Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005997

First-tier Tribunal No: PA/00755/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th May 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 16 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

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

DECISION AND REASONS
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to their country of origin. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 26 April 2024, of First-tier Tribunal Judge Fisher (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
Background
3. The broad procedural background to the appeal is not in dispute between the parties. In summary, the appellant’s primary case was that he could not return to Tunisia because of the risk he would face as a recognised victim of trafficking. A second dimension of his appeal related to the relationship he had with his young son who lives with his mother in the UK.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 12 April 2025 before dismissing the appeal on all grounds in a decision promulgated on 26 April 2025. For reasons which will become clear from the basis on which permission has been granted, the present proceedings only touch on the judge’s approach to the Article 8 dimension of the underlying FTT proceedings. It follows that I will not address the matters which flowed from the judge’s assessment of the international protection ground of appeal unless relevant to the human rights ground. With that in mind, the following key matters emerge from the decision:
• In summarising the evidence going to the Article 8 ground of appeal, the judge noted that the appellant had a three-year-old son who he believed to be a British citizen. The appellant was no longer in a relationship with the child’s mother, an El Salvadorian refugee. In evidence, the appellant said that he did not see his son very often because he could not afford the travel costs between South Shields and Newcastle. He produced photographic evidence of them together. [3]
• The judge rejected the suggestion that the child was British because he was born before his mother had acquired status in the UK. [4]
• The judge considered various inconsistencies (at [9]-[10]) spread across the appellant’s various accounts going to his protection claim and noted concerns which had a “very significant adverse effect on his overall reliability and credibility as a witness”, at [11]. Further doubts were expressed about his credibility in light of his failure to make a protection claim in various safe countries through which he passed en route to the UK ([12]). The appellant’s core narrative account going to his fears on return to Tunisia was roundly rejected, at [13]. Sufficiency of protection and internal relocation were also held against the appellant as alternative reasons for dismissing the protection ground of appeal.
• Turning to the Article 8 human rights claim, the judge noted that the appellant’s son was not a qualifying child for the purposes of the Immigration Rules or the statutory scheme because he was neither British nor had he been resident in the UK for seven years. [19]
• The judge assessed the merits of the Article 8 claim and the strength of the appellant’s relationship with his son between [21] and [24] in the following terms:
The Appellant’s son is three years old, and I appreciate that he displayed a protective attitude towards his child during the hearing. Whilst I accept that family life exists between them, I find that its quality is very limited. The Appellant and his son are not living together, and it was his evidence that he sees his son infrequently, perhaps once a fortnight or once a month. He said that there had also been a period of six months when he had not seen his son at all because he did not have an ARC card. There was a paucity of evidence about any private life. The decision would, I accept, amount to an interference, but it would be in accordance with the legislative framework and in pursuit of the legitimate aim of maintaining the economic well-being of the UK through a system of robust and consistent immigration control. In assessing the proportionality of the decision, I have considered the best interests of the Appellant’s son as a primary consideration, meaning that I have considered them first.
As I have already noted, the child is not a British citizen. Given his age, his best interests are served by remaining with his mother. I accept that it would be in his interest to have involvement with his father, but a relationship of this quality and frequency could be maintained by modern means of communication or visits.
Conversely, Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 provides that the maintenance of effective immigration controls is in the public interest. Given that it is expressed in primary legislation, I am satisfied that I should attach considerable weight to it. The Appellant cannot meet any of the requirements of the Immigration Rules on family or private life grounds and, on the basis of my findings, he has entered the UK illegally and advanced a fabricated asylum claim in an attempt to remain in the United Kingdom. He may speak some English, but that is a neutral factor at best under Section 117B(2). He is not financially independent under Section 117B(3) and Section 117B(4) provides little weight to the Appellant’s private life given that it has been established whilst he has been in the UK unlawfully.
In all of the circumstances, I find that the Appellant’s limited private and family life considerations are outweighed by the need to maintain effective immigration controls. Accordingly, I am also unable to uphold the appeal on Article 8 grounds outside the Immigration Rules.
Appeal to the Upper Tribunal
5. The appellant, who continued to be unrepresented, applied for permission to appeal by arguing that the judge had not fully considered his financial circumstances in the findings which went to how frequently he saw his son. He fervently expressed his desire to be able to maintain a relationship with his child. He further complained that the judge had reached the wrong conclusion on the protection claim. The grounds did not attract permission on application to the First-tier Tribunal.
6. In a decision dated 18 March 2025, Upper Tribunal Judge Lindsley granted permission for the Article 8 challenge to be argued. The following observations (at [7]) were made in granting permission:
I find that arguable the First-tier Tribunal erred in law when conducting the Article 8 ECHR proportionality exercise as it is found that the relationship, currently conducted by face to face visits, could be conducted by “modern means of communication or visits”. It is arguably unreasoned or irrational to have found a three year old could have a relationship with his father via telephone or video calls, and also that there is any possibility of visits given the appellant is not in a relationship with his child’s El Salvadorean refugee mother, who is resident in the UK, and given the appellant would arguably not qualify for a visit visa to come back to the UK.
