Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No.: UI-2024-006018

First-tier Tribunal No: HU/60508/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

OLUWATIMILEYIN EMMANUEL AJEIGBE
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Olusola Joel Ajeigbe, the appellant’s father and sponsor
For the Respondent: Ms A. Everett, Senior Home Office Presenting Officer

Heard at Field House on 23 September 2026

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Nigeria, born on 22 September 2005. On 5 June 2023, aged 17 years and 8 months, he applied for entry clearance to join his father, Mr Olusola Joel Ajeigbe (“the Sponsor”), in the United Kingdom. The Sponsor has limited leave in the United Kingdom and lives here with his British wife and their two British children. The appellant lives in Nigeria with his paternal grandmother, who is the Sponsor’s mother.
2. The application was refused on 7 August 2023. By the time of the respondent’s review, the biological relationship between the appellant and Sponsor had been accepted. The outstanding issues before the First-tier Tribunal (“the FTT”) were whether the appellant met E-ECC.1.6 of Appendix FM and whether refusal breached Article 8 ECHR.
3. The appeal was determined without a hearing by First-tier Tribunal Judge L. Jones. In a decision dated 1 May 2024, the judge dismissed the appeal. The appellant appeals against that decision.
4. Permission to appeal was granted by First-tier Tribunal Judge Mills on 12 August 2024. For reasons which are not clear to me, no steps were taken by the Upper Tribunal to progress the appeal between then and 28 July 2026 when the letter acknowledging that permission had been granted was sent out. I can only apologise on behalf of the Tribunal that it has taken so long for this appeal to be heard.
Relevant legal provisions
5. At the relevant time E-ECC.1.6 required, so far as relevant, that one of the applicant’s parents be in the United Kingdom with limited leave as a partner or parent and that one of three alternative conditions be satisfied. Those included:
“(b) that the parent had had and continued to have sole responsibility for the child’s upbringing; or
(c) that there were serious and compelling family or other considerations which made exclusion of the child undesirable and suitable arrangements had been made for the child’s care.”
6. The essential question under the sole responsibility test (i.e. E-ECC.1.6(b)) is one of fact: who in practice exercises continuing control and direction over the child’s upbringing, including responsibility for the important decisions in the child’s life. The fact that another relative undertakes day-to-day care does not itself prevent a parent abroad from having sole responsibility. Conversely, even if the other biological parent has ceased to play any role, it does not follow that the UK-based parent has sole responsibility: responsibility may in practice be shared with another carer. See TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 and Buydov v Entry Clearance Officer [2012] EWCA Civ 1739 at [14]-[19].
7. As to E-ECC.1.6(c), Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC) explains that “serious” and “compelling” import a high threshold. It is insufficient that family members naturally wish to live together. The assessment focuses on the child’s circumstances, including welfare and emotional needs, and may encompass neglect or abuse, unmet needs and the stability of existing care arrangements. The circumstances must be considered cumulatively.
The First-tier Tribunal’s decision
8. The judge recorded at [5] that the issue under E-ECC.1.6 was whether the Sponsor had sole responsibility for the appellant and described that as “the only remaining issue” under that provision.
9. At [9], the judge considered the appellant’s biological mother. He noted that both the Sponsor and appellant said that the appellant’s parents were divorced and that the mother had remarried. The judge stated: “The Appellant does not say that he does not see his biological mother, nor that she has no role in his life.” The judge consequently found that the appellant had not established that his mother had ceased to be involved in his upbringing.
10. At [10], the judge considered a letter from the appellant’s school and a letter from the hospital at which he was registered. The school letter stated that the Sponsor had financially sponsored the appellant’s education. The hospital letter stated that the Sponsor ensured that healthcare expenses were paid. The judge found that those documents provided evidence of financial support but not evidence that the Sponsor made important educational or medical decisions. Nor was there evidence of payments for the appellant’s general upkeep or transactions to the school or hospital.
11. At [11], the judge considered the evidence of contact between father and son. There was one undated joint photograph. Although the index to the appellant’s bundle referred to text messages and chats, those materials were not before the Tribunal. The Sponsor said that he had visited the appellant in April 2022, but there was no evidence of other visits despite the Sponsor having lived in the United Kingdom since the appellant was three.
