Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-005934
First-tier Tribunal No: EU/50840/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of June 2026

Before

THE HON. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE LANE

Between

ZUBAIR SARWAR
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Shabir
For the Respondent: Mr Lindsay, Senior Presenting Officer

Heard at Edinburgh on 16 March 2026

DECISION AND REASONS
(1) Introduction
1. The appellant is a male citizen of Pakistan who was born on 17 November 1986. He applied for leave to remain in the United Kingdom under the EU Settlement Scheme (“the EUSS”) on the basis of a derived right to residence through his son (whose date of birth is 18 June 2014). The application was refused by a decision of the respondent dated 12 July 2021 and confirmed in a subsequent administrative review decision dated 21 January 2024 (“the administrative review”). The appellant appealed to the First-tier Tribunal which, in a decision dated 12 November 2024, dismissed the appeal. The appellant now appeals to the Upper Tribunal.
2. There is one ground of appeal. As the ground is relatively short, we set it out below in extenso:
“Ground 1 – The judge’s analysis of Section 55 of the BCIA, Article 8 and whether or not it amounted to a ‘new matter’
1. It is submitted that the judge was wrong to conclude that that (sic) it did not have jurisdiction to consider the appellant’s Article 8 claim for the following reasons:
2. At [19] the judge records that in her administrative review, the respondent states that they have considered Section 55 with the “minimum possible interference with a family’s private life”. At [23] the judge finds that “I do not consider that the respondent has by inference or otherwise, considered article 8 in their decision making”. It is submitted that at no time did the respondent seek to amend or withdraw that aspect of their decision. The judge therefore erred in failing to explain how the respondent’s own assessment of considering Section 55 with the “minimum possible interference with a family’s private life” did not amount to an inference or otherwise of Article 8 in their decision making. The UT in Celik found at [96] that where the respondent has already considered Article 8, then the FTT has jurisdiction to consider the matter.
3. At [7] the judge states he did not need to be addressed on CAO. We can find no notification on HMCTS that parties were informed of the judge’s response (as it still shows pending on HMCTS). It is submitted that the judge’s refusal to allow for further submissions on CAO is an error of law when [22] of the judge’s analysis of CAO is considered.
4. It is respectfully submitted that the appeal of CAO was concerned with the meaning and effect of Section 55 and how it had to consider the interaction of Section 55 with Article 8 ECHR: see para 1. At [59-69] in CAO, the Supreme Court held that the respondent is under a duty to consider the best interests of the child. However, the FTT is not subject to that same duty under Section 55 and but (sic) is required to have regard to the best interests of the child as a primary consideration under Article 8.
5. It is submitted that the judge at [21] further erred in stating that no application for leave to remain was be made under S117b(6) of the Nationality, Asylum and Immigration Act 2004. No such application can be made under S117(b). However, the judge erred in failing to find that when the respondent is under a section 55 duty to consider the best interests of a child it is always required to consider those interests as a primary consideration in a proportionality assessment under Article 8.”
3. Permission to appeal was granted in the First-tier Tribunal by Judge T Lawrence, who said:
“2. It is arguable that the judge materially erred in failing to consider whether or not the decision under appeal was an unjustified breach of rights that are provided by Article 8 of the European Convention on Human Rights. It is arguable that that matter was not a new matter as defined in section 85 of the Nationality, Immigration and Asylum Act 2002, because the Respondent had considered the matter in question in the 21 January 2024 decision. As is noted in the grounds of appeal to the Upper Tribunal, the decision 21 January 2024 considers the effect on the Appellant’s child, the continuity of care and development of the child, the child’s best interests, and the extent of the interference with the Appellant’s family’s private life, which arguably amounts to the consideration of the matter in question.
3. It is also arguable that the judge materially erred in law by failing to grant the Appellant’s request to make submissions on the impact on the appeal of the judgment of the UK Supreme Court in CAO v SSHD (Northen Ireland) [2024] UKSC 32 , which was given on 23 October 2024, in the meantime between the hearing and the judge’s decision in the instant appeal.”
4. Before the Upper Tribunal, the appellant no longer sought to argue that he was entitled to leave to remain by way of a derivative right under the EUSS. His appeal, therefore, rests wholly on his assertion that the judge failed to consider Article 8 ECHR, which the appellant claims had been validly raised in the appeal before the First-tier Tribunal and which was not a ‘new matter’ requiring the respondent’s consent before it could be considered by the First-tier Tribunal.
