Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005822

First-tier Tribunal Nos: HU/56701/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE I LEWIS

Between

Anou MBUMBA
(ANONYMITY ORDER NOT MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr C Holmes of Counsel, instructed by WTB Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 17 April 2025

DECISION AND REASONS
Introduction
1. This is an appeal against a decision of First-tier Tribunal Judge Caswell promulgated on 25 September 2024 dismissing an appeal on human rights grounds against a decision of the Respondent dated 28 February 2023 refusing an application for entry clearance made on 29 November 2022.
2. The Appellant is a national of the Democratic Republic of Congo born on 15 August 2006. At the date of the application for entry clearance she was still a minor at 16 years old.
3. The application for entry clearance was made to join the Appellant’s paternal aunt Ms Theresa Mutemba (date of birth 19 August 1982) in the UK (‘the Sponsor’). The Sponsor is also a citizen of the DRC; she is settled in the UK having been granted indefinite leave to remain on 11 March 2021. She is married to a British citizen and has four children between the ages of 2 and 17.
4. The Appellant’s personal history is helpfully summarised at paragraph 4 of the Decision of the First-tier Tribunal. It is said that she was born following a casual relationship between her parents; she has never had a relationship with her father and his whereabouts are unknown; she was abandoned by her mother at the age of 3, being left on the steps of the home of her paternal grandmother. This was also then the home of the Sponsor (who would have been approximately 17 at the time of the Appellant’s abandonment by her mother in or about 2009). In this context I note that the Sponsor came to the UK on 4 February 2015. The Appellant was looked after by her paternal grandmother until she died on 30 April 2021 - when the Appellant would have been 14 years and 8 months old. It is the Appellant’s case that since the death of her grandmother the Sponsor assumed sole responsibility, and delegated the responsibility for day-to-day care to Ms Rachel Ndongala, a neighbour of the deceased grandmother (also the Sponsor’s mother). It is said that the Sponsor sent money monthly to Ms Ndongala and maintained regular contact with the Appellant.
5. Further to this it was claimed that Ms Ndongala’s changing circumstances in the DRC, and a claimed increase in risk to the Appellant, prompted the application for entry clearance: see Decision at paragraph 5.
6. The Respondent considered the application with particular reference to paragraph 297(i)(f) of the Immigration Rules (which is helpfully set out in the decision letter). The Respondent was not satisfied that the Appellant and the Sponsor were related as claimed; was not satisfied that neither of the Appellant’s parents were no longer involved with her; was not satisfied that there were “serious and compelling family or other considerations [making] exclusion of the [Appellant] undesirable”, and was not satisfied in respect of maintenance and accommodation in the UK. Further to this, the Respondent was not satisfied that Article 8 was engaged because it was not accepted that there was family life between the Appellant and the Sponsor; in the alternative the Respondent considered a decision to refuse entry clearance to be proportionate by reference to Article 8(2).
7. The Appellant appealed to the IAC.
8. The appeal was dismissed for reasons set out in the ‘Decision and Reasons’ of First-tier Tribunal Judge Caswell. Whilst the Judge found that the Sponsor had undertaken financial responsibility for the Appellant, and also that the evidence showed a close relationship, she was not satisfied that the relationship was akin to a parental relationship. In this context she found that there was a parental relationship between the Appellant and her grandmother whilst she was alive; she noted that the choice of the Appellant’s school had thereafter been left to Ms Ndongola and the Sponsor did not know the name of the school. The Judge noted that the Sponsor referred to believing that something had happened to the Appellant, but that the Appellant had not ‘opened up’ to her about it: the Judge considered that this suggested that the relationship was “not as close as I am being asked to find” (paragraph 24). The Judge was also not satisfied that “the social and economic environment for the Appellant in the DRC is unacceptable, or that her emotional needs are not be met under the current arrangements” (paragraph 26). The Judge concluded that the Appellant did not satisfy the requirements of the Rules.
9. The Judge then went on to consider and dismiss the appeal under Article 8 (paragraph 28 – see further below).
10. The Appellant sought permission to appeal to the Upper Tribunal. Permission was refused in the first instance by First-tier Tribunal Judge Mulready on 4 December 2024, but subsequently granted by Upper Tribunal Judge Sheridan on 22 January 2025.
11. The Respondent has not filed a Rule 24 response, but Ms McKenzie confirmed that the Appellant’s challenge was resisted.

