Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-004958
UI-2024-004959
UI-2024-004960

First-tier Tribunal Nos: HU/56145/2023
HU/26149/2023
HU/56152/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th June 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘FE’ (1)
‘YE’ (2)
‘RE’ (3)
(UZBEKISTAN)
(ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents

Representation:
For the Appellants: Mr A Maqsood, Counsel, instructed by iConsult Immigration, via CVP
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer, in person

Heard in person at Field House and via CVP on 11th June 2025

Order Regarding Anonymity

The Appellants are given anonymity. The reason is that two of the three are minors and the subject matter of the appeal relates to their claimed relationship with the sponsoring father, whom it is said has been granted refugee status. By virtue of naming them, there is a potential risk of jigsaw identification to their claimed father, and vice versa.

Case Management Hearing and Decision pursuant to Rule 34
1. These written reasons reflect my full oral reasons given at the end of the hearing. I had previously directed, in an error of law decision on 13th January 2025, and which is annexed to this decision, that the Appellants be permitted to adduce DNA evidence which addressed the sole issue said to be in dispute, and which was determinative of their appeal against the refusal of their application for entry clearance, namely the relationship as claimed between the Appellants and their sponsoring relative. I had further directed that once the DNA evidence was filed and served, the parties were to confirm their respective legal positions. If the appeal were still pursued or contested, there would be a case management hearing via CVP, to avoid the adjournment of a later full remaking hearing. Without criticism of Mr Walker, the DNA evidence that this Tribunal and the Respondent had apparently received on 11th February 2025 had not made its way to him, so that it was necessary to reconvene the case management hearing for this afternoon.
2. Upon review of the documentation over the lunchtime break, Mr Walker formally confirmed on behalf of the Respondent that the DNA evidence relied upon was indeed from a provider accredited by the Respondent. As a consequence, he conceded that the Respondent accepted that the sponsor and the Appellants were related as claimed.
3. I then explored with the representatives how I should resolve the remainder of the remaking of the Appellants’ appeal. I was very conscious that in terms the Notice of Hearing for the purposes of Rule 36 of the Tribunal Procedure (Upper Tribunal) Rules 2008 had only referred to this being a case management hearing, not a full remaking hearing. I indicated that if he so wished, Mr Walker could seek a further period of time on which to take instructions, albeit I had anticipated understanding the respondent’s position at least, even if not with any concession today.
4. Having considered my questions, Mr Walker confirmed with me two things.
5. First, he said that he was content for me to reach a substantive decision on the remade appeal without the need for notice of a full hearing. This would be pursuant to Rule 34, albeit reached at this case management hearing.
6. Second, for the purposes of remaking, Mr Walker formally conceded on behalf of the Respondent that its decisions to refuse the Appellants’ applications leave to enter the UK to settle with their sponsoring father breached their rights to respect for their family life for the purposes of Article 8 ECHR. I indicated to Mr Maqsood that I did not need to hear anything further from him.
Notice of decision
7. I remake the appeal by allowing the Appellants’ appeals under Article 8 ECHR. The Respondent’s decisions to refuse entry clearance are not upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th June 2025
ANNEX - ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-004958
UI-2024-004959
UI-2024-004960

First-tier Tribunal Nos: HU/56145/2023
HU/26149/2023
HU/56152/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

‘FE’ (1)
‘YE’ (2)
‘RE’ (3)
(UZBEKISTAN)
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondents/Claimants : Mr A Maqsood, Counsel, instructed by iConsult Immigration

Heard in person at Field House on 2nd January 2025

Order Regarding Anonymity

The respondents are given anonymity. The reason is that two of the three are minors and the subject matter of the appeal relates to their claimed relationship with the sponsoring father, whom it is said has been granted refugee status. By virtue of naming them, there is a potential risk of jigsaw identification to their claimed father, and vice versa.

