Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005793
First-tier Tribunal No: HU/51259/2024
IA/01070/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th February 2026

Before

UPPER TRIBUNAL JUDGE LANE

Between

ZAHRAA ANWAR ABDULQADER AL-M ADHWAHI
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr O'Muirigh
For the Respondent: Ms Arif, Senior Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 26 January 2026

DECISION AND REASONS
1. The appellant is a female citizen of Yemen. She appealed to the First-tier Tribunal against a decision of the Entry Clearance Officer refusing her leave to enter as the claimed spouse of Anwar Mahamed Qasem Al-Madhwahi (the sponsor). The First-tier Tribunal dismissed her appeal and she now appeals to the Upper Tribunal.
2. The appeal to the First-tier Tribunal was brought on human rights grounds only (Article 8 ECHR). The sponsor left Yemen in 2013 and spent eight years travelling through Europe. He lived in Greece in 2017 before he left to live in Sweden where he unsuccessfully claimed international protection. He returned to Greece and then travelled to Ireland. The appellant and sponsor married by proxy in February 2018 and the couple met later at a further ceremony in Jordan in October 2018.
3. When an applicant and United Kingdom refugee sponsor are married, the (now suspended) Appendix Family Reunion (Protection ) Rules. FRP 4.1 (b) provided that the applicant must ‘have formed part of the family unit of the person having protection status before they left the country of their habitual residence in order to seek protection.’ The test, therefore, has two separate elements: was the country concerned that of the sponsor’s habitual residence at the material time and was the family unit formed in that country?
Habitual Residence
4. At [16], the judge states:
Mr O'Muirigh sought to persuade me that the words 'habitual residence' was of a sufficiently elastic character as to permit acceptance of his assertion that the appellant's habitual residence was Greece and that the union had been established prior to his entering Greece but I am not at all persuaded by that. The rules are quite obviously intended to address a family relationship formed by a person prior to his fleeing his country of habitual residence, and where he claims to be at risk of persecution. In his case that is unequivocally Yemen and he says he left there a long time ago. He was never persecuted in Greece; he has been granted asylum on the basis of events that are alleged to have taken place in Yemen, not Greece.
5. That part of the judge’s analysis is wrong in law. The correct construction of the rules is set out in the Immigration Appeal Tribunal decision in AA (Marriage - Country of Nationality) Somalia [2004] UKIAT 00031 which considered the previous (but similar) rule paragraph 352A. In that case, the adjudicator had fallen into the same error of assuming that a ‘country of a person’s former habitual residence’ must be the country in which they had a well-founded fear of persecution. In that case, the country of nationality (and from which the appellant had fled persecution) was Somalia and the country where the appellant and sponsor had married and had lived together was Ethiopia. The IAT found:
34. In many cases, the country of a person’s former habitual residence, which he or she leaves in order to seek asylum, will be the country in which the person granted asylum in the United Kingdom, has a well-founded fear of persecution. If, however, the drafter of paragraph 352A had intended the reference to such a country in sub-paragraph (ii) to be so confined, it would have been an easy matter to have said so.
35. We put to Mr Schwenk the following point. If paragraph 352A(ii) falls to be construed so as to permit the appellant in the present case to succeed if he can show that his wife was habitually resident in Ethiopia, before coming to the United Kingdom, a potential anomaly arises. On the face of it, there would seem to be no good reason why a couple who flee persecution in country X, and who marry in country Y in circumstances where their situation in country Y is so temporary and/or precarious as to prevent them from being habitually resident there, should be excluded from the benefit of paragraph 352A. Mr Schwenk's response was, in effect, to the effect that the existence of such a potentially anomalous situation should not lead the Tribunal to adopt a construction of paragraph 352A(ii) which removes from its ambit even more cases of a meritorious nature, thereby taking paragraph 352A even further from the spirit and intent of the recommendation of the Final Act of the 1951 Conference. The Tribunal agrees.
6. Greece was therefore not excluded as a possible country of habitual residence of the sponsor simply because it was not the country from which the sponsor had fled persecution. However, notwithstanding the judge’s error, the question still remains: was Greece the sponsor’s country of habitual residence or only a country of transit through which asylum seeking sponsor had passed en route to the United Kingdom?
7. Ms Arif relies on the skeleton argument of her colleague, Ms Blackburn:
The SSHD would suggest that her recently updated guidance on family reunion is assistive on this point. Appendix Family Reunion (Sponsors with Protection). In particular, she would point to page 23 which deals specifically with FRP 4.1. She has appended all relevant paragraphs to this skeleton, but would focus specifically on this one:
“Whilst the intention of pre-flight under FRP 4.1. (b) should be followed in the spirit of the meaning which is set out in Appendix FRP, a distinction should be drawn between transit countries, through which the sponsor merely travelled to reach the UK after having fled their country of habitual residence, and a country where the sponsor had become habitually resident, and from which the sponsor has fled from in order to seek protection in the UK. A case-by-case consideration should be applied to determine the relationship was formed in a country of habitual residence (FRP 4.1. (b)), and the relationship was not formed in a transit country. You do not need to consider the reasons why the sponsor left this country of habitual residence before they sought protection in the UK, but instead whether the applicant formed part of the family unit with their partner in a country of habitual residence before the sponsor sought protection in the UK.” [my emphasis]