12. At [12], the judge found that the evidence “stops well short” of establishing sole responsibility and that it was not possible to say that the Sponsor had continuing control and direction over the appellant’s upbringing, including making all the important decisions in his life. The judge then took that together with his earlier finding concerning the possible involvement of the appellant’s mother.
13. At [13], in addressing exceptional circumstances, the judge referred to the Sponsor’s evidence that the appellant had appeared unkempt, worn and emotionally drained when seen in April 2022 and to the appellant’s evidence that he would benefit from living with his father. The judge said that this was not otherwise substantiated or supported by other evidence. The judge thereafter conducted an Article 8 assessment, noting that the appellant had been a child when he applied but was an adult by the date of the appeal.
Appeal to the Upper Tribunal
14. The appellant sought permission to appeal on three grounds:
a. Ground 1 challenges the judge’s finding at [9] that neither the appellant nor the Sponsor had stated that the appellant’s biological mother no longer played a role in his life. The appellant relies in particular upon the statement in his entry clearance application that he and his mother had not been in contact since she remarried. It is contended that the judge consequently proceeded upon a material mistake as to the evidence when determining whether the Sponsor had sole responsibility for the appellant.
b. Ground 2 concerns the alternative provision in E-ECC.1.6(c), namely whether there were serious and compelling family or other considerations which made the appellant’s exclusion undesirable. Relying upon Mundeba (cited above), the appellant contends, in essence, that insufficient consideration was given to his welfare and circumstances in Nigeria. The matters relied upon include his residence with his aged paternal grandmother, the evidence that he appeared unkempt, worn and emotionally drained, the asserted absence of adequate parental care and emotional support, and the availability of care from his father, stepmother and half-siblings in the United Kingdom.
c. Ground 3 raises a number of further criticisms of the judge’s treatment of the evidence and the appellant’s circumstances. These include reliance upon the divorce of the appellant’s parents; an explanation for the limited documentary evidence of communications between the appellant and Sponsor; the contention that the school and medical evidence demonstrated the Sponsor’s continuing involvement in the appellant’s upbringing and was not limited to financial support; and the contention that greater weight should have been given to the appellant’s best interests and to a child-centred approach. The appellant also sought to adduce further evidence, including a copy of his parents’ divorce certificate and DNA evidence concerning his relationship with the Sponsor.
15. As noted, permission to appeal was granted by First-tier Tribunal Judge Mills on 12 August 2024. Judge Mills observed that the grounds were “lengthy and somewhat convoluted” and appeared to have been drafted by the Sponsor without legal assistance. He considered that much of the challenge might fairly be characterised as disagreement, but that Ground 1 disclosed an arguable error of law. In particular, the judge arguably overlooked the appellant’s statement in his application form that he was no longer in contact with his mother when relying upon the apparent absence of such evidence as a material part of the conclusion on sole responsibility. Judge Mills considered it arguable that the First-tier Tribunal might have reached a different conclusion had that evidence been taken into account. Permission was expressly granted on all grounds.
16. Prior to the hearing, I was under the impression that the respondent had not filed a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Ms Everett informed me however that in fact there was one in existence. For whatever reason, it had not made its way on to the Tribunal’s systems and the appellant’s family members in attendance told me that they had not received it either. Ms Everett accordingly sought to email it to the Tribunal and to the appellant’s uncle, but, for reasons which were not clear to either Ms Everett or me, that was unsuccessful. Ultimately, Ms Everett was prepared to proceed without relying on it and the appellant’s family were content to proceed on that basis. In the circumstances, we proceeded on the basis that there was no rule 24 response to the appeal.
17. The appeal was attended on the appellant’s behalf by his father, step-mother and uncle. They each contributed, but the submission were principally made by the appellant’s uncle, Mr Olimuyiwa Niyan. He emphasised how much the appellant and his father wanted to be able to live together in the UK and how the appellant’s father had done what could reasonably be expected of a father living in another country.
18. On behalf of the Entry Clearance Officer, Ms Everett submitted that the FTT’s decision contained no errors of law. In relation to ground 1, she also submitted that any error was not material, because, first, in light of the fact that the question of sole parental responsibility was clearly put in issue in the Respondent’s Review, the FTT would have been bound to have concluded that it had not been shown that the appellant’s mother was not involved in his life in light of the absence of information in this respect in the witness statements, notwithstanding the assertion made in the application form to that effect. Second, she submitted that any error was not material because, even if the mother was not involved in the appellant’s life, the findings made in relation to the role played by the father did not establish that he had sole parental responsibility.
