Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005137

First-tier Tribunal Nos: HU/63333/2023 LH/03952/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘ZY’ (Türkiye/Republic of Cyprus)
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Philps, Counsel, instructed by Ronald Fletcher Baker LLP
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer

Heard at Field House on 8th September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, a minor, and any member of his family is 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 any member of his family. This is because he is a minor.

DECISION AND REASONS
1. This is the re-making decision in respect of the appellant’s appeal, following an error of law judgment issued by Judge Hoffman following a hearing on 16th July 2025. Judge Hoffman’s judgment is annexed to these reasons.
2. The appellant is a minor, born on 26th May 2023 and so is just over two years old at the date of this hearing. His mother, whom I do not name, and to whom I refer for the remainder of these reasons as the sponsor, gave witness evidence.
3. Judge Hoffman had anticipated that the issues in this case would be relatively limited because the appeal could proceed on the basis of submissions only, as the key issue was whether the respondent’s decision had led to unjustifiably harsh consequences for the appellant. At the time of Judge Hoffman's decision, it appeared that the sponsor, an EU (Cypriot) national with indefinite leave to remain in the UK, was outside the UK, as was the appellant.
4. The sponsor had undergone IVF treatment in Northern Cyprus with her husband, a Turkish national. She gave birth to the appellant in Northern Cyprus, when living there with her husband. As a consequence, the appellant is not a British citizen, which he otherwise would have been, had he been born in the UK. The sponsor’s husband, from whom she was now estranged, had previously entered the UK, overstayed and voluntarily returned to Northern Cyprus. The sponsor says that she had intended to return to the UK before giving birth but was advised by her doctors not to do so, in the context of a difficult pregnancy. Because the appellant was not a British national, the sponsor had had to apply on his behalf for his entry to settle with her in the UK.
5. At the time of a decision before a previous First-tier Tribunal Judge, Judge Wilson, in a decision promulgated on 2nd September 2024, Judge Wilson had considered the circumstances of the sponsor and her husband having a subsisting relationship, but nevertheless that the sponsor wished to return to the UK with the appellant. In fact, what the sponsor now says is that at the time, her relationship with her husband was already breaking down, such that she feared physical violence either from his family or from him, and the situation of living with him in Northern Cyprus was becoming increasingly intolerable. Although the circumstances were not apparently raised with Judge Hoffman at the error of law hearing, by the time of that hearing, the sponsor and the appellant had already entered the UK on 3rd April 2025, with, it is claimed, the estranged husband’s agreement. The sponsor was able to do so because she had indefinite leave to remain. The appellant was able to do so, although it had not been apparent from the documents before Judge Hoffman, because the appellant has dual nationality: Turkish and as an EU (Cypriot) citizen. As a consequence of the latter, he was able to travel to the UK on a “European Travel Agreement” or ETA document, for a six-month period. The sponsor obtained this on 3rd April 2025 when she was at the airport, travelling to the UK.
The issues and the hearing
6. As a result of the recent developments, I canvassed with the representatives the issues which I was being asked to consider. I also set out below how the hearing proceeded.
7. In terms of the issues, Ms Philps accepted on behalf of the appellant that there was a potential “new matter” for the purposes of section 85(6) of the Nationality, Immigration and Asylum Act 2002, namely whether the appellant’s human rights appeal should be considered under Paragraph 298 of the Immigration Rules, specifically indefinite leave to remain in, (as opposed to enter) the UK. Mr Wain indicated that the respondent did not consent to my considering this new matter.
8. However, both representatives agreed that there were two issues before me which I could consider, both in the context of the appellant’s human rights claims, as considered through the lens of the Immigration Rules. If the appellant met the Immigration Rules, it was agreed that this was determinative of the appellant’s appeal on human rights grounds (see §34 of TZ (Pakistan) and PG (India) v SSHD) [2018] EWCA Civ 1109.