DECISION AND REASONS
1. The written reasons confirm the full oral reasons which I gave to the parties at the end of the hearing. To avoid of confusion, I refer to the parties for the remainder of the judgment as the claimants and the Secretary of State.
2. The Secretary of State challenges the decision of a Judge of the First-tier Tribunal, Judge Hussain, who, in a decision promulgated on 14th July 2024, allowed the claimants’ appeal to be reunited with their claimed father, who had been granted refugee status pursuant to paragraph 352D of the Immigration Rules. The sole issue taken in the respective appeals was whether the claimants were related, as claimed, to their father. Whilst I do not criticise the brevity of the judgment, the conclusions themselves were brief. The Judge stated as follows:
“12. I looked up the HMCTS portal and noted an application for adjournment had been made the day before the hearing [by the claimants]. The basis of the application was that the firm was not receiving instructions from the sponsor and were about to come off the record. However, the sponsor has just returned from abroad and had brought DNA evidence, which is being translated into English. The representative sought an adjournment of 10 days”.
At §13, the Judge asked the Presenting Officer why the Secretary of State had refused the applications. The Presenting Officer said the only issue in dispute appeared to be the claimed relationship. The Secretary of State had refused to accept that relationship because the only evidence of birth was “a certificate and the sponsor’s interview records” although as Mr Maqsood argued, there were certificates for each of the appellants, and the asylum interview record for the sponsor recorded his claim to have a wife and three children. His wife was now in the UK. At §§14 to 15,the Judge stated:
“14. I pointed out that the sponsor has now produced DNA test results, which seemed to support the claimed relationship. He said that the respondent’s position in relation to the test results were that they were not to be given any weight because they were not from an accredited provider. Therefore, they were not reliable.
15. Having regard to the respondent’s position as conveyed through the presenting officer, I concluded that there was no good reason to not treat the DNA evidence, albeit that it was obtained in the appellants’ home country, as evidence of their claimed relationship. In those circumstances, it seemed totally pointless in postponing the hearing. I therefore, indicated that as I was minded to allow the appeal, I would not adjourn. The Home Office presenting officer did not make any further submissions.”
3. The Judge correctly reminded himself that the burden of proof was on the claimants and the standard was on the balance of probability and findings were that the only issue was the claimants’ biological relationship with their father. At §§18 to 19, the Judge noted:
“18. Even if the sponsor omitted to mention the youngest of the appellants in his interview, the fact is that relationship is now proven by means of DNA evidence. Ideally, the test results should have been from a provider accredited by the UK Ministry of Justice. However, I see no reason in principle or policy to take the view that only a United Kingdom accredited DNA tester is qualified to carry out DNA tests.
19. In this case, the tests were carried out by a provider in Uzbekistan. I see no reason to doubt either the competency of the tester or the reliability of the results. Accordingly, I find that the appellants have proven, on the balance of probability, that they are related as claimed.”
The Secretary of State’s Appeal
4. The Secretary of State’s appeal was that the Judge had made a material misdirection in law on a material matter, in particular at §18. This ignored that the Ministry of Justice’s policy was to only accept DNA evidence from accredited providers and that it was irrational for the Judge to conclude that there was no policy or requirement for the DNA testing laboratory to be accredited when the Ministry of Justice expressly maintained a list of DNA testing laboratories, which it published on the UK Government’s website at: https://www.gov.uk/get-a-dna-test/if-youre-getting-a-test-to-use-in-court and which stated:
“You must use an accredited testing laboratory. If you do not, the results will not be accepted in court.”
The Judge had erred in placing determinative weight on DNA evidence provided from an unaccredited DNA laboratory based in Uzbekistan and accordingly the Judge had erred in law.
5. The Judge granting permission, Judge Le Grys, stated that it was arguable that there was inadequate reasoning for the finding that the results from an unaccredited provider were reliable and in placing determinative weight on them.
The hearing before me