Ground 1
19. I am satisfied that there is an error in the decision of the First-tier Tribunal as submitted by the appellant under ground 1. Contrary to the judge’s statement at [9] that the appellant “does not say that he does not see his biological mother”, the appellant had in fact expressly stated in his entry clearance application (twice) that “my mum and i [sic] are not in contact since she remarried to another person”. He also described his father as the only parent with parental responsibility for him.
20. The judge therefore proceeded at [9] on an incorrect factual premise. This is not a case in which a judge simply failed to mention a piece of evidence: the judge positively stated that the appellant had not said something which he had in fact said. That is a compelling reason to displace the presumption that a judge has considered all of the evidence. In my judgment the judge failed to take into account the appellant’s statement in relation to his lack of contact with his mother.
21. That is not however the end of the analysis. To allow an appeal, I have to be satisfied both that there is an error of law and that it is material. The test for immateriality is a demanding one, namely whether it is clear on the materials before the tribunal that any rational tribunal must have come to the same conclusion: see AJ (Angola) [2014] EWCA Civ 1636 at [49].
22. In this regard, I do not accept Ms Everett’s submission that the judge was bound to have reached the same conclusion as to whether the appellant’s mother played a role in the appellant’s life had he taken into account what was said in the application form. It may be that he would have done, but he could rationally in my view have come to the conclusion that that was sufficient. In my judgment the high bar for immateriality is not met in that respect.
23. In relation to Ms Everett’s second submission on materiality however, it is important to note that the question whether the appellant had contact with his mother, in respect of which the judge made the error identified above, was not determinative of the question of sole responsibility. As TD (cited above) makes clear at [52(vi)], even if only one parent is involved in a child’s upbringing, that parent does not necessarily have sole responsibility. The relevant question is whether the Sponsor had continuing control and direction over the appellant's upbringing, including making all the important decisions in his life (see [52(ix)]) and the judge made express findings on that issue: the educational and medical evidence established payment or financial sponsorship, but did not establish that the Sponsor made important decisions; there was no documentary evidence showing discussion or decision-making between the Sponsor and the paternal grandmother, virtually no documentary evidence of regular contact, and evidence of only one visit during the period since the Sponsor had come to live in the UK when the appellant was three years old.
24. At [12] the judge drew his analysis of the sole responsibility question together. Before bringing the position of the biological mother into the analysis, the judge made the freestanding finding that the evidence “stops well short” of establishing sole responsibility and that it was not possible to find that the Sponsor exercised continuing control and direction over the appellant’s upbringing.
25. Even assuming entirely in the appellant’s favour that his biological mother had ceased to have any involvement, the judge’s findings as to the evidential deficiencies remained. In particular, there was insufficient evidence that the Sponsor exercised continuing control and direction over the appellant’s upbringing or made the important decisions in his life. In those circumstances, I am satisfied that, on the evidence before the First-tier Tribunal, any rational judge in those circumstances would have found that the appellant had not established that the Sponsor had sole responsibility for him, even if the judge had not made the error he did.
26. While I am therefore satisfied that the judge erred in law, I am also satisfied that the error was not material. Ground 1 therefore falls to be dismissed.
Ground 2
27. Ground 2 concerns the alternative requirement in E-ECC.1.6(c). The appellant relied upon Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC) and contended that the judge had disregarded material evidence concerning his age, social background and developmental history. In particular, he relied upon his evidence that he had experienced trauma, lack of love, inadequate care, lack of support and encouragement and consequent educational difficulties; the Sponsor's evidence that in April 2022 the appellant appeared unkempt, worn and emotionally drained; the fact that he was living with his paternal grandmother, who was said to be aged and to experience difficulties associated with old age; the absence of his biological mother; and the evidence of the care which would be available from the Sponsor and his family in the United Kingdom. The grounds contend that those matters demonstrated neglect, emotional harm and unmet needs and, considered cumulatively, satisfied E-ECC.1.6(c).