First issue – sole responsibility for the appellant’s upbringing
9. The first issue was whether, for the purposes of Paragraph 297(i)(e) of the Immigration Rules, the sponsor, being present and settled in the UK, had sole responsibility for the appellant’s upbringing. Ms Philps explained that there had been confusion as the appellant’s application had originally been on the basis of 297(i)(f); the respondent had refused it on the basis of Paragraph 297(i)(e); and while the sponsor had conceded at the time of the previous application that she did not have sole responsibility, matters had moved on since then. I was asked to consider ‘sole responsibility” by reference to TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 (§52):
“Questions of "sole responsibility" under the immigration rules should be approached as follows:
i. Who has "responsibility" for a child's upbringing and whether that responsibility is "sole" is a factual matter to be decided upon all the evidence.
ii. The term "responsibility" in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. "Responsibility" for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.
vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.
ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions in the child's life. If not, responsibility is shared and so not "sole".”
Second issue – whether there are serious and compelling family or other considerations which make exclusion of the appellant undesirable and suitable arrangements have been made for his care
10. The second issue, if there remains joint responsibility, is in the alternative, whether the appellant meets the requirements of Paragraph 297(i)(f). The representatives agreed that on this issue, the sole question was whether there were serious and compelling family or other circumstances which made exclusion of the appellant undesirable. Mr Wain confirmed that no other issues were taken in respect of Paragraphs 297(ii) to (vii). In this context, I was asked to consider the authority of Mundeba (s.55 and para 297(f)) [2013] UKUT 00088 (IAC). Section 55 of the UK Borders Act 2009 applied as the appellant was now in the UK. Headnotes (iv) and (v) of Mundeba stated:
“iv) Family considerations require an evaluation of the child's welfare including emotional needs. 'Other considerations' come in to play where there are other aspects of a child's life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
a there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child's physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important”
11. Finally, as in all human rights appeals, and assuming that the appellant’s right to respect for his family life was engaged, I needed to consider proportionality by reference to the factors set out in Section 117B of the 2002 Act.
12. I canvassed with the representatives that there is no suggestion that the sponsor has taken the appellant unlawfully from Northern Cyprus where he was previously habitually resident, which would engage the Hague Convention on the Civil Aspects of International Child Abduction (1980), if it were applicable.
13. The sponsor adopted two written witness statements, one before the First-tier Tribunal which she indicated had not been wholly accurate. This was because she had not given evidence to the First-tier Judge, because she had not been permitted to give evidence remotely. She was scared of her husband when she had given instructions about her statement. She also relied on an updated supplementary statement. She gave evidence mainly in English although on points of clarification, she did so with the assistance of an interpreter in Turkish. There were no apparent or expressed difficulties with the interpretation.
14. I set out below the respective parties’ cases, and I do not recite the witness evidence unless it is necessary for me to explain why I had reached my decision.
The appellant’s case
15. After trying to conceive with her estranged husband over many years, the sponsor had become concerned, aged 40, that time was running out and their options were narrowing. She was concerned about the affordability of IVF treatment in the UK. She had been advised that she would need to wait for many years for such treatment on the NHS. She accepted in evidence that she had significant savings, but her husband’s family had offered to pay for IVF treatment in Northern Cyprus. The family had spent in the region of £50,000 for that treatment and she and her husband successfully conceived. However, and as confirmed in a subsequent gynaecologist’s letter dated 9th August 2023, once she was pregnant, she was advised because of bleeding and hypertension not to fly. As a consequence, she remained and gave birth to the appellant in Northern Cyprus. It is her case that notwithstanding her comments in her original statement before the First-tier Judge that her husband provided for the family financially and that he was involved at the time in the appellant’s life, nevertheless by the latter part of 2024 the relationship was encountering significant difficulties. She had been assaulted by a member of her husband’s family, and he had done nothing to defend her. The pressures and difficulties arose because of her husband’s family’s concerns that she would not be able to conceive a second child, with it being culturally expected that she should do so. Her husband’s family were putting pressure on him to divorce her and/or to take another wife to have further children.