6. Without criticism of Mr Maqsood, there was no Rule 24 reply in this case and so until Mr Maqsood made his submissions, neither this Tribunal nor Ms Everett was aware of the basis on which the claimants sought to maintain that the Judge had not erred in law. As a consequence, I invited, and Mr Maqsood agreed, to make submissions first, to which Ms Everett responded, and Mr Maqsood had the final right of reply.
The claimants’ position
7. Mr Maqsood says that the FtT judgment needs to be read in the context of the wider evidence and that matters are therefore not quite as simple as portrayed by the Secretary of State. In particular, there were birth certificates and as he outlined first, all three children had been mentioned during an earlier asylum interview. Second, the three had made an earlier visit visa application, which had been refused, but no issue had been taken as to the genuineness of the relationship. Third, the claimants’ mother had been granted settlement. Against the background of all of that evidence, the Judge’s reasons were unimpeachable. In particular, the Judge had given the Presenting Officer the opportunity to seek an adjournment having, indicated to him that they were minded to grant the appeal, but the Presenting Officer did not make any further submissions. In that context, the Judge’s comments at §18 can be sensibly read as having considered the UK government’s website, which indicates that unaccredited evidence would not be accepted but nevertheless this was not a law and the Judge was entitled to make the finding in the context of the wider evidence. This was a simple disagreement with the Judge’s assessment of the reliability of evidence, which was not solely the DNA evidence.
The Secretary of State’s Submissions
8. Ms Everett submitted that whatever may be said about the wider evidence, those were not the Judge’s reasons. The Presenting Officer had expressly stated at §14 the Secretary of State’s position, namely that because the test results were not from an accredited provider, they should not be given any weight. This was not a case where evidence could appropriately be considered in the round, as per Tanveer Ahmed v SSHD [2002] UKIAT 00439. In this case neither the Presenting Officer nor the Judge was able to analyse the adequacy of the DNA evidence itself, as being otherwise internally consistent or reliable. That was the purpose of accreditation of a testing laboratory, with checks by the UK Government. The Secretary of State could then have confidence in the laboratory’s processes, so that the laboratory’s analysis could then be determinative. If there were a positive DNA result from an accredited provider, to use common parlance, the result was a “slam dunk.” If it were not from an accredited provider, the Secretary of State was entitled to say that the usual effect of the ‘outsourcing’ of a reliable assessment to that provider, on the basis of scientific evidence, could not apply, because neither it nor the Judge had any expertise in assessing the scientific reliability of the testing result, whether by way of chain of custody of material, the reliability of testing itself, or identification checks.
9. Ms Everett accepted that it was open to a Judge, notwithstanding any weakness in the DNA evidence, to have made an assessment based on the wider evidence, as Mr Maqsood argues.
10. However, that is not what had happened here.
11. Instead, in answer to the question of whether the relationship was as claimed, the Judge had relied entirely on the DNA results, reasoning that there was no basis in principle or policy to take the view that only a UK Government accredited DNA tester was qualified to carry out DNA test results. Whilst Ms Everett accepted that it was not a law, there was every reason or principle not to accept an unaccredited provider, and that was why the Ministry of Justice had made the statement on its website. This was not a question of the weigh placed on particular evidence, but an explanation for why the Secretary of State’s position, recorded at §14, was untenable. This was instead a fundamental misdirection of law and/or in the alternative a challenge based on an inadequacy of reasons.
Discussions and conclusions