28. I do not accept the ground insofar as it contends that the judge disregarded that evidence. Unless there are compelling reasons to the contrary, a judge is taken to have considered all of the evidence. There is no compelling reason to depart from that assumption here. Indeed, at [13] the judge expressly considered the Sponsor’s evidence that the appellant had appeared unkempt, worn and emotionally drained when he saw him in April 2022, together with the appellant’s evidence that he would benefit from being with his father. The judge found that this was not otherwise substantiated or supported by the evidence. At [17], in considering proportionality and the appellant’s best interests, the judge returned to both matters and concluded, in the light of his earlier findings and the limited evidence of the Sponsor's involvement in the appellant's life, that the appellant’s best interests lay in remaining in his existing circumstances. The judge expressly refers to the appellant’s witness statement. It therefore cannot fairly be said that the evidence relied on in ground 2 was overlooked or not taken into account.
29. To the extent that this ground argues that the appellant’s specific circumstances “meet the threshold” of serious and compelling family or other considerations, that is not an error of law, but an attempt to reargue the case. For me to set aside the findings of the judge on the basis that they are simply wrong, rather than that the judge made some other error of law, I would have to be satisfied that the finding was perverse. That is a high threshold and is not in my judgment met here. The judge came to a conclusion on the evidence that he was entitled to reach.
30. Ground 2 is therefore not made out.
Ground 3
31. Ground 3 raises a number of matters concerning the evidence. The appellant relies upon a divorce certificate which was not before the judge, explains the limited availability of communications evidence, relies upon the school and medical evidence as demonstrating the Sponsor’s involvement, and refers more generally to a child-centred approach. The application for permission also sought to adduce DNA evidence.
32. As to the divorce certificate and DNA evidence, as documents which were not before the judge they are not capable of demonstrating any error of law in his decision. In any event, the divorce and the biological relationship between the appellant and his father were not dispute. The Respondent’s Review accepted the appellant’s mother as the Sponsor’s “ex-wife”. The issue, rather, was whether she had ceased to play any practical role in the appellant’s upbringing and whether the Sponsor himself exercised continuing sole control and direction. Documentary confirmation of the divorce therefore adds nothing material to that question. Likewise, the DNA evidence is immaterial because the biological relationship between the appellant and the Sponsor had already been accepted by the Respondent.
33. As to the limited availability of evidence of communications between the appellant and the Sponsor, the explanation that the appellant did not previously have a mobile and communicated through his grandmother’s telephone could, in principle, have explained why extensive message transcripts were not available, but this misses the point which the judge made about it in [11]. There, the judge noted that the index to the appellant’s bundle identified “text messages and chats between appellant and father”, but that those materials were not in the evidence before the Tribunal. The judge was entitled to proceed on the evidence actually before him. The explanation now advanced as to why extensive message records did not exist does not alter the fact that the messages that presumably do exist as they were included in the bundle index were unavailable and could not assist the judge in determining whether the Sponsor exercised sole responsibility or any other issue.
34. The school and medical letters were expressly considered by the judge at [10]. The judge did not overlook them. He found that they demonstrated financial support for education and healthcare but did not establish that the Sponsor made the important educational or medical decisions. That was a conclusion open to the judge on the terms of those documents. Ground 3 in this respect amounts to disagreement with the judge’s assessment of this evidence rather than an error of law.
35. The broader reliance upon the best interests of children and a child-centred approach does not identify a separate error of law. The judge expressly took account of the fact that the appellant had been a child at the date of application and addressed his best interests as part of the Article 8 assessment. The reasoning was concise, but, in light of the findings which were properly open to the judge concerning the limited evidence of the Sponsor’s practical parental involvement and the evidence before him as to the appellant’s existing circumstances in Nigeria, the conclusion reached was one which was plainly open to him.
36. Ground 3 therefore discloses no material error of law.

Notice of Decision
The decision of First-tier Tribunal Judge L Jones dated 1 May 2024 does not involve the making of a material error of law and shall stand.

Paul Skinner

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2026