16. The sponsor had a number of full siblings in the UK, (she also had half siblings) at least one of whom had paid for her housing and financially supported her where she lived in Cardiff. She accepted that her mother remaining living in Northern Cyprus with two of the sponsor’s elder sisters. However, they lived in close proximity, in a small village, to her estranged husband’s family. Prior to the hearing before Judge Hoffman, she had left her husband, left the appellant in the care of her mother and two sisters as she did not trust her husband to care for the appellant and she was also concerned that his family would not give up the appellant, and travelled to the UK. She did so in part to ensure that her indefinite leave to remain did not lapse and also to pursue the appeal. She then returned to Northern Cyprus and brought the appellant back to the UK in April 2025, with her estranged husband’s consent.
17. When this Tribunal asked her about evidence of her husband’s consent, the sponsor referred to a notarised document in which he had agreed to the child living outside Northern Turkey with the sponsor in the UK. The sponsor accepted that this was for a fixed six-month period from 3rd April, but she explained that this was only for a limited period because of legal requirements. Nevertheless, the estranged husband had indicated no desire to see the child again and had not limited his consent so that the appellant could only live in the UK for six months. The sponsor’s husband had ceased providing any financial support since the sponsor and the appellant had moved to the UK and she had had no contact with him since. If it were necessary to get further confirmation of his ongoing consent, she would contact her husband, but she had currently blocked his phone calls as every time he spoke to her, he used abusive language. That being said, she had asked her mother, who lived in the village, whether the estranged husband had done anything to enquire about her and her son and the mother had received no enquiries. The sponsor did not even know of his whereabouts or whether he had remarried. The sponsor confirmed that if the law required it, she would return but she could not bear the thought and could not return to the village in which she had lived with her mother and sisters shortly before travelling to the UK. There was an ongoing threat of intimidation from her husband’s family, in circumstances in Northern Cyprus where if somebody had local connections, for example with the police or hospitals, it was a very close community, and she felt unsafe. She would go to the ends of the earth to look after her child and ensure his best interests and she indicated that these lay unquestionably in remaining in the UK where she had indefinite leave to remain and had lived since the age of 14, for 30 years. She also had many siblings here and they would be no burden to the UK taxpayer, as the sponsor was being provided for by her immediate family, where she lived with the appellant in Swansea.
The respondent’s position
18. The respondent did not dispute that the sponsor was estranged from her husband. However, the respondent disputed that the sponsor and her husband were estranged to the extent that he had no longer any parental responsibility for the appellant. In particular, the appellant’s version of events, as presented to the First-tier Judge, had materially changed both in terms of financial support and also estrangement, as before the appellant had been taken from Cyprus, the father had played an active part in his life. Moreover, there were no serious or compelling circumstances why the child could not be returned to Northern Cyprus, along with the sponsor. The sponsor had done so previously. She had lived with there her mother. There was accommodation, with her sisters. In the alternative, by reference to Article 8 ECHR, there was unquestionably a public interest in immigration control which the sponsor appeared to have circumvented, by bringing the appellant into the UK on an ETA for a temporary period, when the sponsor had no intention of returning him to Northern Cyprus. It was also relevant, for the purposes of the proportionality assessment that the financial means of the appellant including her savings and those of her husband’s family meant that had she wished to, she could have had IVF in the UK. Her travel to Northern Cyprus was out of choice and should not weigh in a proportionality assessment in the sponsor’s favour.
Findings and conclusions
19. On the one hand, I am conscious that there was a significant paucity of documentary evidence in relation to the changed circumstances, compared to how those circumstances were presented to Judge Hoffman and Judge Wilson. The sponsor’s previous witness statement had spoken of her family life with her husband in Northern Cyprus and a desire, nevertheless, for her to return with the appellant to the UK because of his significant health issues.