12. I do not criticise the Judge for the brevity of the reasons. The issue is a discrete one in this case, namely the relationship as claimed. However, I conclude that the Judge’s reasons were inadequate and based on a material misdirection of law. I do not accept, as implied by Mr Maqsood, that the Secretary of State abandoned its clearly stated position, because the Presenting Officer did not seek an adjournment. The burden of proof was on the claimants. It could have been open to the Judge to have considered the wider evidence and even despite the potentially flawed nature of the DNA evidence, to have concluded that the family were related as claimed. However, I do not accept that the direction that there was “no reason in principle or policy to take the view only that a UK accredited DNA tester is qualified to carry out tests” was a correct direction. I accept that the UK Government’s policy is not law, and that Mr Maqsood was correct in saying that the admission of evidence was a procedural matter for the Judge, but the policy of the Secretary of State is nevertheless clear. There is an obvious practical point that where a laboratory produces scientific test results, but the laboratory’s processes have not been accredited, as Ms Everett asks, how could any Presenting Officer or Judge be expected to analyse the adequacy of the scientific processes, for example, the chain of custody etc? I do not accept that the judgment can be fairly read as the Judge having considered not only the DNA evidence, but also the birth certificates and what was said in any screening interviews, referred to at §13. The paragraphs of the judgment under the hearing, “My Findings” are clear. The Judge makes clear that the Secretary of State’s concerns are answered because the relationship is now proven by means of DNA evidence. It is clear that the Judge regarded the DNA evidence as determinative, and that there was no reason to attach any lesser weight to it. Despite acknowledging at §18 that “ideally” the test results should have been carried out by an accredited laboratory, the Judge has failed to explain why notwithstanding the Secretary of State’s grave concerns that the test results from an unaccredited laboratory could be assessed as reliable.
13. In the circumstances, the Judge’s reasons were based on a misdirection and were inadequately reasoned. The Judge’s finding that the claimants are related as claimed to the sponsor are not safe and cannot stand.
Notice of Decision
14. The Judge erred in law such that his decision is not safe and cannot stand. I set aside the Judge’s decision without preserved findings and that the matter will need to be considered entirely afresh.
Disposal
15. I have given consideration to whether to retain re-making in the Upper Tribunal or remit the matter to the First-tier Tribunal by reference to paragraph 7.2(a) and (b) of the Senior President’s Practice Statement. Sometimes individual claimants will be concerned either that they have been deprived of a hearing by virtue of a material error or that the nature and the scope of any fact-finding is such that it is only appropriate to remit matters to the First-tier Tribunal. I am acutely conscious that I have not preserved any findings in relation to this case, which is why I canvassed the views of the parties. For her part Ms Everett was neutral, but she pragmatically accepted that because the issue was so narrow she did not wish the matter to be unduly delayed and it may well be, without putting pressure on the claimants, they were able to adduce DNA evidence from an accredited provider. For Mr Maqsood’s part he urged me to retain re-making in the Upper Tribunal, first because of delays in the First-tier Tribunal, and second because the matter could be potentially resolved, although he did not commit himself to doing so, with the additional evidence from one of the accredited providers. On balance, I am prepared to retain re-making in the Upper Tribunal notwithstanding no preserved findings on the basis that (1) the error did not deprive either party of a fair hearing, and (2) although the nature and the scope of fact-finding is in reality the entirety of the appeal, it is a simply binary issue that can be determined on the basis of scientific evidence and whilst not committing himself Mr Maqsood envisages clearly that this is a possible outcome.
16. Accordingly, I retain re-making in the Upper Tribunal. The parties are encouraged to notify this Tribunal if DNA evidence is sought and adduced and following provision of that evidence, the corresponding positions of the parties. If, following the production of such evidence, the appeal is still disputed, I direct that there be a case management hearing via Teams to identify what the outstanding issues are.
Directions on disposal
17. In summary, the appeal is retained in the Upper Tribunal for a substantive hearing.
18. The parties are directed to notify this Tribunal at the earliest stage of the outcome of any DNA evidence, and to confirm their respective positions.
19. If the appeal is still pursued, it will be relisted for a case management hearing via Teams, to avoid a full remaking hearing that only has to be adjourned.
20. Any evidence disclosed and position statements should be filed via CE-File but served on the opposing party in the normal way.
21. The parties are directed to update this Tribunal no later than six weeks after the seal date of this judgment.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13th January 2025