Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No:
UI-2024-005939, UI-2024-005940,
UI-2024-005941, UI-2024-005942

First-tier Tribunal No:
HU/54122/2024, HU/61100/2023 HU/61099/2023, HU/61101/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

GS, AS, SS, FS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Appiah of Counsel, Vine Court Chambers.
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer.

Heard at Field House on 6 March 2025

Order Regarding Anonymity

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

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

INTRODUCTION

1. The Appellants appeal against the Decision of the First-tier Tribunal, dated 29 October 2024 (“the Decision”), dismissing their appeal against the Respondent’s decisions refusing entry clearance.

2. The first Appellant (“A1”) claims to be the wife of her UK Sponsor (“S”) whilst Appellants 2 – 4 (“A2 – 4”), claim to be A1’s biological children and S’s stepchildren.

BACKGROUND

3. On 26 October 2022, S was granted Refugee Leave to Remain in the UK as an undocumented Kuwaiti Bidoon.

4. On 13 March 2023 A1 submitted an online application for entry clearance as “the partner of someone in the UK with refugee leave or with humanitarian protection (family reunion)”.

5. On 10 April 2024, the Respondent (“R”) refused A1’s application (“RFRL1”), under Appendix “Family Reunion” provision FRP [3.1]. In this regard RFRL1 states,

“We have not satisfactorily established your identity and nationality because you have provided no form of identification with the evidence you have submitted. You have failed to submit any identification document to establish your identity and support your claim to be related to the Sponsor. Where identification documents are not available to submit with an application, the onus will be on the Appellant to provide a reasonable alternative and explanation of their absence”

6. The RFRL1 goes on to state that on 25 March 2024, R wrote to A1’s legal representatives requesting a clear form of ID and that on 8 April 2024, A1’s representatives responded by sharing S’s WS dated 7 April 2024. The Sponsor’s WS asserted that,

“My wife could not get identification documents in Kuwait because she is an undocumented Bidoon. The authorities will not allow her to have documents to prove her identity and she cannot get a passport or travel document. It is also difficult for my wife to get UHCR or other documents in Iraq”

7. In the light of the rejection of A1’s identity and relationship with S, R found that refusal of entry clearance would not breach Article 8.

8. On 15 March 2023, A’s 2 - 4 each submitted separate online applications as a “child of a relative (who is not your parent) with limited leave to enter or remain in the UK as a refugee or humanitarian protection”. In separate decisions dated 21 October 2022 (collectively referred to as “RFRL2”), R refused their applications under Appendix “Child Staying with or Joining a Non-Parent”. In all material ways, the decisions for A’s 2 – 4 are identical.

9. In refusing A’s 2 – 4, R found that CNP [3.1] was not met because, “you have provided no evidence to establish your age, marital status or identity [or] relationship to your sponsor or your stated mother”. R further found that CNP [3.2] was also not met because, “I am not satisfied you can and will be accommodated and maintained adequately by your UK based relative, without access to public funds and in accommodation which they or occupies exclusively”.

10. RFRL2 concluded that, “I am not satisfied that you have demonstrated your relationship to your UK based Sponsor or that you have any level of dependency on them. I am satisfied that your stated parents will be able to continue to provide you with care”. In the light of this finding R found, “Article 8 does not apply in this case as I am not satisfied that you have a genuine family life with your sponsor”.

11. At a CMR hearing convened on 17 April 2024, the Appellants’ four appeals were linked. The linked appeals then came before the FTT on 22 October 2024, and in a Decision dated 29 October 2024, the Appellants’ Article 8 appeals were dismissed.

FIRST-TIER TRIBUNAL DECISION DATED 29/10/24

12. For the purposes of the pleaded error of law grounds before us, we summarise the material paragraphs of the FTT’s Decision as follows:

At [2], the Appellants initially served almost “no documents”. Following Directions in June 2024, “very late in the day […..] a significant number of documents were lodged in a bundle, together with a separate bundle relating to DNA tests in respect of each of the four Appellants and this supplemented the hearing bundle, almost all of which had been provided by R.”

At [3], upon canvassing the issues with the parties, “they remain”,

i. who are the four Appellants?
ii. are they related to each other as claimed?
iii. and are they related to the sponsor as claimed?

