UI-2024-005501 & Ors.

• Status of case: Unreported
• Hearing date: 19 Jun 2025
• Promulgation date: 4 Sep 2025
• Publication date: 19 Sep 2025
• Last updated on: 19 Sep 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005501
UI-2024-005502
UI-2024-005503
UI-2024-005504


First-tier Tribunal No:
HU/62652/2023, LH/04179/2024
HU/62651/2023, LH/04177/2024
HU/62650/2023, LH/04176/2024
HU/62649/2023, LH/04175/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 September 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

MARY NJERIE KIARIE
JM
JKM
JLKM
(NO ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr. E. Fripp, Counsel
For the Respondent: Ms Clelwy, Senior Home Office Presenting Officer

Heard at Field House on 19 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Second, Third and Fourth Appellants are granted anonymity.

No-one shall publish or reveal any information, including the names or address of any of the Appellants, likely to lead members of the public to identify the anonymised minors. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS
1. The first appellant is a national of Kenya, date of birth is 31 August 1983.
2. The second, third and fourth appellants are the children of the first appellant, they are all minors.
3. The appeals of the four appellants are linked.
4. In a decision dated 8 April 2025, we found that there was an error of law in the decision of the First-tier Tribunal (FtT) (Judge Wyman) dated 4 September 2024, in dismissing the appellants’ appeals against the decisions of the respondent to refuse their applications for entry clearance on human rights grounds. The error of law decision is annexed to the decision we make below.
5. There was no application made for an anonymity order. We have anonymised the second to fourth appellant as they are minor children. This is in line with paras. 15 and 33 of Guidance Note 2022 No 2: Anonymity Orders and Hearings in private. We have weighed the need for open justice against the interests of the children.
Factual Background
6. The background to the appeal is set out in the documents. We summarise the facts below.
7. The first appellant married Henry Maina (“the sponsor”) on 7 July 2020. Their marriage took place in the UK. After the marriage, they lived together in the UK for four weeks before the first appellant returned to Kenya.
8. The sponsor came to the UK in 1995 with entry clearance as a student. He did various short term computer courses between 1995-1999 and in 1999 embarked on his master’s degree in computer science at Oxford Brooks University. He successfully completed his Master’s degree and graduated in 2001 after which his student visa expired. He became an overstayer. In 2015, he applied for and was granted leave to remain on the basis of his residence in the UK for 20 years.
9. The sponsor was granted limited leave to remain in May 2016. He will become eligible to apply for indefinite leave to remain in May 2026 after completing 10 years lawful residence under the private life route.
10. The sponsor is the biological father of the fourth appellant, and the stepfather of the second and third appellants. He is named as their father on their birth certificate, having adopted them in Kenya.
11. The father of JM and JKM is RM. Ms Mary Njeri Kiarie was not married to RM. Ms Njeri Kiarie separated from RM in 2014.
Procedural History
12. On 4 August 2023 the appellants applied for entry clearance to join the sponsor in the UK. The appellants accepted they could not meet the immigration rules owing to the sponsor’s status in the UK. As a result, they relied on Paragraphs GEN 3.1-3.3 of Appendix FM and argued that there were exceptional circumstances or unjustifiably harsh consequences for the first appellant, the child appellants and the sponsor in refusing entry clearance.
13. The Judge that considered the appellant’s appeals found, with reference to GEN 3.2 of Appendix FM, there were no exceptional circumstances which would render refusal a breach of Article 8 ECHR (§36 decision).
14. On 25 September 2024 the appellants made an application for permission to appeal against the decision of the FtT. This application was refused by FtT Judge O’Garro in a decision dated 30 October 2024. On 18 November 2024 the appellants renewed their applications for permission to appeal the decision of the Upper Tribunal. Permission to appeal was granted by Upper Tribunal Judge Sheridan in a decision dated 10 January 2025.
15. The matter came before us in an oral hearing on 13 March 2025. In that hearing, Ms Ahmed, Senior Home Office Presenting officer accepted that the best interests of the minor children had not been considered and that this was a material error of law. Mr Fripp, for the Appellants, accepted at that hearing that there was no challenge to any of the findings of fact in the FtT decision, making it clear that the case was about proportionality.
16. Whilst we had wanted to proceed to hear the appeal on 13 March 2025 substantively. Mr Fripp applied for an adjournment. The Appellants had not complied with the standard directions issued by the Tribunal. Applying the overriding objective with reference to Rule 2 of the Tribunal (Upper Tribunal) Procedure Rules 2008 we concluded that it would be fair and just to grant an adjournment. We set out directions asking that there be an explanation in writing as to why the Appellants had not complied with directions. Further evidence and a skeleton argument was received, with an explanation for delay 10 April 2025.
17. In our decision dated 8 April 2025 we set aside the decision on the basis that there had been a material error of law in respect of the assessment of proportionality as the best interests of the minor children had not been considered. This decision was set aside, subject to findings of fact that were preserved as set out in §12 of our error of law decision. We set these out here again for ease of reference:
i. The marriage is genuine (§27 decision).
ii. The first appellant cannot meet E-ECP 2.1 owing to Mr Maina’s status (§17, §27 decision).
iii. The refusal letter accepted that the first appellant met all other eligibility requirements under the rules, including the English language and financial requirements (§18 decision).
iv. Article 8 ECHR is engaged, the interference with Article 8 ECHR is in accordance with the law and necessary, the question to be addressed is proportionality (§26 decision).
v. The sponsor spoke to his wife and children daily by video calls. He pays for the school fees of the older children, he sends money to his wife for rent and expenses. He has no other children. He is a software engineer in the UK (§22 decision).
vi. The sponsor has parents and a sister in Kenya. He has aunts and cousins in the UK (§24 decision).
vii. If the sponsor left the UK to join his family in Kenya he would lose his route to settlement in the UK. He has held leave continuously since 2016 and will qualify for settlement in 2026 (§28, §30 decision).
viii. The sponsor would be able to obtain employment in Kenya. As a Kenyan national, he would have permission to work, he has a Master’s degree and many years of work experience. He may not get a job at the same level, he has not provided evidence to show there are no jobs in the field of computer software engineering there (§29 decision).
ix. The appellants have to show that there are exceptional circumstances which would amount to unjustifiably harsh consequences as a result of refusal of their claim (§31 decision).
x. The first appellant and the sponsor knew that he did not have settlement when they married. The sponsor has travelled to Kenya to see the first appellant. She can live there with the children who can attend school there. They are in regular contact by modern means of communication (§32 decision).
xi. S.117B of the Nationality, Immigration and Asylum Act 2002 refers to maintenance of effective immigration control being in the public interest.
xii. In 2026, when the sponsor qualifies for settlement, JM will be 18 years old so will not qualify for entry clearance as a child. He may leave home at that age, he could apply for a visit visa or student visa if he wanted to (§35 decision).
18. We also made clear that the matter would be reheard in respect of the issue of proportionately, with reference to the best interests of the minor children.
19. The matter was as such re-listed on 19 June 2025 before us to be re-heard.
Submissions and Evidence
20. At the hearing before us we checked the documents. We had the composite bundle from the error of law hearing which ran to 1126 pages. We also had a supplementary bundle which ran to 15 pages. On the morning of the hearing, we also received further written submissions from Mr Fripp. We have had regard to all of the evidence and submissions in the bundles, as well as the oral evidence which we heard.
21. Ms Clewley confirmed that there were no credibility issues. It was agreed cross examination of the sponsor would be limited in the light of the preserved findings. She indicated to us that the areas of questioning would be around the wellbeing and welfare of the minor children.
22. Mr Fripp at the outset of the hearing reminded us of the Supreme Court decision in CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32 which said the following:
54. … the FTT is subject to a duty under section 6 of the HRA to decide an appeal in a way which is compatible with Convention rights, which in the case of a child relying on rights under article 8 requires it to treat the interests of the child as a primary consideration. We consider the relationship between these three duties at paras 59-69 below; but the relevant points to make here are that where the FTT determines an appeal it becomes the relevant decision-maker, superseding the Secretary of State, and if the FTT does not refer to or seek to apply section 55 in its own decision-making, it has not failed to act in accordance with the law so far as its own decision is concerned. Its legal duty is to comply with article 8, including by having regard to the best interests of the child as a primary consideration. If the FTT has done that and, as in the present case, has not committed any other error of law, then its decision (which becomes the relevant determinative decision affecting an appellant's Convention rights) is "in accordance with the law" within the meaning of article 8(2) and cannot be impugned on the basis that it is not.
23. The sponsor adopted his two witness statements, dated 10 May 2024 and 8 April 2025.
24. In answer to questions put in cross examination the sponsor said that this year JM was at a crucial stage of his education with his secondary school exams to be sat in November or December 2025. He also stated that it was an important year for JKM with his final primary level exams.
25. Mr Fripp asked questions in re-examination of the sponsor. In response to these questions he confirmed that the plan for the children if they were to be granted entry clearance was that they would finish their exams in Kenya and they would then come to the UK following these to continue with the remainder of their education. He further said that he had visited Croydon Council and they had said that nothing could be done for the children’s education until the children were in the UK.
26. We then heard submissions from both parties. We will summarise those submissions below.
