Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-005097
UI-2024-005098
First-tier Tribunal No: HU/61393/2023
LH/04547/2024
HU/58584/2023
LH/04546/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

SAMAR ALBATAH and MAHMOUD ALZAIN ALHASSAN
(ANONYMITY ORDER MOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Solanki, Counsel instructed on behalf of the appellants
For the Respondent : Mr Diwnycz, Senior Presenting Officer on behalf of the respondent

Heard at (IAC) on 5 August 2026

DECISION AND REASONS
1. The appellants appeal with permission against the decision of the First-tier Tribunal Judge (hereinafter referred to as the “FtTJ”) who dismissed the appellants human rights appeal in a decision promulgated on the 6 August 2024 .
2. Permission to appeal that decision was sought and a partial grant of permission was issued by a Judge of the First-tier Tribunal on 4 November 2024.
3. The FtTJ did not make an anonymity order, and no grounds were submitted during the hearing for such an order to be made.
4. The appellants are husband and wife and are nationals of Syria currently residing in Turkey who appealed to the First-tier Tribunal (“FtT”) against a decision to refuse their respective applications made for leave to enter the UK as Adult Dependant Relatives (“ADR”) made under Appendix FM and in the context of a human rights claim.
5. In a decision promulgated on 6 August 2024 , the FtTJ dismissed their appeals. There was no dispute between the parties that in light of the medical evidence provided that Paragraph E-ECDR 2.4 was met. This required that the applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks. The FtTJ summarised the medical evidence at paragraph 6 as follows, “Both appellants suffer with a range of health related issues. A number of these conditions are associated with old age and affect their mobility. In particular Mr Alhassan suffers with Ataxia, a neurological condition affecting his balance, causing frequent falls. He requires a knee replacement and the need for a wheel chair. He also suffers with hearing loss making communication difficult, as well as a number of other conditions. Mrs Albatah suffers with back pain issues affecting her mobility, ability to stand for extended periods and perform chores.”
6. What was an issue under the Rules was whether E-ECDR 2.5 was met. This provision is as follows:
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because- (a) it is not available and there is no person in that country who can reasonably provide it; or (b) it is not affordable.
7. On the FtTJ’s assessment of the evidence the FtTJ reached the conclusion that the appellants had failed to discharge the burden of proof to show that their care needs were either not available or affordable in Turkey by reference to the evidence provided. The FtTJ also took into account that the care of the appellants could be provided by family members and that the circumstances relied upon fell short of demonstrating that there were unjustifiably harsh consequences and thus did not meet the requirements of GEN 3.2 . The FtTJ also did not find that family life was established between the sponsor and the appellants.
8. At the hearing, Ms Solanki of Counsel appeared on behalf of the appellants by way of a remote link and Mr Diwnycz appeared on behalf of the respondent at the hearing centre. The sponsor was also in attendance so that she could follow the proceedings.
9. As a preliminary issue, the ambit of the grounds of challenge was raised by Ms Solanki. The grant of permission by the FtTJ was a partial grant of permission and purported to grant permission on ground one only. However, on 3 August 2026 the electronic filing system referred to correspondence from the solicitors representing the appellants exhibiting a document entitled “renewed grounds of appeal” which had been settled by Counsel on 29 November 2024, which sought to renew the grounds where permission had not been granted. This was accompanied by an email confirming that whilst the appeal had been submitted to the Upper Tribunal it had been rejected as an incomplete application. Ms Solanki provided an explanation for this having occurred but also for the delay in bringing this to the attention of the Tribunal. This had been the subject of prior communication to the respondent. It was not necessary to reach any conclusion on those renewed grounds as both parties agreed that the grant of permission purporting to limit the grounds did not comply with the requirements as set out in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC). There had been 3 grounds set out in the original grounds of challenge and whilst the FtTJ gave reasons for granting permission on ground one, the FtTJ appeared to address ground 2 but failed to address ground 3 both in the body of the decision but also in the heading and thus also failed to meet the requirements of Rule 34 (2) of the Tribunal Procedure Rules (First-Tier Tribunal) 2014 ( as amended) whereby if refusing permission on a ground raised, reasons should be given. Mr Diwnycz on behalf of the respondent agreed with Counsel for the appellants that in the circumstances all three grounds of challenge should be the subject of the appeal before the Upper Tribunal.
10. Mr Diwnycz further confirmed that he had considered the grounds of challenge and that he conceded on behalf of the respondent that all three grounds disclosed the making of an error of law material to the outcome. In the light of that concession, he was asked to set that out in a Rule 24 response and time was given to him to provide that written document. On resuming the hearing later in the day Mr Diwnycz confirmed the concessions made in his oral submissions. In addition, Ms Solanki took the Tribunal through the grounds of challenge and by reference to the material in the composite bundle.
11. The parties are therefore in agreement that the decision discloses the making of an error of law and that the decision should be set aside with no findings of fact preserved. Given that the parties have reached that agreement it is only necessary to set out in brief terms the basis upon which that is made.
12. Whilst Ms Solanki relied upon a number of points which related to each of the three grounds, having heard those submissions and considered them in the light of the material and the decision of the FtTJ, I am not satisfied that all the points relied upon have been established. I do not consider that it has been established that the FtTJ erred in the assessment made of the accommodation the appellants were living in on the basis advanced in the grounds. The FtTJ was plainly aware of the medical evidence which had been summarised at paragraph 6 and the FtTJ also had the medical reports in the consolidated bundle. The findings made in relation to the accommodation was a consideration of the present circumstances and how their medical needs could be addressed in the context of their general care needs. The type of accommodation available to them would necessarily impact what their care needs were likely to be for the future and was therefore a relevant consideration.