13. In dismissing the linked appeals, at [13] – [21] the FTIJ makes the following findings of fact,

At [14], in the light of the DNA evidence “the four Appellants are related as claimed. They are a mother and her three minor children.”

At [15], in the light of the UNHCR letter, “the relationship between the Appellants is established and so is their identity in each case.”

At [16], “it follows that it all hinges upon whether it has been demonstrated that, on the balance of probabilities, the first Appellant and the Sponsor are spouses or partners as claimed. That relationship must have been formed before the sponsor left the family”.

At [17], “this has not been demonstrated. The only evidence available is the oral testimony of the sponsor that he married his late brother’s wife in a ceremony solemnised by a sheikh at home. No one who knows them has attested to the fact that they are married. He told me he could not remember when he was married.”

At [18], S produced only one receipt demonstrating financial contributions from his benefits. None of the 6- 7 friends who allegedly took money to the Appellants came forward to give evidence.

At [19], the photographs show some contact between the Sponsor and Appellants, but they are undated. However, they “do not show the relationship between the sponsor and the first Appellant and there is no reliable evidence [……] about his relationship with her children over time”.

[20], “on the very scant evidence available to me I am not satisfied that the Sponsor and the first Appellant are married or in an enduring relationship akin to marriage. I am not satisfied that he has taken responsibility for any of the Appellants beyond sponsoring their applications.”

At [21], “there is nothing that establishes the claim of that marriage, almost nothing that speaks to continuing maintenance and nothing that otherwise establishes the relationships relied upon. It follows that I conclude that the Appellants had not shown that they meet the requirements of the Rules for the leave that they seek. I find as a fact that the first Appellant and the Sponsor are not married or partners within the meaning of the Rules. The three younger Appellants are not his stepchildren as claimed”.

PERMISSION TO APPEAL TO THE UPPER TRIBUNAL

14. On 25 November 2024, in grounds of appeal settled by Mr C Appiah of Counsel, the Appellants applied to the FTT for permission to appeal the Decision of the FTT.

15. On 31 December 2024, permission to appeal was granted without restriction. In particular, the grant of permission found it arguable that the FTT failed to consider the materials referred to at [2] of the Decision and failed to consider whether the decisions under appeal breached the Appellants’ Article 8 rights, given that “the issue is referred to in both the initial grounds of appeal to the First-tier Tribunal and the R’s Review, and the record made by the Judge at their para. 9 indicates that the issue was still considered to be live by the representatives when oral submissions were made”.

GROUNDS OF APPEAL

16. In summary the Appellants’ grounds of appeal argue that:

i. The FTIJ failed to take into account material evidence:

a. “Permission was granted for the Appellants to rely on a Supplementary Bundle including the Respondent’s Review dated 12 April 2024, Respondent’s Bundles and Appellants’ Bundles filed for each Appellant on the MyHMCTS portal.”

b. “The comments at [para 2] raise doubt as to whether the FTTJ considered all the relationship evidence, particularly the Travel ticket (AB p58-59), Preliminary Information Questionnaire (AB p74-79), SEF Asylum Interview (RB p52 – 53 at AIR 80-84). The evidence was crucial as it relates to the nature of the relationship as being either married, unmarried partners, stepchildren or non-biological children forming part of the refugee's family unit when he left Kuwait.”

ii. The FTIJ failed to take into account the Best Interests of the Children under s.55 of the Borders, Citizenship and Immigration Act 2009.

a. “The principles set out in Mundeeba (s55 and para 297(i)(f) [2013] UKUT 00088 (IAC) deal with the approach to the statutory duty to assess whether family or other considerations make a child’s exclusion undesirable and the best interests of children as a primary consideration.”

iii. The FTIJ failed to consider exceptional circumstances.

a. The Respondent did not dispute evidence of A2 - 4 being minors, or the UNHCR Family Certificate showing them as asylum seekers or their claims to be undocumented Bidoons from Kuwait.

b. The “Family reunion: for individuals with protection status in the UK version 10.0” policy (the “Policy”), published on 17 July 2023, requires a consideration of “compelling compassionate” factors, where the rubric of the rules is not met.

c. The FTTJ erred by failing to consider these factors in a proportionality assessment under Article 8.