27. Ms Clewley submitted that the best interests of the minor children were a primary consideration but not paramount. All of the children were physically well, their needs were being met. The statements showed that the children were distressed by the immigration process and the father was making a choice not to live with them. The two older children had been informed that they would not be carrying on with their education this year, when this in fact did not occur the parents decided to stop telling them about the immigration process and this had resulted in an improvement in their wellbeing. The children missed their father but a choice was being made owing to the father's better economic prospects here. The sponsor had a right to live and work in Kenya. The children live with their mother, they have family in Kenya, which includes their grandparents who see them often. They stay with the sponsor's mother during the school holidays. They have family support in Kenya. When considering the impact of the sponsor not being with the children, it is said that this includes him not being able to take the children to watch football, the children being asked why they do not live together and the children not being allowed to fully develop their relationship with their father by living with him. It was emphasised again that a choice was being made by the sponsor and that he could relocate. Further, it was open to the sponsor to visit and he had done so on special occasions.
28. Whilst the sponsor asserted that the separation was deeply distressing, there was no evidence to support this. The children were doing well in their education. The father had not lived with the children. The family could have never had an expectation of living here, the children were given unreasonable hope by their parents. The status quo could be maintained by the mother remaining with the children and through their wider family in Kenya. The older boys were at crucial stage of their education. They were completing GCSE and A level equivalent examinations. It was not in the best interests of the children to disrupt these examinations and the sponsor had stated that they would not be bought here until those examinations were complete.
29. JM had hobbies and interests in Kenya, such as football and drawing. JM attends boarding school and he is not living with the family when at boarding school. He is only home during the holidays. As the previous judge stated, one could not predict what his next steps would be i.e., whether he would leave home or apply for a visit visa to see his family in the UK or a student visa to study in the UK.
30. It was also submitted that whilst the sponsor arrived in 1995 and held leave until 2001. he had overstayed since 2001. He was then next granted leave in 2016. Given his immigration history, it was assumed that his application based on the 20 year residence route must have been made in 2015. He would be eligible to apply for indefinite leave to remain in May 2026. It is open to the family to make an application under the immigration rules when the sponsor holds indefinite leave to remain.
31. Mr Fripp relied on his skeleton argument and written submissions.
32. Mr Fripp submitted that JM will turn 18 next year. He said that the sponsor would be able to make an ILR application on 24 May 2026, though in an answer to our questions he accepted that an application could be made a month before so in April 2026. We note that this is confirmed in the UKVI Long Residence Guidance, which is a publicly available Policy Guidance document. Mr Fripp submitted that the reason that the applications were made were to bring the family together as soon as possible and to prevent last minute applications which were not in the best interests of the child, nor was further delay. He submitted that the only aspect of the rule that was not met was that the sponsor did not have ILR. He referred to the fact that the children could be ‘aged out’ if an application was made at this stage.
33. He accepted before us that there was no guarantee that the sponsor would be granted ILR, but that he would be entitled to apply from May 2026. The finding of Judge Wyman at §30 of his decision that had been preserved was that ‘The Sponsor has had continuous leave in the UK since 2016 and it is likely that he will qualify for indefinite leave in 2026’ (emphasis added)1.
34. He highlighted Article 23(1) International Covenant on Civil and Political Rights 1966 (‘ICCPR’) which provides that ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State’, Khatoon v ECO Islamabad [2013] EWHC 972, ZH (Tanzania) v SSHD [2011] UKSC 4, MK (best interests of child) India [2011] UKUT 475 (IAC), Mundeba (s.55 and para 297(i) (f)) DRC [2013] UKUT 88 (IAC), Agyarko and Ikuga, R (on the applications of) v SSHD [2017] UKSC 11, Hesham Ali (Iraq) v SSHD [2016] UKSC 60, as well as other authorities as set out in his skeleton argument.
35. The marriage was genuine, the relationship had been in existence since 2018, there were three children in the relationship. The older children regarded the sponsor as their father. The sponsor had 30 years employment history in the UK, he had pension entitlement here. He supported his family in Kenya from his income here. Whilst it was accepted that it was not impossible for him to relocate, it would take little empathy to accept that it would be difficult for him. It would impact on his ability to support his family and that was if he was even able to gain work in Kenya.
36. The situation surrounding JM and his age was stressful. He was anticipating the risk of being separated from his family as a young adult. JKM had a strong relationship with JM and it would be negative for him to be separated from his brother. The older children intended to finish their exams and then unite with the family in the UK should the appeal be allowed. The children had set out their views in witness statements and their own wishes were important. JLKM was at a formative stage in her years of development and it was acknowledged that children were very focused on their parents at this stage. Her best interests were being able to live with both parents and to have direct contact frequently with her father. He accepted that the immediate needs of the children were not at threat and were being met by their mother. He submitted that the best interests of the children pointed to being with their father in the UK. The children's best interests would be served by being with both of their parents where possible. The siblings should be together too. The financial support that the children got from their father in the UK was important to consider.