Analysis
12. In the premises I note that at paragraph 22 the Judge made a self-direction with regard to the test under paragraph 297(i)(f), referencing the case of Mundeba [2013] UKUT 88. No criticism of that self-direction is made in the Grounds, or by Mr Holmes (who settled the Grounds) before me. It may be seen that the closing sentence at paragraph 26 (partially quoted at paragraph 8 above) reflects this self-direction.
13. The Judge’s consideration of Article 8 is set out at paragraph 28 in the following terms:
“Looking at the appeal in general Article 8 terms, as already intimated I am not able to find that there is family life here between the Appellant and the sponsor, in a sense which engages Article 8. The Appellant is now 18 years old. I find she is being supported financially by the sponsor, but not that their relationship is so close, or that the Appellant is so dependent on her, that family life is established. Even if there were such family life, I do not find that it would be interfered with if the refusal of entry clearance were maintained, given that the sponsor has not seen the Appellant for 9 years, the grandmother was the Appellant’s primary caregiver, and the day to day care for the Appellant was provided by Rachel after the grandmother’s death. I find that the level of family life (if any) enjoyed by the Appellant with the sponsor can be carried on as before, with financial support and some emotional support from a distance. Even if there were an interference with family life, however, the Respondent has shown that it is lawful, meets the aims of the protection of the social and economic interests of the UK through the maintenance of fair and effective immigration control, and proportionate, on my findings of fact above.”
14. It may be seen that the Judge’s analysis of Article 8, whilst in itself confined to a single paragraph, draws upon and takes forward the more extensive analysis of the factual matrix set out during the analysis and consideration of the case under the Immigration Rules.
15. That analysis includes, in my judgement, quite careful scrutiny of the nature of the relationship between the Appellant and the Sponsor through time. I do not consider that there is anything remotely inconsistent in recognising “quite a close relationship… with considerable commitment from the sponsor, financially and otherwise” but rejecting a quasi-parental relationship. Nor do I think that there is anything deficient in the Judge’s reasoning: she notes the role of Ms Ndongola in selecting a school and the Sponsor’s inability to name the school; it was open to the Judge to infer that the relationship was “not as close as I am being asked to find” by reference to the lack of openness on the part of the Appellant.
16. In this latter context I note that the Judge gave express consideration to the notion of emotional dependence – “If the Appellant was truly emotionally dependent on the sponsor…” (paragraph 24).
17. I am satisfied that the Judge’s findings in these regards are adequately clear, adequately reasoned, and sustainable.
18. I am also satisfied that it was legitimate to take such analysis forward into consideration of the engagement of Article 8.
19. The principal ground of challenge seeks to impugn the Judge’s finding that there was no family life within the contemplation of Article 8. It is argued that the Judge failed to apply the correct test with particular reference to Rai [2017] EWCA Civ 320. It is argued that the Judge has conflated the notion of a parental or quasi-parental relationship with the notion of the existence of family life (which is not contingent upon a parental or quasi-parental relationship). It is otherwise argued that the Judge’s findings that there was “quite a close relationship” including “considerable commitment on the sponsor, financially and otherwise” appears to satisfy the test that emerges from the guidance in Rai.
20. I do not accept that the Judge wrongly approached Article 8(1) on the basis that it could only be engaged if there was a parental or quasi-parental relationship. Whilst the Judge’s analysis under the Rules conducted such analysis, such analysis also encompasses careful consideration of the exact nature of the relationship between the Appellant and the Sponsor. The Judge rejected the notion of ‘true emotional dependence’ between the Appellant and the Sponsor.