17. In a rule 24 reply dated 6 January 2025, R argued,

• Grounds 2 and 3 are parasitic upon ground 1.
• Having found that the Appellants were not related to the Sponsor, it was open to the FTIJ to find that Article 8 was not engaged.
• Best Interests are therefore immaterial.
• The FTIJ is not required to detail every item of evidence.
• The FTIJ evidently considered the Supplementary bundle as he referred to the UNHCR certificate, DNA evidence, photos and money transfer.
• The FTTJ gives sufficient reasons for finding the burden of proving that the Appellant (adult) was married to the sponsor and that the relationship subsisted had not been discharged.

18. The matter now comes before us to determine whether there is an error of law in the Decision pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If we find an error, we must then determine whether the error is material, such that the Decision should be set aside. If the decision is set aside, we must decide whether to remake the decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.

19. We had before us a consolidated bundle (“CB”) comprising of 332 pages which, notwithstanding its inclusion of the procedural documents to the Upper Tribunal, was incomplete and incredibly difficult to navigate. Despite the grounds of appeal referring to the bundles of A’s 2 - 4, these were not included in the CB. We were therefore required to seek out the papers on MyHMCTS to ensure that we had sight of all the papers before the FTT. Ms Everett for R further confirmed that she had not received a copy of the CB and like us, was forced to seek out the documents on MyHMCTS.

20. Upon satisfying ourselves that the parties had read all the relevant papers, we heard submissions from Mr Appiah for the Appellants and Ms Everett for R. We then indicated that we would reserve our decision and provide that in writing with our reasons. We now set our reasoning and decision as follows.

SUBMISSIONS

21. In terms of ground 1, Mr Appiah took us to S’s Preliminary Information Questionnaire (“PIQ”), dated 18 August 2022, at CB [162] and [165]. This, it was argued, was evidence confirming the pre-flight family relationships between S and the 4 Appellants which the FTIJ had failed to consider. Mr Appiah argued that the FTIJ erroneously focused on the DNA evidence, confirming that A’s 2 - 4 were not S’s biological children, when it was never the Appellants’ case that they were. Mr Appiah underscored the difficulty facing undocumented Bidoons when trying to produce documentation and argued that even if S was not married to A1, the immigration rules still recognised A1 as a qualifying partner.

22. In terms of grounds 2 and 3, we asked Mr Appiah if he accepted, as argued in R’s Review, that these grounds were parasitic upon ground 1 because both grounds were specific to an Article 8 proportionality exercise in circumstances where the FTIJ had effectively found no family life.

23. In response, Mr Appiah appeared to disagree with the premise of our question and suggested to us that it was incumbent upon the FTIJ to apply R’s Policy and consider exceptional circumstances in any event.

24. In response, Ms Everett argued that Mr Appiah’s arguments in relation to grounds 2 and 3 disclosed a misunderstanding of Article 8. This was because the FTIJ could only consider s.55 and R’s Policy if he found family life first.

25. In terms of ground 1, Ms Everett accepted that the FTIJ did not expressly refer to the AIR, PIQ and travel itinerary evidence but argued that consideration of these documents was implicit in the FTIJ’s findings. It was unnecessary, Ms Everett said, for an FTIJ to expressly refer each piece of documentary evidence.

26. In response, Mr Appiah maintained his position in relation to grounds 2 and 3.

DISCUSSION AND FINDINGS

Ground 1:

27. As we expressed to Ms Everett at the hearing, our provisional view was that we had concerns that the Decision indicated that the FTIJ had not considered all the evidence.

28. We should point out however, that the FTIJ was evidently not assisted by the production of bundles at the FTT, as he referred to at [2] of the Decision. These 4 appeals were linked in April 2024, 2 months after A’s 2 – 4 had already uploaded separate bundles onto MyHMCTS. The bundles for all 4 Appellants were not included in a single consolidated stitched hearing bundle before the FTT. Equally, it is evident that the supplementary Appellants’ bundle was only uploaded on 21 October 2024 onto A1’s MyHMCTS page, one day before these appeals were heard.