37. The children should not be sanctioned for the immigration history of the parent. This was important in looking at the overstay of the sponsor. The first appellant, who was the sponsor's wife, had had full regard for UK law. She came to the UK on a marriage visa application and married here in July 2020. She returned in August 2020. She then made a clearance application.
38. It was accepted that the choice that the sponsor was making not to live in Kenya was relevant as a consideration under Article 8 ECHR. His reasons for this had been explained in his witness statement. This factor was outweighed by other factors in this case. This was particularly so having regard to the best interests of the minor children.
Conclusions
39. We decide this appear with reference to appendix FM GEN 3.2 and the test of unjustifiably harsh consequences. We remind ourselves of Agyarko and Ikuga, R (on the applications of) v SSHD [2017] UKSC 11 which held at para. 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": see para 19 above.”
40. In respect of the best interests of the minor children, which is a primary consideration in this appeal, the position was summarised in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at para 10:
"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration; (3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."
41. We will not recite the rest of the law we were referred to. It is set out at length in Mr Fripp’s written arguments. We have had regard to it all.
42. As was found by the FtT, Article 8 ECHR is engaged, the interference with Article 8 ECHR is in accordance with the law and necessary, the question to be addressed is proportionality.
43. We start by looking at the best interests of the minor children, this being a primary consideration and an integral part of the proportionality assessment. We will first look at the general position of all of the children and then take each individual child in turn to consider their individual circumstances.
44. The second and third appellants are children from the first appellant’s previous relationship. They do not have contact with their biological father. The fourth appellant is the biological child of the first appellant and sponsor. The sponsor has parental responsibility for all the children and is named as the father of two older children on their birth certificates.
45. JM is 17 years old. We have considered his own witness statements and the statements of his parents. His parents had previously told him about the application and appeal process and he says in his statement he was adversely impacted by the dismissal by the FtT with this impacting his focus in school. His parents are no longer providing updates and he says his performance has improved. He is in boarding school and he says when he started here he struggled to be away from his brother JKM. He comes home in school holidays his mother states. JLKM is excited when he comes home. He wishes to be in the UK with his mother, siblings and father. He does not want to be separated from his siblings. He has hobbies in Kenya, such as football and drawing. He feels bad for his mother.
46. JKM is 15 years old. We have considered his own witness statements and the statements of his parents. He too has disclosed feeling stressed and upset when his parents informed him about the negative decision and feeling upset about JM being impacted by this too. His studies are said to have improved since he has been told by his parents not to worry about the immigration process. He wishes to live with his dad, to speak to him in person as opposed to over the phone. He wants to live with JM who helps him with his homework and who he enjoys spending time with and who supports him. He too has hobbies in Kenya, such as football, drawing and writing. He tries to avoid thinking about the situation of separation. He is worried about his mother providing care for all the children.
47. JLKM is 4 years old. Her brothers state they are very close to her. They also say she misses the sponsor and wants to call him and see him at the school gates. She is said to be upset at her father’s absence. The family reassure her through this. The parents wish for the sponsor to be physically present for her, for example to able to pick and collect her from school.
48. As was highlighted by Ms Clewley, we note that there is no medical evidence nor any evidence from the children’s teachers or schools.
49. It is unfortunate that both JM and JKM have been given hope of joining their father in the UK by their parents when the rules are drafted in the form that they are. The sponsor and first appellant will have received legal advice about the application process and it seems from their statements they were fully aware of the position. The children cannot be blamed for this. They are not now being kept informed of the process and are doing better in school.
50. We note that the applications for entry clearance were made in August 2023. This is some three years after the marriage and some two and a half years after JLKM was born. It is said in witness statements that it was known that the family would not meet the rules owing to the sponsor’s status, but the application was made because of JLKM asking more about her father and the pressing need to be together as a family.
51. It was accepted in submissions, and it appears to be the case from the evidence before us, that the children’s immediate and day-to-day needs are being met in Kenya by their mother. She has been a single mother to the two eldest children since 2014. She has been the only consistently physically present parent in JKLM’s life.