20. However, while this might have damaged the appellant’s credibility, her oral witness evidence was largely uncontested. I also regard the appellant’s evidence as generally credible. She has explained, whether misguided or otherwise, that she was concerned that there were lengthy waits for IVF treatment in the UK and that her husband’s family were willing to fund IVF treatment, but only if it were in Northern Cyprus. I accept her explanation that this is why, with a desperate desire to become a parent and worried that time was running out to conceive, she had decided to opt for IVF treatment in Northern Cyprus. Her inability to return to the UK during her pregnancy is corroborated by the gynaecologist’s letter which I have seen.
21. While I place limited weight on the notarised letter from the appellant’s husband (I do not know of its legal effect, assuming, as I do, that it is genuine and it is time-limited), the separation of the sponsor and her husband is accepted. I accept the sponsor’s evidence that she has had no further contact from her estranged husband, even indirectly and he has provided no financial support since April 2025 when she left Northem Cyprus. I find that she has taken all decisions, alone, in respect of the appellant’s life since then.
22. I am satisfied, despite the limited documentary evidence, that the sponsor does have sole responsibility for the appellant’s upbringing and has entered the UK with him. This may not have always been true in the past, but it is true at the date of this hearing. Were the appellant applying for entry, but for the fact that he is already in the UK, I conclude that he would otherwise meet the requirement of Paragraph 297(i)(e). However, in the alternative, even if the sponsor’s estranged husband had residual shared responsibility for the appellant’s upbringing, I am satisfied that there are serious and compelling family or other considerations which make the appellant’s exclusion from the UK undesirable. I am satisfied, on the one hand, that Mr Wain’s challenge that there is no reliable evidence of the appellant’s health issues is made out, which had been the original basis of the application. However, the picture is substantially more nuanced and complex than had previously been appreciated. The sponsor was living with the appellant in a small community where she was the subject of violence from the wider paternal family (not the estranged husband himself) and where, as a result, the sponsor was living in a state of fear. In those circumstances she has explained why, (and it has not been challenged substantially), she would feel unable to live in that village. While this is not a protection claim which would otherwise give rise to considerations of internal relocation, this is a small child who, if excluded from the UK, would lose the benefit of wider family support in the UK, where financial provision is being provided by the sponsor’s siblings. The proposed setting in the UK is stable, in contrast to the arrangements in Northern Turkey, and the appellant’s best interests remain in staying with his mother. This may result in a loss of contact with his father, but I bear in mind that the father has no apparent interest in his son.
23. On the basis that the appellant meets the substance either 297((i)(e) or (f), depending on whether the appellant’s father continues to have responsibility for his upbringing, I am satisfied that the appellant does meet the substantive elements of the Immigration Rules. Going on to consider Section 117B of the 2002 Act, the maintenance of effective immigration controls is in the public interest. There is no language issue, as the appellant is too young. He is financially independent, as the sponsor’s relatives have committed to providing for him financially. These are both neutral factors. While little weight may be attached to the appellant’s private life when he only entered the UK on an ETA, the focus of this appeal is the appellant’s family life with the sponsor. There is unquestionably family life between the sponsor and the appellant, (a young toddler) who live together in Cardiff. Weighing the importance of effective immigration controls against the appellant (he entered in an ETA document, after his application to enter for the purposes of settlement was refused), the context is of the sponsor now having sole responsibility for him, having fled Northern Cyprus because of her fear of her husband’s family and the violence she suffered from them, coupled with the estranged husband’s lack of ongoing interest, and the family support which the appellant will receive in the UK. The appellant’s best interests lie in remaining with his mother in the UK, in contrast to the sponsor’s genuine concerns about what would occur if they were to remain in Northern Cyprus.
24. In conclusion, the decision to refuse leave to enter is disproportionate and in breach of the appellant’s rights under Article 8 ECHR. I re-make the appeal by allowing the appellant’s appeal. What form of leave the respondent decides to grant is a matter for her. The respondent has not consented to my considering Paragraph 298 of the Immigration Rules.

