred to the judge.
21. It was not appropriate to rely on section 117B (6) which had not been argued before the First-Tier Tribunal. This was a highly sensitive fact specific exercise and case-law such as Lata (FtT: principal controversial issues) [2023] UKUT 163 and TC (PS compliance – “issues-based” reasoning) Zimbabwe [2023] UKUT 164 showed that a judge was not required to trawl through issues which were not identified by the parties.
22. He submitted that the judge had not misunderstood or sought to downplay the best interests assessment. He had looked at the role the appellant played in childcare. He was evidently referring to the second May email, rather than the March email and the factual underpinning came from the second paragraph at p 34 of the pdf reader which explained what the appellant’s role was in terms of looking after H – “you explained that you and your husband both work and that the boys’ grandmother looks after them from 3 – 6 pm each day.” If the only issue with the decision was that the judge had not referred to the specific role for the appellant in the action plan that should not be determinative. It should be assumed that the judge had taken account of all the evidence. He was aware of the appellant’s role and found that she did play a role. The judge’s consideration of who was the primary carer was correct on a fair reading of the emails.
23. In short, he submitted, the judge had appreciated the special factors and had taken them into account. It was effectively being submitted that the decision was irrational, and it had not been articulated what was irrational or perverse about the conclusions reached.
24. Mr Bedford replied that if there was a finding that the evidence was credible, and that included the second part of [18] where the appellant had said in her appeal reasons that she was acting as H’s main carer, then it could not be said that there was no special relationship. It was not a rationality challenge; there was a finding that the appellant was not the primary carer but the evidence that was accepted as credible was that the appellant was the primary carer. In the context of family life, it had to be asked whether “unjustifiably harsh” imported the language of section 117C rather than section 117B of the 2002 Act. Reference to GEN 3.2 of the immigration rules was not pertinent. The judge had ignored that the precariousness of family life in the UK also had to be seen from the perspective of H (see GM Sri Lanka at [39] – [41]). So far as section 117B (6) was concerned, there was a statutory obligation on the tribunal to consider all the section 117B factors; that had not been done.
Discussion
25. Recent authority ( Ullah v Secretary of State for the Home Department [2024]EWCA Civ 201 Yalcin v SSHD [2024] EWCA Civ 74, Chowdhury v SSHD [2025] EWCA Civ 36) has emphasised (see the principles set out in Chowdhury at [49]), that the Upper Tribunal should not rush to find an error of law simply because they would have expressed themselves differently from the First-Tier Tribunal, that the Upper Tribunal should be slow to infer that a point had not been taken into account even if not expressly mentioned, and that judicial restraint should be exercised even though not every step in the reasoning was fully set out, as the issues might be set out by inference. I have borne those principles in mind.
Inconsistent/insufficient findings
26. At times, Mr Bedford’s submissions appeared to verge on the submission that the judge’s conclusion was perverse. It was not perverse. Nevertheless I have concluded that the judge did make inconsistent findings.
27. The judge was clearly sympathetic to the position the appellant and her family found themselves in, made clear and detailed findings as to the history and made positive findings supportive of the appellant and her family. He explained that he found the appellant and her daughter to be credible witnesses and accepted the evidence that they gave [33]. I agree with Mr Bedford however that this is inconsistent with his conclusion at [61] that it is the appellant’s daughter who plays the primary role in caring for H [61]. This is not only because the appeal reasons prepared by the appellant when she was unrepresented, which the judge recites at [18], set out the appellant’s case that she has been acting as H’s main carer for a long time. It is also because necessarily by accepting the evidence the judge would have accepted the appellant’s daughter’s witness statement. That witness statement at p 28 (on the pdf reader) not only explains at [11] that the appellant provides essential care for H but refers to the social services letter (p 82 pdf reader) from the social worker who is supporting H as a child in need. The social worker’s letter refers to the appellant as the main carer in the family home for H. It may well be that the social worker is reliant on what she has been told by the appellant’s daughter; the point is that the appellant’s daughter was evidently, by exhibiting that letter to her witness statement and referring to it, endorsing that the appellant was H’s main carer.
28. The judge’s reasoning that it was H’s mother rather than the appellant who played the primary role in his care was central to his conclusion that he was not satisfied that H’s best interests required the appellant’s presence in the UK [61] and also that alternative arrangements could be made to provide after-school care and special needs support [60].
29. The judge’s references to the emails at [61] for this conclusion are puzzling. The email of 12 March is about managing H’s problems at school. There is no role for anyone outside the school and it is difficult to see without further explanation how the judge could conclude from that email that H’s mother played the primary role in caring for him. The email of 7 May does refer to the appellant’s daughter saying that the appellant looked after the boys between 3 – 6pm each day, but then it does not refer in detail to the roles played by the appellant’s daughter and her husband save that it is recorded that the appellant’s daughter said that she read with H for 15 minutes a day and that her husband spent time with H watching TV. The 10-point action plan has roles for the school, the appellant’s daughter (sharing books about anger and frustration with H and organising a friend for a playdate) and the appellant (playing games with the boys after school to develop H’s social skills). It is right that the appellant’s daughter’s description of her mother’s role from the perspective of the school teacher writing the email is that of an after-school carer, but if this is what the judge meant, it highlights the inconsistency between that finding and the judge’s acceptance of the appellant and her daughter’s evidence [33].