52. The sponsor provides for all of his children and his wife financially, through his employment in the UK. The money he sends covers their accommodation costs and expenses, as well as school fees. We have seen the money transfer receipts in the bundle. It is in the best interests of the minor children that the sponsor is able to provide for them.
53. The FtT found that the sponsor would be able to obtain work in Kenya, he would have permission to work there, he has a Master’s degree and lots of work experience, he has not shown there are no jobs in his field there. Whilst Mr Fripp referred to the sponsor’s previous witness statement dated 10 May 2024 on this issue, this was evidence before the FtT. We have no further evidence before us on this issue. There is nothing before us which indicates that employment in Kenya would prevent him from providing for his family in the way that he is currently able to do so should he choose to return.
54. The sponsor speaks to the appellants on a daily basis by video calls. He has also travelled to Kenya to see the appellants and maintain family life. We have seen the photographs provided in the bundle and the text messages between the first appellant and sponsor. We note that in his most recent statement it is said he has not been able to travel since February 2023 as he has significant sums on the visa application process and is supporting his children and wife through money transfers. It is appreciated that the children would like physical contact day to day. It appears however that they have formed and sustained a strong bond with their father by modern means of communication which has allowed for daily calls.
55. The children have only ever lived in Kenya. They have a home there. They are familiar with the customs and culture in the country having grown up there. They are only familiar with the education system in Kenya. Their friends are in Kenya. They have interests and hobbies there.
56. As was confirmed in oral evidence, JM is in the final year of his A-level equivalent/senior school education. His parents wish for him, and as such must consider it is in his best interests to, complete his studies and his examinations in Kenya which are to be completed in November / December 2025. He is said to be doing well in school. His education is clearly appreciated by his family to be important. It is in his best interests that his education is not disrupted and he remains in Kenya.
57. We have regard to the fact that JM is in boarding school and is away from his family for significant periods of the year coming home in the holidays.
58. Similarly for JKM, he is in the final year of his GCSE equivalent examinations / primary school education. His parents also believe it is in his best interests to complete his education and sit his exams in Kenya in November/December 2025. We are of the view that remaining in Kenya is in his best interests. It is in his best interests he remains with his brother given their close relationship too.
59. It is in both JM and JKM’s best interests that their mother remains with them whilst they face these examinations and are at this crucial point in their education. It is in JKLM’s best interests that she remains with her mother and that her siblings as she is accustomed to and given the strength of those relationships as set out in evidence. As was submitted to us by Mr Fripp, the unity of the siblings is important.
60. JKLM, on the evidence, wishes her father present physically (as do the other children). However, it would be more distressing for her to be separated from her brothers and mother, with whom she has lived her entire life.
61. The children discuss having an aunt and cousin in the UK. They have not met the cousin but would like to do so. The children have maternal grandparents who live nearby to them in Kenya. They also have an aunt and two uncles in Kenya. They see their wider family once a week. Their paternal grandmother and aunt also lives in Kenya. They see their paternal grandmother in school holidays and sometimes the paternal aunt too. They clearly have close family ties in Kenya. There are witness statements from the maternal grandparents who says they assist the first appellant with child care. Their paternal grandmother says in her statement she also travels to see the children when she can, in addition to their holiday visit to her. It is in their best interests that they are around wider family, who they are familiar with and who they spend time with. This is particularly so whilst the elder children go through their examinations.
62. We have heard and read the evidence. The children have never lived with their father, bar on holidays. It would no doubt assist the children further for the sponsor to be physically present and for the family to be together. However, as was previously found by the FtT he can visit them going forward and he can maintain his relationships, as he has done to date, by modern means of communication. He has supported his children in this way for many years now, they speak to him twice a day and they are very close to him and the eldest are doing well in school. Moreover, as was accepted he could relocate to Kenya to be with his children and wife. Whilst it is submitted that this would pose some difficulties for the sponsor, it has not been shown by evidence that this would be disproportionate or unjustifiably harsh for him or for the appellants.
63. We turn to look at other factors. We start by looking at factors for the appellants and sponsor:
a. The first appellant and sponsor have a genuine and subsisting marriage. They have been in a relationship since 2018.
b. The first appellant travelled to the UK on a visa which allowed her to marry the sponsor. She returned to Kenya after the marriage took place and then made an entry clearance application.