Notice of Decision
25. The appellant’s appeal succeeds. The respondent’s decision to refuse the appellant entry clearance is not upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15th September 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005137

First-tier Tribunal Nos: HU/63333/2023 LH/03952/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

ZY
(ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms J Heybroek of Counsel, instructed by Ronald Fletcher Baker LLP
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House (via CVP) on 15 July 2025

DECISION AND REASONS
Introduction
1. The appellant, who is a national of Turkey resident in the Turkish Republic of Northern Cyprus, appeals with permission against the decision of First-tier Tribunal Judge G Wilson (“the judge”) promulgated on 2 September 2024 dismissing his appeal against the respondent’s decision dated 2 November 2023 refusing his application for leave to enter the UK for the purposes of settlement.
Anonymity
2. The First-tier Tribunal made an anonymity order in respect of the appellant, who is a child. There has been no application to set aside that order. While I recognise the strong factors in favour of open justice, in the present case, I am not satisfied that it is not necessary for the appellant to be named given his young age. I therefore continue the anonymity order.
Background
3. The appellant was born in Northern Cyprus, where he currently resides, in May 2023. The appellant and both of his parents hold Turkish citizenship. His father is resident in Northern Cyprus. While his mother is also currently residing there, she holds indefinite leave to remain (“ILR”) in the UK, having moved to this country in 1995.
4. On 22 September 2023, the appellant applied for leave to enter as the non-British child of a parent who has permission to reside in the UK. That application was refused on 2 November 2023 on the basis that the respondent was not satisfied that the appellant met the requirements for leave to enter as a child under paragraph 297 of the Immigration Rules. This says:
297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal under the general grounds for refusal.
5. As those representing the appellant accept, the only provision the appellant could hope to meet on the facts of his case was subparagraph (i)(f). However, the respondent decided that there were no serious and compelling family reasons or other considerations which made the appellant’s exclusion from the UK undesirable.
The appeal to the Fiest-tier Tribunal
6. The appellant exercised his out-of-country right of appeal against the decision of 2 November 2019. The appeal proceeded on a submission-only basis because the appellant’s mother did not have the permission of the Northern Cyprus authorities to give oral evidence remotely from their territory. In the decision promulgated on 2 September 2024, the judge dismissed the appellant’s appeal. In summary, the judge held that the appellant’s best interests were to remain as a family unit with both his parents in Northern Cyprus, where they were all currently residing, and that there was no evidence that he could not obtain healthcare or an education there. The judge took into account that the appellant’s father had no leave to enter or remain in the UK and that if the appellant was to be granted leave to enter the UK, he would be separated from one parent. While the judge acknowledged that the appellant’s mother held ILR, the judge found that the difficult circumstances that she found herself in, i.e. unable to return to the UK without her child, were in large part of her own making, having made a decision to travel to Northern Cyprus to obtain IVF treatment. The judge went on to find that there were no compelling family circumstances to the case as the appellant and his parents could continue to live together in Northern Cyprus. He therefore concluded that the respondent’s decision did not amount to a disproportionate interference with Article 8 ECHR.
The appeal to the Upper Tribunal
7. The appellant sought permission to appeal to the Upper Tribunal on two grounds:
(1) The judge erred in law by trespassing on the function of the Family Court by taking on an assessment of who the appellant should live with.
(2) The judge erred in his approach to the Article 8 assessment because, contrary to the judge’s findings, it would be disproportionate to separate the appellant from his mother; the appellant’s health has been unpredictable; and contrary to what the judge found, the mother has been forced to choose between separating from her child or losing her ILR, which was a compelling circumstance under the Rules and unjustifiably harsh for the purposes of Article 8.