30. The inconsistent findings mean that the judge did err in law. Either he accepted all the evidence of the appellant and her daughter as he appeared to indicate, or he did not as his later findings would lead the reader of the decision to believe. If he was not accepting all the evidence of the appellant and her daughter then there needed to be a clear finding to that effect with reference to why he rejected the appellant’s and her daughter’s explanation given when the discrepant point was put to them by the respondent’s presenting officer or the judge. The only reason given for the judge inconsistently finding that the appellant’s mother was H’s primary carer was the email from the school of 12 March and as set out above, the contents of the email do not support the judge’s contention; even if the judge meant the email of 7 May, it is still unclear why he came to that conclusion.
31. The inconsistent findings are material, they being central to the judge’s conclusion that H’s best interests did not require the appellant’s continuous presence in the UK.
32. I consider that the ground I have summarised at iii) as failing to make sufficient findings is linked with the inconsistency ground. If the judge, as I have found, made inconsistent findings, then he also did not make sufficient findings to explain his ultimate conclusion about what H’s best interests required.
Section 117B (6) Nationality Immigration and Asylum Act 2002
33. Mr Bedford is right to remind me of the mandatory provisions of section 117A of the Nationality, Immigration and Asylum Act 2002. I set the section out below (my emboldening).
34. “117A (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) Breaches a person’s right to respect for private and family life under Article 8, and
(b) As a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must in particular have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) in subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8 (2).”
35. The tribunal is to have regard in all cases to the considerations listed in section 117B, but that does not mean that the tribunal needs to investigate whether a person has a genuine and subsisting parental relationship with a qualifying child (section 117 B (6)) if that is not raised by a party or their representative or it is not obvious that section 117B (6) is engaged. Lata explains that a judge should be focussing on the issues in dispute as identified by the parties. The decision does not suggest it was submitted to the judge that section 117B (6) applied and on the judge’s findings (albeit inconsistent) that the appellant’s daughter rather than the appellant played the primary role in caring for H, it was certainly not self-evident that the sub-paragraph applied, rather the contrary. There is therefore no error of law in this respect.
Did the judge take the wrong legal approach/not properly consider ECHR case-law?
36. Of course, Mr Bedford is right to say that the ultimate test is simply whether a “fair balance” has been struck between the private and public interests. He is also right to remind me that Agyarko was a case where the Supreme Court were specifically considering leave to remain under the partner route brought by a person in the UK in breach of immigration laws.
37. However, the observations and the test in Agyarko are not confined to cases where family life has been formed when the person was in the UK. They are of more general application. The Supreme Court were considering, as they said at [39], what the correct approach was to the application of article 8 to the removal of a non-settled migrant, and whether the question in the then policy instructions of whether there were “exceptional circumstances” was one which could properly be asked when considering whether to grant leave to remain outside the rules to a non-settled migrant with a precarious family life.
38. It should be noted that in Jeunesse v the Netherlands (application no 12738/10) the Court of Human Rights case explained and referred to in Agyarko the family life between the appellant and her husband (who was then the appellant’s cohabiting partner) had been formed before the appellant’s partner migrated to the Netherlands and the appellant later entered and overstayed her visit visa by many years. Although the children had been born in the Netherlands, the Court of Human Rights still explained (at [108]) that the relevant principle was whether “family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the Host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8”. The Court of Human Rights commented that the applicant was aware, well before she commenced her family life in the Netherlands, of the precariousness of her residence status [113] but applied that exceptional circumstances principle “the Court must thus examine whether in the applicant’s case there are any exceptional circumstances which warrant a finding that the Netherlands authorities failed to strike a fair balance in denying the applicant residence in the Netherlands”.
39. In this case although family life was begun before the appellant last entered the UK, the plan was that although H would when young live with her in China, ultimately he would return to his parents in the UK. The appellant would have appreciated that from her perspective maintaining family life in the UK could only be precarious. It is right that of course the appellant as a baby when family life began could not possibly have known anything about the legal niceties. The children in Jeunesse would not have appreciated that either. Indeed in Kaplan v Norway on which Mr Bedford relies, the Court of Human Rights had regard to the principle that it was an important consideration whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of family life within the host state would from the outset be precarious [81] and concentrated on the adult’s awareness of precariousness. “Weighty immigration policy considerations in any event militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that the parents exploit the situation of their children in order to secure a residence permit for themselves and for the children (see Butt v Norway, no 47017/09, [79], 4 December 2012). Their family life had continued in Norway at a time when both their parents were aware that their immigration status in the country was such that the persistence of that family life would be precarious” [86]. The Court however continued to consider, finding in favour of the applicants, whether the removal of the first applicant from Norway was incompatible with Article 8 of the Convention “on account of exceptional circumstances pertaining in particular to the best interests of the youngest child” [88].