c. The sponsor has been in the UK since 1995. He has limited leave to remain in the UK until 24 May 2026. He has held this leave since May 2016 having been found to meet the 20 year rule on long residence. He will be eligible to apply for ILR from late April 2026 and it is likely, though not certain, that this application will be granted.
d. The sponsor is employed in the UK as a software engineer. He has been employed in his current role since June 2022. His income is £53,718.91 per annum. He has a pension here and has paid national insurance.
e. If the sponsor left the UK, this could impact on this entitlement to ILR in 2026.
f. The appellants meet most of the requirements of the rules for entry clearance, this includes the financial requirements, English language requirements, relationship requirements and suitability requirements.
g. We note that the appellants can speak English, they will be financially independent; see s117B(2)(3) of the Nationality, Immigration and Asylum Act 2002.
64. We now move on to look at the factors against the appellants and sponsor:
a. The first appellant and sponsor have maintained their relationships and marriage at a distance, through modern means of communication for several years. They could have had no expectation that the first appellant would have been able to join the sponsor given his status and the requirements of the immigration rules. Indeed, they acknowledge this was their understanding of the law in their statements.
b. As we explain above, it has been found the sponsor could obtain work in Kenya given his nationality, qualifications and experience. It has not been shown this would be difficult or that his income would not provide for himself and his family.
c. Aside from his work in the UK, we have not seen other significant evidence of his other ties in the UK. His family life is with the appellants, who are in Kenya. He has wider family in Kenya. It is in the best interests of the children at present to remain in Kenya, for their education and future.
d. The sponsor did overstay between 2001 and 2016.
e. Whether the Sponsor’s entitlement to ILR would be impacted would be dependent on the decisions that he makes. We note that it is accepted he would be eligible to apply for ILR in April 2026 and we take judicial notice that some periods of absences are permitted under the immigration rules for those that apply for ILR (see Appendix Continuous Residence of the Rules). When he entered his relationship in 2018 and when he married in 2020, he was aware of his status and the impact this would have on his ability to live with his family if he chose to remain here. He must have also been aware of the impact there would be on his status if he chose to leave to live with them. We do not find that this issue makes the interference with family life or his private life in the UK disproportionate having regard to these matters.
f. The sponsor does not hold ILR and as such the appellants do not meet the immigration status requirement of the rules. He is eligible for apply for ILR in late April 2026, and it is likely that he will be granted ILR. There is of course no guarantee of this and there has not been evidence submitted which allows the respondent to assess whether the rules for ILR are certain to be met. Whilst this is the only aspect of the rules they do not meet, we remind ourselves of the decision of Stanley Burton LJ in Miah & Ors v Secretary of State for the Home Department [2012] EWCA Civ 261 which held as follows,
25. …A rule is a rule. The considerations to which Lord Bingham referred in Huang require rules to be treated as such. Moreover, once an apparently bright-line rule is regarded as subject to a Near-Miss penumbra, and a decision is made in favour of a near-miss applicant on that basis, another applicant will appear claiming to be a near miss to that near miss. There would be a steep slope away from predictable rules, the efficacy and utility of which would be undermined.
26. For these reasons, I would dismiss the appeal in relation to the Near-Miss argument. In my judgment, there is no Near-Miss principle applicable to the Immigration Rules. The Secretary of State, and on appeal the Tribunal, must assess the strength of an Article 8 claim, but the requirements of immigration control is not weakened by the degree of non-compliance with the Immigration Rules.
g. The appellants cannot meet the rules owing to the sponsor’s status. The rules show where the public interest lies. As per s117B(1) of the nationality, Immigration and Asylum Act 2002 the maintenance of effective immigration control is in the public interest.
h. The family can make an application when the sponsor obtains ILR . The eldest child could make an application before he turns 18. Whilst Mr Fripp accepted this he said that he could ‘age out’, we take judicial notice that the Respondent’s position is and has long been that ‘where a child has reached their 18th birthday after the date of application but before the date of decision, [the decision maker] must assess the application as if the applicant was still under 18’2. He could alternatively make arguments that his application should be allowed under Article 8 ECHR, based on his circumstances at the time.
65. We appreciate this decision will be disappointing for the appellants and sponsor. However, given all of the above we find that the best interests of the children are served by remaining in Kenya for the reasons we have set out. We appreciate that the impact of this decision is that the appellants will be separated from the sponsor or the sponsor will have to leave the UK to be with the appellants. Having regard to and balancing all factors which have been argued before us, we do not consider that it has been shown (on the evidence placed before us) that either of these scenarios would result in unjustifiably harsh consequences for the appellants or the sponsor, such that the refusal of the application would not be proportionate.