13. Nonetheless paragraph 5 of the grounds is made out. The ASA relied upon the respondent’s policy guidance as it then was ( see paragraph 32 of the ASA) and provided some examples of relevant circumstances whereby one person may meet the rules even if the other did not. That was not addressed by the FtTJ and it is not known what the assessment would have been had the FtTJ undertook an assessment of this or had given consideration to the guidance before reaching an overall decision.
14. The grounds submit that the FtTJ failed to explain why and on what evidence their respective care needs were being met. At paragraph 25 the FtTJ found there was no “on the ground help being provided” and this this led to the conclusion that the practical care of Mr AlHassan was being carried out by his wife.
15. The evidence on this issue was not clear. However, there is merit in the submission made by Ms Solanki that in this context the FtTJ appeared to misunderstand the evidence about the present care arrangements. It was not clear to me who was available in Turkey to provide the assistance until pointed to the evidence in the sponsor’s witness statement and that their care appeared to been carried out by family members visiting Turkey including the appellant’s sister (at paragraph 42). Consequently, the findings made did not engage with the evidence relevant to the present care arrangements and thus the findings made are flawed in this respect.
16. The real issue identified in the grounds is that set out at paragraph 6. The findings made between paragraphs 27 – 29 that relates to their circumstances does not take account of the reasonableness of the required level of care ( see BRITCITS at paragraph 59 alongside the respondent’s guidance that was in force at that time). The FtTJ did make some reference to the cultural considerations (see paragraph 28), however whilst the required level of care is a matter to be objectively assessed it is individualised and fact specific and from the perspective not only of the provider but also from the applicant. There was specific factual evidence given by the sponsor relating to the difficulties that her parents had in the provision of care and likely assistance which was not factored into the assessment made of this issue.
17. By reference to Ground 2, which challenges the assessment of Appendix FM GEN 3.2, the parties are in agreement if ground 1 is made out then ground 2 is also made out. For those reasons it is not necessary to make any further assessment of that ground, but it is necessary to consider ground 3 because this challenges the assessment made of article 8 (1) and whether there was family life established and thus would impact on Ground 2.
18. Mr Diwnycz concedes on behalf of the respondent that ground 3 is also made out. By reference to background the documentary evidence sets out a complex history of movement of the family members set against the conflict in Syria. Some of that history was recorded between paragraphs 36 – 38 of the FtTJ’s decision and was plainly considered but other parts of that history as relied upon by Ms Solanki was not taken into account. In particular at paragraph 38 the FtTJ referred to the lack of clarity as to why the appellants moved to Turkey. However, that was addressed by the sponsor in her witness statement and also by reference to the past conflict and the living arrangements of the family. Thus, it is not clear if the full factual matrix had been taken account of when reaching the overall assessment of whether family life was established.
19. Ms Solanki also refers in her submissions to the finding made as to family life and that there was some confusion as to whether the FtTJ had made a finding that family life had later been re-established (by reference to paragraph 42). It is not clear whether the FtTJ found that no family life had been established between the sponsor and the appellants since the sponsor had embarked on her own independent life via her marriage and later family history or whether their previous family life had been re-established. There is a lack of clarity in that assessment which the respondent accepts.
20. In summary whilst not all of the points raised in the grounds are established, there are sufficient grounds identified above and in the light of the respondent’s concession are sufficient to set aside the decision.
21. Both parties have invited the Upper Tribunal to set aside the decision and in view of the fact finding that is necessary on all parts of the claim the appeal should properly be heard afresh. The request made in the grounds is that both appeals should be remitted to the First-tier Tribunal.
22. I have given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal. I have considered the issues in the light of the practice statement recited and the recent decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and the decision in Begum [2023] UKUT 46(IAC. ) As to the remaking of the decision, I am satisfied that in light of the errors of law identified and the fact findings which will be necessary, the appeals fall within paragraphs 7.2 (b) of the practice statement. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I therefore remit the appeal to the First-tier Tribunal for that hearing to take place.
23. Accordingly, I am satisfied that it would in all circumstances be appropriate to set aside the decision in its entirety and for it to be remitted to the First-tier Tribunal to be heard afresh with no findings of fact preserved.
24. Whilst the directions are for the FtT to consider, I invite the parties to liaise promptly to deal with the matters set out below as this might enable there to be a more efficient listing and hearing at the First-tier Tribunal. Counsel’s availability should be provided and any witnesses who will be giving evidence and agreed draft directions including the filing and service of any updated evidence ( if so relied upon).
Decision
25. The decision of the First.-tier Tribunal involved the making of an error on a point of law; the decision is set aside and shall be remitted to the First-tier Tribunal to be heard afresh with no findings of fact preserved.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

5 August 2026