21. In this context and generally it is to be recalled that the line of cases discussed in Rai, including Kugathas, are concerned with adult children and a consideration of the extent to which family life within the meaning of Article 8 might continue between an adult child and a parent. The Judge herein sustainably rejected the notion of there ever having been a quasi-parental relationship between the Appellant and the Sponsor. To that extent the factual premises here are distinguishable from the line of authority relied upon by the Appellant. As such, this is not a case based on consideration of a continuation of family life between a parent and child because of a combination of a continuing emotional dependency and an element of real or committed or effective support.
22. Moreover, in the cases discussed in Rai it is emphasised time and time again that each case will be fact sensitive.
23. For the avoidance of any doubt, I also had regard to the decision of Mobeen [2021] EWCA Civ 886, in particular paragraphs 46 and 47 which my attention was drawn by Mr Holmes during the course of submissions. There is nothing therein that makes any material difference to the analysis in Rai.
24. In my judgement there is nothing in the clearly case-specific and fact-sensitive analysis of Judge Caswell that offends against any legal principle identifiable in Rai or otherwise.
25. It is adequately clear from the Decision that the Judge was alert to the fact of a blood relationship, the Appellant being the niece of the Sponsor; the Judge explained the reasons for finding that the aunt/niece relationship had never evolved into a closer quasi-parental relationship; the Judge adequately explained her reasons for finding that there was not a true emotional dependence. All such matters, notwithstanding the finding that there was financial and practical support, sustainably inform a conclusion that Article 8(1) was not engaged. In so far as the Judge recognised that there was a degree of closeness in the relationship, given that this was a fact sensitive exercise, it was still open the Judge to determine that such degree was, on the facts here, not sufficient to engage Article 8.
26. In all the circumstances I reject the first line of challenge.
27. The second Ground argues that the Judge failed to factor into her Article 8 assessment the significance of the Sponsor’s status as a recognised refugee. The Grounds plead that this was a relevant consideration pursuant to the observations of the Tribunal in AH (Article 8 – ECO – Rules) Somalia [2004] UKIAT 00027, and that weight should have been accorded to the fact that the physical separation of the Appellant and the Sponsor was not one of choice but enforced by the Sponsor’s status as a refugee – which also inhibited her ability to return to the DRC.
28. There is no trace in the documents that any such argument was put to the First-tier Tribunal. When I raised the point with Mr Holmes, he indicated that he would need to check his notes; having done so, he stated that he could see nothing in his notes that shed any light - necessarily, in substance, this means that his notes did not record any such submission having been advanced; moreover, he had no independent recollection of having argued the point. In the circumstances I am not satisfied that the point was ever articulated before the First-tier Tribunal. In consequence I conclude that this ground cannot avail the Appellant at this stage. Even if it were otherwise, it does not make any material difference to the Judge’s finding in respect of the absence of true emotional dependency - which is the primary matter that informs the rejection of the notion of the existence of family life within the contemplation of Article 8. In fairness, Mr Holmes acknowledged that this line of challenge was relevant to proportionality and coalesced with the challenge to proportionality under Ground 3.
29. Yet further I note that the passage quoted from AH in the Grounds at paragraph 11 refers to a qualitative difference between a disruption to family life based on someone fleeing as a refugee, compared to someone leaving “in the normal course of the changes to family life which naturally occur as children grow up”. There is nothing apparent on the face of the documents that were before the First-tier Tribunal to support the notion that the departure of the Appellant’s aunt at a time when the aunt was 32 years old and the Appellant was 8 ½ years old was qualitatively different from the normal course of changes that naturally occur in family life, even if such departure was prompted by a fear of harm on the part of the aunt.
30. The third Ground of challenge also seeks to impugn the Judge’s approach to proportionality. In circumstances where I have rejected the challenge to the Judge’s finding that Article 8 is not engaged, this line of challenge cannot avail the Appellant.