7. Further to the grant of permission, the appellant served further evidence in the shape of photographic and video evidence of him with his son.
8. At the error of law hearing, I heard oral submissions from both parties. Because the appellant was unrepresented, I canvassed with him whether he would find it easier to respond to the respondent’s arguments in a change to the standard procedure. He said that he would prefer to put his case in this way. He was further assisted by his partner whom I gave permission to act as a McKenzie friend. I address any submissions of significance in the discussion section below.
Discussion
2. Article 8 of the ECHR provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
3. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society.
4. S.117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.  
5. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue. It is well-settled in this jurisdiction that the assessment of proportionality is best undertaken by adopting a balancing exercise which takes into account the factors weighing in favour of the appellant’s and their family’s personal interests against the public interest in maintaining effective immigration controls.
8. If the fifth question relating to proportionality is reached, Lord Bingham, in his judgment in Huang v SSHD [2007] 2 AC 167 at paragraph 20, provided further guidance as to how this should be assessed:  
[…] the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. 
9. In CAO v SSHD [2024] UKSC 32, the Supreme Court recently considered how tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment:
[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.
10. A key reason provided in support of the grant of permission was that the judge arguably adopted an irrational or unreasoned approach in finding that the father/son relationship could be maintained by modern means of communication and visits. Mr McVeety argued that the judge’s conclusion was built on the previous finding that the current quality of that relationship was “very limited”. It is to be borne in mind that the judge had limited evidence going to the strength of this relationship beyond the account of the appellant himself. There was nothing from the child’s mother. The very limited quality of the relationship was informed by an assessment of how frequently the appellant saw his son and drew on a significant period where there were no visits. It was rationally open to the judge to reach the conclusion that while family life existed, it was not of the strongest quality.
11. Mr McVeety forcefully argued that it was open to the judge to consider the possibility of visits in the future. He contended that it would be speculative to leap to the conclusion that the appellant would not be granted a visit visa to come to the UK. Equally, there was nothing to prevent the child and his mother travelling to Tunisia to see the appellant. While I agree that each scenario is possible, the prospect struck me as remote that the appellant would be granted permission to visit the UK when a decision-maker would have to consider whether he had a genuine intention to return to Tunisia when seen against his failed attempt to remain in the UK as a refugee. I also broadly accept the appellant’s argument that it was most unlikely that the child’s mother would facilitate visits to Tunisia in circumstances where she did not even support his appeal to remain in the UK to continue the parental relationship they had cultivated by regular visits. Mr McVeety was right to point to the dangers of speculation about what may happen in the future, but equally, decision-makers must not close their eyes to the real world in which visits after the appellant’s return to Tunisia was a most unlikely prospective scenario.
12. In assessing the best interests of this child and the overall proportionality of the refusal decision, the judge was, I find, bound to consider the reality that the dismissal of the appeal would mean that the relationship currently enjoyed by regular visits would not continue in any real sense. Mr McVeety recognised that phone calls between the appellant and such a young child would be unlikely to be effective in maintaining the relationship they had developed face-to-face. However, he pointed to the emergence of video calls as a better substitute. I disagree that there is any equivalence between regular face-to-face visits, even if only at most a couple of times a month, and video calls.
13. When I consider these points, I am bound to conclude that the findings reached at [22] of the judge’s decision involved a material error of law because it was irrational to conclude that the relationship currently enjoyed could be maintained by modern means of communication and visits. The judge was entitled to conclude that the current quality of the relationship was limited due to the frequency of contact, but even this limited form of contact was fundamentally different in kind to the contact which would come in the future. Quite apart from the relationship between father and son being maintained in any meaningful sense, it would be forever changed upon the appellant’s return to Tunisia. This was the inescapable proposition with which the judge had to grapple in assessing the best interests of the child who would lose the face-to-face contact he currently enjoys with his father on a regular basis in the UK. This primary consideration was not sufficiently assessed by the brief observation, at [22] that “it would be in his interest to have involvement with his father” or that his best interests lie with continuing to live with his mother.
Disposal
14. There is no reason to disturb the lawful findings reached by the judge on the protection dimension of the claim. The dismissal of the international protection ground of appeal stands and the findings which underpinned this decision are preserved. However, for the reasons set out above, I set aside the decision to dismiss the appeal on human rights grounds. This decision will need to be retaken on the strength of the evidence available at the relevant time.
15. I see no reason to depart from the starting point identified at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal that the decision should be remade in the Upper Tribunal.  
Notice of Decision 
The decision to dismiss the appeal on international protection grounds stands and the findings of fact which underpinned that decision are preserved. The decision to dismiss the appeal on human rights grounds is set aside as it involved a material error of law. The decision will be remade in the Upper Tribunal at a resumed hearing. 
Directions: 
1) The matter is to be listed for 3 hours on the first available date after 9 June 2025. The hearing is to be listed at Phoenix House, Bradford. The resumed hearing is reserved to Upper Tribunal Judge Lodato. 
2) Within 14 days of the resumed hearing, the parties must upload to CE-File and directly serve on the other party any further evidence they intend to rely upon. 
3) An Arabic (Tunisian) interpreter is to be booked for the hearing.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 May 2025