8. Permission to appeal was granted on both grounds by First-tier Tribunal Judge Chowdhury on 6 November 2024.
The hearing
9. I had before me the 193-page composite hearing bundle lodged by the appellant.
10. The appellant’s counsel Ms Heybroek’s oral arguments differed from the way in which they had been pleaded in the grounds of appeal on which permission had been granted. She acknowledged that those grounds, which she was not responsible for drafting, were brief. In her submissions, she placed emphasis on what she said were the judge’s speculative findings at [26] that the appellant’s mother had found herself in a difficult position in large part because of decisions she had made for herself. Ms Heybroek submitted that the judge had failed to take into account a letter from the mother’s gynaecologist dated 9 August 2023 which explained that she was unable to fly back to the UK during her pregnancy due to, first, bleeding, and then hypertension (see page 151 of the hearing bundle). Furthermore, Ms Heybroek said that despite having acknowledged at [27] that the appellant, as a child, should not be held accountable for the actions of his parents, that is exactly what the judge had done by blaming the mother for the situation she found herself in. The judge, she argued, had not approached his decision in a child- focused way. He had not properly taken into account the welfare of the appellant, including with regards to his access to healthcare in Norther Cyprus.
11. Ms Nolan, on behalf of the respondent, submitted that the judge did not trespass into the territory of the Family Court but looked at all of the circumstances of the case and gave clear reasons for deciding that both parents could look after the appellant in Northern Cyprus. Furthermore, she argued that the letter from the gynaecologist did not say that the mother was unable to fly during the entirety for her pregnancy and the judge was therefore entitled to find at [26] that there was no evidence that she was unfit to travel. Ms Nolan submitted that the judge did not blame the appellant for the circumstances that his mother found herself in as his best interests were set out as a separate consideration in the decision.
Findings – Error of Law
Ground 1: Trespassing on the function of the Family Court
12. This is not a point that was pursued by Ms Heybroek in oral submissions and likely for good reason: I do not find it to be a convincing argument. The appellant takes issue with what the judge says at [23]:
“Against this background I find that the Appellant has failed to demonstrate that should the sponsor come to the UK to preserve her ILR it would be in the Appellant’s best interests to come to the UK with the sponsor as opposed to remaining in northern [sic] Cyprus with the Appellant’s father.”
The appellant argues that the question the judge should have decided was whether it was disproportionate to exclude the appellant from the UK.
13. However, that passage must be read in the context of the decision as a whole. At [15], the judge recorded that the mother’s witness statement said that she wished to bring the appellant to the UK so “he does not need to worry about his education or his health”. The judge found that there was no objective evidence before him to prove that as a national of Turkey, the appellant would be deprived of an education or healthcare in Northern Cyprus. At [17], the judge found that the best interests of the appellant were to be cared for by both parents, and that they could do this in Northern Cyprus. The judge found that if the appellant was to travel to the UK with his mother, he would be separated from his father thereby disrupting “the optimal care environment”. At [20], the judge found that the appellant’s parents could live and work in Northern Cyprus and he reiterated that it was in the best interests of the child to live with both parents. It is against “this background” that the judge’s findings at [23] must be considered.
14. I am satisfied from reading [15] to [20] that the judge’s primary position in relation to the best interests of the appellant was that it was in his best interests to live as part of a family unit with his parents in Northern Cyprus where they could lawfully reside together. As is clear from reading the opening sentence to [23], what the judge was considering in that paragraph was an alternative scenario whereby the appellant’s mother would decide to return to the UK alone in order to preserve her ILR, in which case the appellant would have to remain in Northern Cyprus with his father. He found that she had the financial resources to visit them regularly before ending with the passage that the appellant quotes in his grounds of appeal (as set out at [12] above).
15. I am satisfied that the judge did not step into the shoes of the Family Court. As part of his assessment of the appellant’s best interests, the judge was reasonably entitled to make the finding that he did as to the best interests of the appellant – that he should remain as part of a family unit with both parents – and consider, in the alternative, what would happen if the mother instead decided to return to the UK.
16. I therefore find that Ground 1 does not disclose any error of law in the judge’s approach.
Ground 2: Error in approach to the Article 8 proportionality assessment
17. The submissions made by Ms Heybroek at the hearing fell under this ground of appeal although, as explained above, she argued it in a slightly different way to the pleaded grounds.
18. Ms Heybroek argued that the judge erred by finding that the mother’s predicament was the result of her own choices which, she submitted, was wrong for two reasons. First, the mother was unable to return to the UK while pregnant because of problems with her health as identified in her gynaecologist’s letter. Second, whatever choices the mother made, the appellant could not be blamed for them, and the focus should be on him.