8. Ms Arif submitted that the sponsor had never attempted to regularise his immigration status in Greece. I do not find that that failure alone excludes Greece as a possible country of habitual residence. In AA, the IAT noted [38] that:
Although life in Ethiopia was plainly difficult, there is no suggestion that the Ethiopian authorities regarded the sponsor's presence in that country as unauthorised. In her answer to question 45 of the Home Office interview, "Did you have any problems with the Ethiopian authorities?" She replied, "No. They don't help you but they don't give you any problems either". Her comment about the Ethiopian government not accepting people from Somalia appears to have been in the context of explaining why she took no steps to be formally recognised as a refugee there.
The IAT discusses habitual residence further at [36]:
36. However, even on this construction of paragraph 352A, the appellant will only succeed if he can show on balance that the sponsor was habitually resident in Ethiopia. Mr Schwenk relied upon the House of Lords' opinions in Nessa v Chief Adjudication Officer [1998] No.2 All ER 728. In that case, whilst not coming to the conclusion that "ordinary residence" and "habitual residence" were synonymous, their Lordships found that there was a degree of overlap and that the common core of meaning between the two expressions made it relevant to consider case law decided on the meaning of "ordinary residence". That expression connoted "residence in a place with some degree of continuity and apart from accidental or temporary absences" (see Levene v Inland Revenue Commissioners [1928] AC 217, 225). In Shah v Barnet London Borough Council [1983] 2 AC 309, Lord Scarman held that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. The House of Lords in Nessa remitted the matter to be decided on a proper basis by the relevant Tribunal. In doing so, they accepted that "an appreciable period" of residence, such as to establish habitual residence, may be as short as a month (see MacDonald's Immigration Law and Practice, fifth edition, paras. 5.14 and 13.21).
9. The duration of the sponsor’s time in Greece was relatively short, but as the case law indicates, that in itself does not exclude the possibly that he was habitually resident as he claims. More problematic for the appellant and sponsor, is how Greece fits into a pattern of different countries through which the appellant moved, without ever apparently seeking to settle down, having fled from Yemen.
10. Conflating to some extent the concepts of habitual residence and ‘ordinary residence’ as the House of Lords did in Nessa v Chief Adjudication Officer [1998] No.2 All ER 728, it is difficult to conclude, on the evidence in the instant appeal, that for the sponsor Greece represented ‘residence in a place with some degree of continuity … apart from accidental or temporary absences’ or that he had adopted the country ‘voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.’ It had been for the appellant and sponsor to prove to the First-tier Tribunal that Greece had been the sponsor’s country of habitual residence and I cannot see that, beyond the assertions made in their own evidence, they produced any objective evidence to support those assertions. I consider that, in the context of the sponsor’s movements through Europe and Scandinavia, Greece has all the hallmarks of having been yet another transit country rather than a place where the sponsor enjoyed any ‘degree of continuity’. I find that, although the judge erred by rejecting Greece as the sponsor’s previous country of habitual residence for the wrong reasons, his error was not material because it is clear that, on the evidence, Greece was a country through which the sponsor passed in transit to the United Kingdom. It has not at any time been the sponsor’s country of habitual residence.
Part of the family unit of the person having protection status
11. Even if I am wrong as regards habitual residence, to meet the requirements of the rules, the appellant must also prove that she was ‘part of the family unit of the person having protection status’ in the country of the sponsor’s habitual residence (Greece). Proving this is problematic for the appellant. The proxy marriage of appellant and sponsor took place not in Greece, but via laws of Yemen, whilst the couple met for a marriage ceremony in Jordan. As Ms Blackburn’s skeleton argument at [16] submits:
[The appellant and sponsor] have never lived as a family unit in Greece, nor Jordan, nor any of the other countries the Sponsor travelled through. Even if the tribunal were to accept that the Sponsor was habitually resident in one of those countries, it cannot be properly said, in the SSHD’s submission, that the relationship was formed, nor that the Appellant and Sponsor ever functioned as a proper family unit in that same country, as is required by the rules and guidance.
I agree with that submission. The appellant has not ‘formed part of the family unit of the person having protection status before they left the country of their habitual residence in order to seek protection.’ She cannot, in consequence, meet the requirements of the rules.
Article 8 ECHR
12. Article 8 ECHR outside the rules was not addressed in any detail by Mr O'Muirigh in his oral submissions. Given that the appellant cannot meet the Immigration Rules, she must show that exceptional circumstances exist which would entitle her to succeed outside the rules. I am aware that the appellant and sponsor have a child together. That fact per se does not constitute an exceptional circumstance given that the appellant can apply to join the sponsor in the United Kingdom by other legitimate routes. The First-tier Tribunal, albeit from a legally unsafe premise, found that there were no exceptional circumstances under Article 8 ECHR. The grounds of appeal at [12-16], refer to the difficult circumstances of the appellant and her son in Yemen (she claims, as a Sunni, that she faces persecution from Houthis) but this submission is undeveloped; it is also not clear if it was advanced at all before the First-tier Tribunal, which makes no reference to any such problems in Yemen. I do not find, either for the reasons given in the grounds of appeal or at all, that the First-tier Tribunal erred in law in its assessment of Article 8 ECHR.
13. For the reasons I have given, I dismiss the appeal.

Notice of Decision
The appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 February 2025