40. It is against that background that the Supreme Court in Agyarko concluded at [60]: It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word “exceptional,” as already explained, as meaning “circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.” So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with article 8. That conclusion is fortified by the express statement in the Instructions that “exceptional” does not mean “unusual” or “unique.”
41. It is right that in GM (Sri Lanka) the Court of Appeal considered that the awareness of precarious status would include the children’s awareness [39] although when considering the analysis of precariousness, they discussed only the husband’s knowledge of the ability for family life in the UK to persist [41]. They still endorsed the position [47] that even where residence was in breach of the rules (and I observe that the appellant in this case had no leave at the date of her application) leave could be granted in exceptional circumstances where removal would result in “unjustifiably harsh consequences”.
42. The phrase “exceptional circumstances” meaning “unjustifiably harsh consequences” appears now in immigration rules not only in GEN 3.2 of Appendix FM (which applies to applications by partners, parents and children on the basis of family life) but in other parts of immigration rules involving family life which it is asserted can only be continued in the UK such as Appendix Adult Dependent Relatives. Judges are perfectly justified in using it as a shorthand to explain the proportionality test in non-deportation cases. That it is a shorthand to explain the proportionality test does not mean that judges can apply other than a “fair balance” and of course what is a fair balance will depend on the precise circumstances and all relevant factors including whether there are children involved whose best interests must be considered as a primary consideration at least in part because they are not responsible for the choices made by the adults in their lives and have no agency of their own in the migration sphere. The phrase “unjustifiably harsh” is simply a reminder that although any decision will be “harsh” because it represents the state interfering in an individual or a family’s private and family life, courts and tribunals have to take the secretary of state’s policy into account and to attach considerable weight to it at a general level (see [47] of Agyarko) when considering whether the private/family life claim is strong enough to outweigh it. In GM (Sri Lanka) at [28] the Court of Appeal noted as its second principle that national authorities had a margin of appreciation when setting the weighting to be applied to various factors in the proportionality assessment and that a court must accord “considerable weight” to the policy of the Secretary of State at a “general level”.
43. Of course it is right that section 117B now puts on a statutory basis that the maintenance of effective immigration controls is in the public interest, but using the phrase “unjustifiably harsh” does not of itself import that a higher test is being applied to the public interest. The phrase is well-known and, as I have set out above, has been used for many years in the UK in the context of non-deportation related human rights claims. “Unjustifiably harsh” is known to be different from “unduly harsh” used in the context of deportation. The public interest is not a fixity, and in the same way family or private life can be stronger or less strong and other features such as unlawful immigration status when family life was formed or by contrast limited leave, but on a route to settlement, can make the family or private life claim more or less compelling. The public interest is stronger in deportation cases but that still does not mean that using the phrase “very compelling circumstances,” which is used in section 117C in the context of deportation means inevitably that the higher test is being applied. After all, in Agyarko the Supreme Court referred to “a very strong or compelling claim” being needed to outweigh the public interest even in circumstances where deportation was not involved and “very compelling” and “exceptional circumstances” have been equated by the European Court of Human Rights (see [56] of Agyarko). The use of the phrase is context dependent and of course vigilance must be exercised in case a judge is in fact importing the higher deportation test.
44. In this case whether the judge’s decision is Article 8 compliant turns on his factual findings, not the way he described the legal test. I have found that the judge was in error of law because of inconsistent findings, and that a phrase associated with the deportation test crept into his decision at the end, despite otherwise correctly directing himself as to the law, would not have made a difference if there had been no error in his findings.
Conclusion
45. Because of the inconsistent and therefore insufficient findings as set out above, the judge’s decision is set aside for material error of law. I have considered whether the remaking should be retained in the Upper Tribunal, but I consider it should not be for two reasons. Firstly, and most significantly, that the judge’s findings were inconsistent means that I have no real basis for preserving one or other of those findings so there will be the need for relatively extensive fact finding. Secondly it is now almost nine months since the hearing in the First-Tier Tribunal and in whichever venue the appeal is reheard, it is likely to be approaching a year before the remaking. Nine months to a year is a long time in the life of a child of H’s age and there may well have been significant changes in his behaviour and potentially a full diagnosis of his condition with recommendations for treatment. The appellant’s health may also have changed. Inevitably to reach an Article 8 compliant decision there will need to be extensive further fact finding.
46. I preserve the judge’s findings as to the background to this appeal at [34] – [43] and the finding at [48] as to family and private life as at June 2024. The findings at [42] – [45] are preserved with the caveat that is a description of the position as at June 2024 and that preservation of the finding that the appellant played a childcare role after school as at June 2024 is not intended to preserve any implicit finding that her role was limited to that aspect.
Notice of Decision
The judge’s decision contains a material error of law and is set aside with the findings referred to at [46] above preserved.
The decision is remitted to the First-Tier Tribunal at Hatton Cross to be decided by another judge.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 March 2025