(3) The Legal Framework
(3)(a) The Nationality, Immigration and Asylum Act 2002
5. Section 85 of the Nationality, Immigration and Asylum Act 2002 provides as follows:
(1) An appeal under section 82(1) against a decision shall be treated by [the Tribunal] as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, [the Tribunal] shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
(4) On an appeal under section 82(1) against a decision [the Tribunal] may consider any matter which [it] thinks relevant to the substance of the decision, including a matter arising after the date of the decision.
(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.
(6) A matter is a "new matter" if—
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.
6. Section 120 of the Nationality, Immigration and Asylum Act 2002 provides as follows:
(1) Subsection (2) applies to a person ("P") if—
(a) P has made a protection claim or a human rights claim,
(b) P has made an application to enter or remain in the United Kingdom, or
(c) a decision to deport or remove P has been or may be taken.
(2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out—
(a) P's reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which P should not be removed from or required to leave the United Kingdom.
(6) In this section—
'human rights claim' and 'protection claim' have the same meanings as in Part 5;
references to "grounds" are to grounds on which an appeal under Part 5 may be brought (see section 84).
(3)(b) The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020
7. Regulation 9 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 provides as follows:
“(1) If an appellant makes a section 120 statement, the relevant authority must consider any matter raised in that statement which constitutes a specified ground of appeal against the decision appealed against. For the purposes of this paragraph, a "specified ground of appeal" is a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act.
(2) In this regulation, "section 120 statement" means a statement made under section 120 of the 2002 Act and includes any statement made under that section, as applied by Schedule 1 or 2 to these Regulations.
(3) For the purposes of this regulation, it does not matter whether a section 120 statement is made before or after the appeal under these Regulations is commenced.
(4) The relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision.
(5) But the relevant authority must not consider a new matter without the consent of the Secretary of State.
(6) A matter is a "new matter" if—
(a) it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act, and
(b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision appealed against under these Regulations, or
(ii) a section 120 statement made by the appellant.”
(3)(c) Celik
8. In paragraphs 94 to 98 of their decision in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC), an Upper Tribunal panel said:
“94. Transposed to regulation 9 of the 2020 Regulations, the "decision appealed against", is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.
95. This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.
96. Given what we have said about the nature of the respondent's decision-making under Appendix EU, the raising of a human rights claim will always be a "new matter", except where, for some reason, the respondent has already considered it.
97. In the present case, the respondent's consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.
98. As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee."
(3)(d) CAO
9. In paragraphs 49 to 51 of their judgment in CAO v Secretary of State for the Home Department (Northern Ireland) [2025] AC 1117; [2024] UKSC 32, Lord Sales JSC and Dame Siobhan Keegan LCJ said as follows:
“49. In ZH (Tanzania) [2011] 2 AC 166 Baroness Hale explained (paras 21–28) that the European Court in its case law interpreting the rights contained in the ECHR has held that the best interests of a child must be treated as a primary consideration in relation to decisions affecting that child, thereby aligning the interpretation of the Convention rights with article 3.1 of the UNCRC. In particular, in relation to decisions involving a child's rights under article 8, as a matter of interpretation of that provision, the best interests of the child are to be treated as a primary consideration: see, in particular, Neulinger v Switzerland (2010) 54 EHRR 31, GC. This affects the balancing exercise in determining whether a decision involves an interference with a child's private life or family life interests which is proportionate to a legitimate aim identified in article 8(2).
50. Baroness Hale also considered (at paras 34–37) the issue of "consulting the children" in terms which allow for flexibility depending on the factual circumstances. The main principle emerging from these passages is that of the need for decision-makers to be fully informed about everything bearing on a child's best interests in order properly to assess what those interests are. In this way best quality decision-making will ensue. Whilst they are distinct, the potential nexus between article 8 considerations and the matters referred to in the Guidance is unmistakable.