31. In any event I find no substance to the challenge which pleads that the Judge erred in respect of the proportionality balancing exercise. In my judgement, the Ground in substance merely seeks to reargue the balancing exercise without identifying any specific error of law. For example, paragraph 14 of the initial Grounds (which are adopted in the renewed Grounds) emphasises the Judge’s favourable findings in respect of maintenance and accommodation, and suggests more weight should have been accorded to such factors in circumstances where the Appellant narrowly missed satisfying all of the requirements of the Rules.
32. I quite simply do not accept that the Judge disregarded any of her earlier analysis and findings when conducting the residual balancing exercise in the final sentence of paragraph 28. If the Decision is read as a whole, it is adequately clear that the Judge made findings favourable to the Appellant, and implicitly had regard to such findings in respect of: the blood relationship between the Appellant and the Sponsor (which had not been accepted by the Respondent); the nature and quality of such relationship – although the Judge found that there was not a true emotional dependence she did acknowledge that there was some closeness; the provision of financial support; and the availability of maintenance and accommodation in the UK. It is difficult to see that there is anything omitted from the Appellant’s side of the ‘balance sheet’. It is fanciful to suggest that the Judge did not have in mind the fact that the Appellant’s grandmother had died leaving her with no immediate family member - and indeed that this had been the situation for approximately 19 months up to the date of the application (the grandmother died on 30 April 2021, the application was made on 9 November 2022); the Appellant’s circumstances following her grandmother’s death, and the role of Ms Ndongola, were at the core of the discussion of the nature and quality of the relationship between the Appellant and the Sponsor. Moreover, the Judge gave express consideration to the Appellant’s circumstances in the DRC, and the Sponsor’s concerns in respect thereof. The Judge otherwise did not accept that the Appellant was at any particular risk as had been claimed - a finding not challenged before me. So far as the Respondent’s side of the balance sheet is concerned, it is plain that the Judge appropriately had regard to the public interest in maintaining effective immigration control with particular reference to the Appellant’s failure to satisfy the requirements of the Rules.
33. There is a further feature to the appeal that emerged during the course of Ms McKenzie’s submissions. At paragraph 28 the Judge found, in the alternative, “Even if there were such family life, I do not find that it would be interfered with if the refusal of entry clearance were maintained…”. In substance this appears to recognise the possibility that the first Razgar question could be answered in the Appellant’s favour, but that if it were, the Appellant would still fail at the second Razgar question. There is no apparent challenge to this line of reasoning in the Grounds. Mr Holmes sought to suggest it was covered by paragraph 14 of the Grounds – “The Judge’s suggestion at 28 that there is no interference in the family life between the parties is an incongruous one in the context of the decision which separates them, but in any event, the Judge’s balancing exercise fails to accurately characterise the strength of the public interest that might weigh against the appellant.…”.
34. I do not accept Mr Holmes submission in this regard. Referring to the Judge’s ‘suggestion’ as being ‘incongruous’ is not the same as impugning it as being in error of law. The remainder of paragraph 14 of the Grounds makes it plain that the substance of paragraph 14 is concerned with challenging the proportionality balancing exercise. There is no articulated challenge on the basis of error of law to the Judge’s finding (not ‘suggestion’) that there would be no interference.
35. Drawing these matters together, I conclude that the rejection of Ground 1 is adversely determinative of the Appellant’s challenge to the decision of the First-tier Tribunal. Moreover and in any event, the failure to articulate a challenge to the Judge’s finding in respect of ‘interference’ is also fatal to the challenge. Even if it were otherwise, the challenge to the proportionality exercise does not disclose a material error of law. The Appellant’s challenge fails accordingly.

Notice of Decision
36. The Decision of the First-tier Tribunal contains no material error of law. The decision stands accordingly.
37. The Appellant’s appeal remains dismissed.

I Lewis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 July 2025