Notice of Decision
66. The decision of First-tier Tribunal involved the making of an error of law and is set aside.
67. We remake the decision, dismissing the appeal on human rights grounds.


P. Solanki

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 July 2025

Annex – Error of Law Decision

Before

UPPER TRIBUNAL JUDGE MCWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE SOLANKI

Between

MARY NJERIE KIARIE
JM
JKM
JLKM
(NO ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr. E. Fripp, Counsel
For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 13 March 2025


DECISION AND REASONS
1. The first appellant is a national of Kenya, date of birth is 31 August 1983.
2. The second, third and fourth appellants are the children of the first appellant. They are all nationals of Kenya.
3. The appeals of the four appellants are linked.
4. The issue for us is whether the First-tier Tribunal (FtT) (Judge Wyman) erred in law in his decision dated 4 September 2024, when dismissing the appellants’ appeals against the decisions of the respondent to refuse their applications for entry clearance on human rights grounds.

Factual Background
5. The background to the appeal is set out in the documents. We summarise the facts below.
6. The first appellant married Henry Maina (“the sponsor”) on 7 July 2020. Their marriage took place in the UK. After the marriage, they lived together in the UK for four weeks before the first appellant returned to Kenya.
7. The sponsor came to the UK in 1995 with entry clearance as a student. He did various short term computer courses between 1995-1999 and in 1999 embarked on his master’s degree in computer science at Oxford Brooks University. He successfully completed his Master’s degree and graduated in 2001 after which his student visa expired. He became an overstayer. In 2015, he applied for and was granted leave to remain on the basis of his residence in the UK for 20 years.
8. The sponsor was granted limited leave to remain in May 2016. He will become eligible to apply for indefinite leave to remain in May 2026 after completing 10 years lawful residence under the private life route.
9. The sponsor is the biological father of the fourth appellant, JKLM and the stepfather of JM and JKM.
10. The father of JM and JKM is Mr RM. Ms Mary Njeri Kiarie was not married to RM. Ms Njeri Kiarie separated from RM in 2014.

Procedural History
11. On 4 August 2023 the appellants applied for entry clearance to join the sponsor in the UK. The appellants accepted they could not meet the immigration rules owing to the sponsor’s status in the UK. As a result, they relied on Paragraphs GEN 3.1-3.3 of Appendix FM and argued that there were exceptional circumstances or unjustifiably harsh consequences for the first appellant, the child appellants and the sponsor in refusing entry clearance.
12. In a decision dated 4 September 2024 the FtT dismissed the appeal. In doing so the judge made the following findings:
i. The marriage is genuine (§27 decision).
ii. The first appellant cannot meet E-ECP 2.1 owing to Mr Maina’s status (§17, §27 decision).
iii. The refusal letter accepted that the first appellant met all other eligibility requirements under the rules, including the English language and financial requirements (§18 decision).
iv. Article 8 ECHR is engaged, the interference with Article 8 ECHR is in accordance with the law and necessary, the question to be addressed is proportionality (§26 decision).
v. The sponsor spoke to his wife and children daily by video calls. He pays for the school fees of the older children, he sends money to his wife for rent and expenses. He has no other children. He is a software engineer in the UK (§22 decision).
vi. The sponsor has parents and a sister in Kenya. He has aunts and cousins in the UK (§24 decision).
vii. If the sponsor left the UK to join his family in Kenya he would lose his route to settlement in the UK. He has held leave continuously since 2016 and will qualify for settlement in 2026 (§28, §30 decision).
viii. The sponsor would be able to obtain employment in Kenya. As a Kenyan national, he would have permission to work, he has a Master’s degree and many years of work experience. He may not get a job at the same level, he has not provided evidence to show there are no jobs in the field of computer software engineering there (§29 decision).
ix. The appellants have to show that there are exceptional circumstances which would amount to unjustifiably harsh consequences as a result of refusal of their claim (§31 decision).
x. The first appellant and the sponsor knew that he did not have settlement when they married. The sponsor has travelled to Kenya to see the first appellant. She can live there with the children who can attend school there. They are in regular contact by modern means of communication (§32 decision).
xi. S.117B of the Nationality, Immigration and Asylum Act 2002 refers to maintenance of effective immigration control being in the public interest.
xii. In 2026, when the sponsor qualifies for settlement, JM will be 18 years old so will not qualify for entry clearance as a child. He may leave home at that age, he could apply for a visit visa or student visa if he wanted to (§35 decision).
13. Judge Wyman concluded, based upon the above, with reference to GEN 3.2 of Appendix FM, there were no exceptional circumstances which would render refusal a breach of Article 8 ECHR (§36 decision).
14. On 25 September 2024 the appellants made an application for permission to appeal against the decision of the FtT. This application was refused by FtT Judge O’Garro in a decision dated 30 October 2024.
15. On 18 November 2024 the appellants renewed their applications for permission to appeal the decision of the Upper Tribunal.
16. The grounds of appeal can be summarised as follows (reference to paragraph numbers below relate to paragraph numbers in the original grounds of appeal as opposed to the renewed grounds of appeal):
i. The appeal was pursued under Appendix FM GEN 3.2 of the Rules owing to the sponsor’s status (§2, §5(v), §7(i) grounds).
ii. The FtT accepted the factual background and found Article 8 ECHR was engaged and that the question in the appeal was proportionality (§3 grounds).
iii. The FtT Judge incorrectly referred to insurmountable obstacles which is not an applicable test in entry clearance cases (§5(i) grounds).
iv. Unjustifiably harsh consequences has been treated by the FtT as a literal test, contrary to the decision in R (Agyarko) v SSHD [2017] UKSC 11 (§5(ii-iii) grounds).
v. The FtT approached public interest considerations incorrectly (§5(iv) grounds).
vi. The FtT failed to consider that the sponsor will be eligible for ILR in May 2026 when the second appellant will be 18 and the public interest in refusing entry clearance in a case where all appellants will be able to enter in 2026, bar the second appellant (§7(ii) (vi) grounds).
vii. The best interests of the children are not considered anywhere in the FtT decision with reference to s55 of the Borders Citizenship and Immigration Act 2009 and GEN 3.3 of Appendix FM of the Rules (§7(iii) grounds).
viii. There is no reason given by the FtT for not attaching weight to the sponsor’s time, employment, community ties in the UK (§7(vii) grounds) or to the fact that the first appellant entered the UK legally to marry and left as per her visa to make an entry clearance application (§7(viii) grounds).
17. Permission to appeal was granted by Upper Tribunal Judge Sheridan in a decision dated 10 January 2025. The decision reads as follows:

1. After stating (in paragraph 26) that proportionality was the key question, the judge identified (in paragraphs 26 – 35) considerations relevant to proportionality before deciding that the balance fell in favour of the respondent (in paragraph 36). Nowhere in paragraphs 26 – 35 is there a reference to the best interests of the second, third and fourth appellants, all of whom were under 18. Arguably, this indicates that the judge failed to take their best interests into consideration and treat those interests as a primary consideration in the proportionality assessment.
2. I do not restrict the grounds that can be pursued.

Submissions of the parties at the hearing
18. The matter came before us for an error of law oral hearing on 13 March 2025.
19. Ms Ahmed advised at the start of the hearing that she was making a partial concession. This was based on paragraph 7(iii) of the grounds of appeal, i.e., the best interests of the minor children had not been considered. She indicated that she intended to oppose the appeal on the other grounds advanced. However, Ms Ahmed sensibly accepted that this single omission was a material error of law.
20. We agreed with Ms Ahmed that the failure of the FtT to consider the best interests of the minor children in this appeal, who include two step-children of the sponsor one biological child, is a material error of law. The best interests of the children are not determinative, but they are clearly an important factor in the proportionality assessment. Whilst s55 of the Borders Citizenship and Immigration Act 2009 does not apply to children who are outside of the UK, the statutory guidance issued under this provision is clear that the spirit of the duty must be adhered to. We remind ourselves of the decisions in T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483(IAC) and Mundeba (s.55 and para 297(i)(f)) [2013]UKUT 00088.
21. We advised the parties that our provisional view was that the decision of the FtT dismissing the appeal on human rights grounds be set aside. Given this error, we did not see the need to consider the other grounds advanced. We explained that given the narrow issues that remained in this appeal we could go on to remake the decision the same day and that it was appropriate for the proceedings to be retained in the Upper Tribunal.
22. We highlighted that there was no challenge to any findings of fact in the FtT decision. Mr Fripp agreed with this, making clear that the case was about proportionality. The appellants had served no further evidence nor made any Rule 15(2A) application and the directions were clear that the Tribunal could go on to remake the decision at the hearing.
23. Mr Fripp asked for an adjournment. In support of this application he said that the FtT had live evidence, there was no record of evidence from the FtT, time had passed and the youngest appellant was now speaking and the children were developing, the appellants were privately funding the appeal and there was no Rule 24 Reply from the Respondent. He then said at the very least he would wish to call the sponsor to give evidence.
24. We did not consider the reasons advanced to be good reasons for seeking an adjournment given the unchallenged findings of fact and the directions issued by the Tribunal in this appeal (which are not reliant on a Rule 24 Reply being served).
25. Ms Ahmed however did not oppose the request to adjourn. Her position was that if the sponsor was to be called she would not know what he had to say now without sight of a further witness statement and this would make cross examination difficult.
26. Given the difficulties Ms Ahmed said she would be in, and the interests of justice, we conceded to the application to adjourn. We gave the following directions:
1. The appellant’s solicitors have until 20 March 2025 to explain in writing why there had been non-compliance with standard directions and why the Tribunal should not make a costs order against them in the circumstances.
2. Any further witness statements from Mr Maina and the appellants are to be served by 8 April 2025.
3. The appellants have until 8 April 2025 to serve a skeleton argument, if so advised.
27. The directions were made in open court and the timing of the promulgation of this decision does not impact upon them, indeed this was made clear to all parties in the hearing. Mr Fripp sought a listing date. A date of 6 May 2025 was provided, with the parties being advised this would not be before the panel but just before Upper Tribunal Judge (UTJ) McWilliam. Unfortunately, the listing on 6 May 2025 is no longer a date UTJ McWilliam is available. As such, this matter is to be listed on the first available date convenient to UTJ McWilliam and counsel for the appellants, Mr Fripp.


Notice of Decision
28. The decision of Judge Wyman dismissing the appeal involved the making of an error of law and is set aside, subject to the findings of fact set out at §12 of this decision being preserved. The matter will be reheard in respect of the issue of proportionately, with reference to the best interests of the minor children.
29. The directions set out at §§26-27 above stand.
30. The decision will be remade in the Upper Tribunal with a time estimate of three hours. No interpreter is required.


P. Solanki

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber


8 April 2025