51. Lord Hodge, writing for the Supreme Court, summed up the position in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1 WLR 3690 ("Zoumbas"), 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."”
(3)(e) Ajmal & Hooi
10. The headnote in Ajmal v Hooi (new matter - “considered” - Reg 9(6)(b) [2025] UKUT 379 (IAC) states as follows:
(1) In an appeal under the Immigration (Citizens’ Rights Appeals)(EU Exit) Regulations 2020 (“the 2020 Regulations”), regulation 9(4) confers a power on the Tribunal to consider a human rights ground, subject to the prohibition in regulation 9(5): Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC); [2022] Imm AR 1438 applied, Dani (non-removal human rights submissions) [2023] UKUT 293 (IAC) considered.
(2) A matter is a “new matter” for the purposes of regulation 9(6) of the 2020 Regulations if, in addition to satisfying the condition at regulation at 9(6)(a), the matter has not been “previously considered”, therefore satisfying regulation 9(6)(b). “Considered” must be interpreted as the matter having been the subject of deliberate thought by the SSHD in the context of (i) the decision appealed against under the 2020 Regulations or (ii) a section 120 statement made by the appellant. Ayoola (previously considered matters) [2024] UKUT 143 (IAC) should not be followed.
(3) The question to be determined under regulation 9(6)(b) is whether, in fact, the SSHD has deliberately thought about the evidence or arguments, or not. The answer to this question will depend on the circumstances and the particular facts of an application and the correspondence with the Home Office.
(4) Submissions
11. Mr Shabbir, for the appellant, submitted that CAO made it clear that Article 8 ECHR and the duty to consider the best interests of children under section 55 of the Borders, Citizenship and Immigration Act 2009 were ‘integrated’ and that it would be ‘artificial to treat them as discrete concepts.’ He submitted that the appellant had made an Article 8 ECHR claim in his EUSS appeal and that this claim had been addressed in the respondent’s administrative review decision of 21 January 2024. The First-tier Tribunal had, therefore, erred in law by failing to address Article 8 ECHR.
12. The administrative review decision records that:
“Upon reviewing your application, I have noted that you applied to the EU Settlement Scheme (EUSS) as a person with derivate rights to reside – Chen as a joint primary carer of a self-sufficient EEA citizen child, Rahim Michal Sarwar, your son. Your application was refused because you did not meet the requirements of the scheme as a ‘person with a derivative right to reside’.”
13. Having reiterated the refusal of the application under the EUSS, the administrative review decision went on to say this:
“At this administrative review stage, consideration has been given to Section 55 of the Borders, Citizenship and Immigration Act 2009 (Duty regarding the welfare of children). The duty to have regard to the need to safeguard and promote the welfare of children requires UK Visas and Immigration to consider the effect on any children of a decision to refuse leave, or remove, against the need to maintain the integrity of the immigration control. Our aim is always to carry out enforcement of the Immigration Rules with the minimum possible interference with a family’s private life, and in particular to enable a family to maintain continuity of care and development of the children in ways that are compatible with the immigration laws.” [our emphasis]
14. It is this paragraph of the administrative review decision which Mr Shabbir argues shows that the Secretary of State engaged with the appellant’s Article 8 ECHR claim. Indeed, we were, in that regard, not taken to any other part of the application, the refusal decision, the administrative review decision or the appeal. Mr Shabbir submitted that the use of the words ‘interference’ ‘section 55’ ‘private’ and ‘family life’ are all commonplace in any analysis of Article 8 ECHR and plainly indicated that the author of the administrative review decision had Article 8 ECHR in mind. Consequently, the judge erred in law when he failed at [21-24] to determine the appeal on Article 8 ECHR grounds:
“21. The appellant’s application was made under Appendix EU to the Immigration Rules. He did not apply for leave to remain under Section 117B(6) of the Nationality, Asylum and Immigration Act 2004 or under article 8 ECHR. I do not consider that the respondent did consider or engage with article 8 ECHR in their decision. The Administrative Review letter of 21/1/2024 makes no mention of Section 117B of NIAA or article 8 ECHR. There is no mention of public interest considerations and no mention of proportionality.
22. What is apparent is that the wording of the (Administrative Review) letter the appellant relies upon is made in reference to Section 55 of the BCIA. However this in turn was only referenced by the respondent because the appellant had raised Section 55 in his application for an Administrative Review. I considered the case of CAO. This considered Section 55 in the context of an article 8 ECHR appeal and not an EUSS appeal. The court confirmed that Section 55 is a primary consideration, however it is not a paramount consideration and it is also a provision that is relevant to article 8 ECHR considerations.