19. Ms Nolan argued that the gynaecologist’s letter did not clearly state that the appellant’s mother was unable to travel throughout her pregnancy and, consequently, the judge was entitled to find at [26] that there was no evidence to support that claim. Having considered the gynaecologist’s letter, I would disagree with Ms Nolan. The letter says that the appellant’s mother:
“had bleeding in the early stages of pregnancy and was found absolutely unsuitable for travelling by plane due to hypertension that developed afterwards. As a result of close follow-up pregnancy [sic], a healthy live baby boy was born…by caesarean section. Afterwards, hypertension and recovery result of the operation [sic] were followed up and she was discharged with surgical healing.”
I am satisfied that the letter confirms that the appellant’s mother developed hypertension early on in the pregnancy and that this continued until the appellant was born by caesarean section in May 2023. As a consequence, she could not fly during her pregnancy.
20;. I find that the judge does appear to have reached his finding at [26] that the mother was not a “victim of circumstances” without having considered the letter of the gynaecologist. At [26], the judge says, “Whilst the sponsor asserts that she was advised against travel by medical professionals, I have not been directed to any medical evidence to support this”. I have some sympathy for the judge. It seems that the appellant’s representative before the First-tier Tribunal did not refer the judge to the gynaecologist’s letter and I also note that this was not referred to in the skeleton argument. Nevertheless, it was in the evidence bundle before the judge. Had he considered this evidence, there is a real chance that he may have reached a different conclusion on whether the appellant’s mother was forced to stay in Northern Cyprus until the appellant was born, rather than returning to the UK. As Ms Heybroek submitted, had the appellant been born in the UK, he would have been entitled to British citizenship.
21. Furthermore, at [27] the judge finds that the appellant, as a child, cannot be held responsible for the actions of his parent. Ms Heybroek argues that the judge in fact does the opposite: he finds in the same paragraph that the sponsor’s predicament is, in large part, one of her own making and, as a consequence, it would not be unjustifiably harsh for her to return to the UK without her son. It is difficult to tell from the way the decision is structured whether the judge does in practice blame the appellant for his mother’s decision. But what I find to be the more obvious error of law is that rather than considering the effects of the appellant’s exclusion on the appellant and his parents in a holistic manner, the judge separates this out, dealing with the mother at [27] and the appellant at [28], reaching independent conclusions on both.
22. The findings made at [27] and [28] were made in the context of the judge considering whether the appellant met the requirements of paragraph 297(i)(f) of the Rules: see [29]. Whether the appellant met the requirements of the Rules was a material aspect of the judge’s findings that the respondent’s decision did not amount to a disproportionate interference with the family’s rights under Article 8 ECHR: see [33.2].
23. For the reasons given above, I am satisfied that Ground 2 is made out and that the judge made a material error of law. His decision is therefore set aside with no findings preserved.
Disposal
24. The general principle is that cases will be retained by the Upper Tribunal for remaking subject to the exceptions set out at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. Having considered paragraph 7.2, I am satisfied that (a) neither party was deprived of a fair hearing before the First-tier Tribunal; and (b) the further fact- finding is unlikely to be extensive. That is because the appeal can proceed on a submissions-only basis with the key matter for consideration being whether the respondent’s decision has led to unjustifiably harsh consequences for the appellant. It is therefore appropriate for the Upper Tribunal to retain the case for remaking.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and is set aside with no findings preserved.
The decision will be remade at a resumed hearing in the Upper Tribunal.
Directions:
1. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 3 hours.
2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21 days prior to the remaking hearing.
3. The appellant is to file and serve a skeleton argument, no later than 14 days before the resumed hearing.
4. The Secretary of State is to file and serve a rule 24 response, if so advised, no later than 7 days before the resumed hearing.

M R Hoffman
Judge of the Upper Tribunal Immigration and Asylum Chamber
16th July 2025