29. In the light of the Reform process and the overriding objective, we consider it was incumbent upon the Appellants’ representatives to have assisted the FTT by producing a Practice Direction compliant bundle, which should have included all the evidence relied upon without duplication. It is wholly unsatisfactory, that it was left to the FTIJ to seek out various bits of duplicated evidence, uploaded at various times, from four distinct appeals on MyHMCTS.

30. Notwithstanding this, we are satisfied that the FTIJ did have before him S’s asylum interview, PIQ and travel itinerary, as they were included within R’s bundle as contained in the stitched hearing bundle before the FTT. Equally, we recognise that the amended ASA dated 21 June 2024 at [7], expressly relied upon the evidence contained within S’s asylum claim.

31. We find that it is evident that the PIQ at CB [162] and [165] corroborates S’s marriage to A1 in 2017 following the death of her husband (S’s brother); the stepparent relationships between S and A’s 2 – 4; S’s last contact with the Appellants; the address of A1 and the Appellants’ status as undocumented Bidoons.

32. This evidence is further corroborated by S’s responses in his AIR dated 19 October 2022 (CB [102]). We note that Q2 of the AIR confirms the truth of the PIQ and Q80 states, “I have 2 wives, one wife I have 5 children from one wife, the second wife she was the wife of my deceased brother, when my brother passed away, I married her, and she has 3 daughters who I also take care of.”

33. We reject Ms Everetts suggestion that the FTIJ’s findings implicitly had regard to this evidence. It is clear to us that the FTIJ’s finding at [17] that “the only evidence available is the oral testimony of the sponsor that he married his late brother’s wife…” clearly demonstrates that he was unaware of this evidence.

34. Whilst Ms Everett is correct to say that it is not incumbent upon an FTIJ to refer to every piece of documentary evidence, we are mindful of the Presidential guidance in QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC) at headnote (3), which states,

“The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.”

35. Having regard to the accepted fact that S is an undocumented Bidoon and the alleged fact that the Appellants are also undocumented Bidoons from S’s pre-flight family unit, we consider that there was a failure by the FTIJ to apply anxious scrutiny to the limited evidence of familial relationship before him. The relevance of the PIQ and AIR is that they corroborate the principal issue in dispute, family life. The FTIJ’s conclusions were contrary to the thrust of this evidence, no reasons are given for rejecting this evidence and no explanation was provided as to why this evidence did not bring about a different outcome.

36. We find that it cannot be said that the outcome of this appeal would inevitably have been the same had the FTIJ considered these documents. We therefore find that the FTIJ materially erred in his assessment of family life.

Ground 2 and 3:

37. Having found that the FTIJ materially erred in his assessment of family life, we find it is unnecessary for us to consider grounds 2 and 3.

38. However, for completeness we reject Mr Appiah’s submission that it was incumbent upon the FTIJ to consider s.55 and R’s Policy; either as relevant to the assessment of family life under Article 8(1) or as some kind of free-standing assessment.

39. It is plain to us that the FTIJ did not consider s.55 or R’s Policy because, following the sequential questions posed in Razgar [2004] UKHL 27 at [17], the Appellants failed under Article 8(1) on account of Razgar question 1 being answered in the negative.

40. We find Mr Appiah’s submission inconsistent with the guidance in Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC), which confirms the relevance of the matters raised under grounds 2 and 3, as specific to an assessment under Article 8(2),

(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 ("NIAA 2002") can be determined only through the provisions of the ECHR; usually Article 8.

(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State's decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).

41. We are reinforced in this view by the Court of Appeal’s reasoning in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 at [19] – [36].

CONCLUSION

42. In the light of our finding that the FTIJ erred in his assessment of family life, given the scope of the fact-finding exercise required to remake this appeal, we consider it appropriate to remit these linked appeals back to the First-tier Tribunal, with the following findings of fact preserved:

• At [14], “the four Appellants are related as claimed. They are a mother and her three minor children.”
• At [15], “the relationship between the Appellants is established and so is their identity in each case.”

NOTICE OF DECISION

1. The Decision of the First-tier Tribunal dated 29 October 2024 involved the making of an error of law.

2. We set aside the Decision but preserve the findings of fact at [14] and [15], as set out at [42] above.

3. We remit the appeal to the First-tier Tribunal to be heard by a differently constituted Tribunal.

D. Clarke
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 March 2025