23. I do not consider that the respondent has by inference or otherwise, considered article 8 in their decision making. I accept therefore that article 8 ECHR as raised by the appellant is a new matter, for which he does not have the consent of the respondent to raise. It is of course open to the appellant to apply for leave to remain under Section 117B(6) of NIAA should he choose to do so.
24. In this appeal the best interests of the appellant’s child are to remain in the UK where he has connections and is in education. It is also in his best interests to have access to both parents. However I agree with the respondent that this assessment does not override the application of the Immigration Rules as set out in Appendix EU. I dismiss the appeal.”
15. Mr Lindsay, for the Secretary of State, submitted that the appeal has three primary characteristics: (i) the appellant had never made an Article 8 ECHR claim or appeal; (ii) Article 8 ECHR had (to use the expression employed in Ajmal) never ‘been the subject of deliberate thought’ by the Secretary of State; and (iii) the judge had made an unequivocal finding on the facts that Article 8 ECHR was a new matter and that the Secretary of State did not consent to deal with it in the appeal before the First-tier Tribunal. Further, he submitted that CAO was not authority for any proposition that, whenever a duty to consider section 55 best interests of children arose, Article 8 ECHR was inevitably engaged. Mr Lindsay submitted that there was nothing in the refusal decision or the administrative review decision to suggest that the Secretary of State had ‘examined the particular circumstances of the appellant and his family through the lens of Article 8 ECHR.’
(5) Analysis
16. We agree with the submissions of Mr Lindsay. We find that the appellant never made an Article 8 ECHR claim or appeal and that the First-tier Tribunal did not err in law in concluding at [23] that the Secretary of State had not ‘by inference or otherwise considered Article 8 ECHR in their decision making’ and that ‘Article 8 ECHR is a ‘new matter’ which [the appellant] does not have the consent of the respondent to raise.’ We have so concluded for the following reasons.
17. First, there is nothing in the refusal decision or the administrative review decision to indicate that the respondent had addressed Article 8 ECHR. Mr Shabbir’s reliance on the administrative review decision, in particular, is unpersuasive. Determining whether Article 8 ECHR has been ‘deliberately’ considered by the respondent should be a relatively straightforward exercise. It makes no sense whatever to record, as in the instant appeal, the use of particular words supposedly associated with Article 8 ECHR (‘interference’, ‘private’, ‘family’) as if the accumulation of a critical mass of such words must mean that Article 8 ECHR has been addressed. The respondent’s claim that ‘our aim is always to carry out enforcement of the Immigration Rules with the minimum possible interference with a family’s private life (sic)’ may be rather unclear (since we struggle to see what the adjective ‘private’ adds in this context, whilst we have never previously encountered the expression ‘family’s private life’ in any discussion of Article 8 ECHR), but we are certain that it does not indicate that the respondent has ‘deliberately’ considered Article 8 ECHR in the sense understood in Ajmol. The respondent’s stated ‘aim’ is, as Mr Lindsay submitted, ‘standard wording’ which might apply to any decision or review. The ‘aim’ refers only to the ‘enforcement of the Immigration Rules’; it does not indicate any application of the principles of Article 8 ECHR to the particular facts in the appellant’s case.
18. Secondly, there is, in our opinion, nothing in CAO which supports Mr Shabbir’s submission that, whenever section 55 best interests are mentioned by a decision maker, Article 8 ECHR is inevitably engaged. ‘The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention’, as Lord Hodge noted in Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690; [2013] UKSC 74, but there will be many circumstances in which the best interests of children must be considered entirely outside the context of Article 8 ECHR. When an Article 8 ECHR claim has been made and children are involved, section 55 will be engaged, but a consideration of the best interests of a child does not generate an Article 8 ECHR claim or appeal where none has been made.
19. Further, it follows from what we say that, even if the judge erred (which we do not accept that he did) by preventing the appellant from making submissions regarding CAO, any error would be immaterial. There is no possibility that hearing submissions regarding CAO would have led the judge to a different outcome. Mr Shabbir has had the opportunity of making submissions on CAO to us and, in our judgment, they do not affect the outcome of this appeal. We find that the judge considered the relevant evidence and reached a decision which was available to him. He did not err in law, whether for the reasons asserted in the grounds of appeal or at all. In the circumstances, we dismiss the appeal.

Notice of Decision
The appeal is dismissed

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 18 June 2026