Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000340

First-tier Tribunal No: PA/52848/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

RJ (Sri Lanka)
Respondent

Representation:
For the Appellant: Ms H. Gilmour, Senior Presenting Officer
For the Respondent: Mr N. Paramjorthy, Counsel instructed by S Satha & Co Solicitors

Heard at Field House on 21 May 2025

We shall refer to the parties as they were before the First-tier Tribunal. In this decision RJ is referred to as the Appellant and the Secretary of State is referred to as the Respondent.

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
Relevant background
1. The Appellant is a citizen of Sri Lanka born in 2006. This appeal is brought by the Respondent against the decision of First-tier Tribunal Judge Bradshaw (‘the Judge’) dated 31 October 2024 in which he allowed the Appellant’s appeal on human rights grounds.
2. The Appellant arrived in the United Kingdom in 2019 aged 13 years old. He made a protection claim on 14 November 2019, three days after his arrival, on the basis that his parents were connected to the LTTE in Sri Lanka and he would be at risk on return due to his imputed political opinion following their disappearance when he was six years old. The Appellant has lived with his uncle and his uncle’s family since he came to the UK. The Respondent refused the Appellant’s asylum claim on 20 April 2023 and determined that the Appellant’s return to Sri Lanka would not amount to a breach of his Article 8 private and family life rights.
3. The Appellant’s appeal came before the Judge on 16 October 2024 in the First-tier Tribunal (‘FTT’) at Manchester. The Judge dismissed the Appellant’s protection claim, making a number of adverse credibility findings. However, the Judge found that the Appellant’s parents had disappeared when he was six years old after which he was brought up by his grandmother who was elderly and with whom he has now lost contact. The Judge found the Appellant had no established home in Sri Lanka and had developed a private life in the UK and a family life with his uncle and his uncle’s family. The Judge did not accept that the difficulties the Appellant would face on return to Sri Lanka would be such that he would face “very significant obstacles” to integration to satisfy paragraph 276ADE(1)(vi) of the Immigration Rules, but, in allowing his Article 8 claim, determined that removal of the Appellant would lead to unjustifiably harsh consequences for him taking into account the obstacles that he would face together with other matters weighing in the Appellant’s favour, including his family life in the UK.
The grounds, submissions and error of law hearing
4. The Respondent sought permission to appeal on the ground that the Judge had made a material misdirection of law when undertaking the Article 8 proportionality balancing exercise by failing to attach “the correct weight to the Appellant’s family life when finding in favour of the Appellant”. The grounds assert that the Judge failed to consider that the Appellant’s private and family life in the UK was formed “when he was in the UK with limited leave to remain” and thus with precarious immigration status. Relying on Rajendran (s117B- family life) [2016] UKUT 00138 (IAC)(‘Rajendran’), the grounds contend that the Judge should have attached “little weight” to the Appellant’s private and family life. Further, the grounds contend that the Judge failed to identify what the unjustifiably harsh consequences would be for the Appellant in the event of his removal.
5. Permission was granted by First-tier Tribunal Judge Parkes. The permission decision states:
“3. The Judge made adverse credibility findings in respect of his asylum claim which should have informed the assessment of his credibility in the article 8 claims. The Judge appears to have attached no weight to the Appellant’s precarious status in the UK arguably affecting the assessment made. The grounds are arguable.”.
6. The error of hearing was conducted via CVP with the panel located at Field House. At the hearing we indicated to Ms Gilmour that we noted the Respondent’s grounds had not sought to raise a challenge on the basis that the Judge had fallen into error in the Article 8 assessment in not taking into account his credibility findings in respect of the Appellant’s asylum claim. Ms Gilmour confirmed that she would not pursuing this point raised in the permission decision.
7. Ms Gilmour relied on the grounds alone and submitted there were two aspects to the Respondent’s challenge. Her first submission was that the Judge had made a material error of law in that he had failed to apply Rajendran because he did not attach ‘little weight’ to the Appellant’s family life developed at a time when the he had precarious immigration status. The second aspect of the Respondent’s challenge was in relation to the Judge’s findings at [55] of the decision regarding unjustifiably harsh consequences. On this matter Ms Gilmour submitted the Judge had made “a bare assertion without providing reasons”.
8. During Ms Gilmour’s brief submissions we indicated to her our view that Rajendran was not authority to support her submission that a tribunal is required to attach “little weight” to an appellant’s family life developed whilst he has precarious immigration status (or is here unlawfully) in the way the Respondent suggests. In Rajendran the appellant’s circumstances and the nature of her family life were very different to that of the Appellant. The appellant in Rajendran, a Canadian citizen, had entered the UK on a visit visa to stay with her adult daughter and her husband. She had family remaining in Canada. In that case the Upper Tribunal determined on the facts that the FTT Judge did not err in attaching little weight to the appellant’s family life in light of her precarious immigration status and in all the circumstances of the case. We indicated that the point in Rajendran and the extensive Article 8 jurisprudence from the higher courts which post-date this decision, including the recent Court of Appeal case of Muhammad Arshad v SSHD [2025] EWCA Civ 355 (‘Arshad’), is that what weight is appropriate to give to a family relationship in the proportionality assessment depends on the particular circumstances of the case. In the case before us the Judge found that the Appellant’s family life with his uncle amounted to a de-facto parent-child relationship in light of the unchallenged findings that the Appellant has not seen his parents since he was six years of age and has lost contact with his elderly grandmother.
9. Having taking a moment to re-read parts of the decision under challenge, Ms Gilmour indicated that she could not assist us any further in respect of this aspect of the grounds.
10. In relation to the second aspect of the grounds, Ms Gilmour referred to [55] of the decision and submitted that the Judge’s finding in respect of the removal of the Appellant giving rise to unjustifiably harsh consequences was no more than a bare assertion. Considering this paragraph in the decision referred to by the Respondent in the grounds, we asked Ms Gilmour if she wanted to comment on the various matters which were referred to by the Judge at [55] including that: the Appellant had spent nearly 5 years of “the most critical phase of his development” in the UK; his lack of experience in living in Sri Lanka as an adult; that it was not the Appellant’s fault that he was sent to the UK as a child; the Appellant’s integration into life in the UK; the Appellant’s relationship with his uncle as a “quasi-parent” and the difficulty in maintaining that relationship by modern means of communication which would not be a satisfactory alternative in all the circumstances given the Appellant’s difficult upbringing with different family figures. Ms Gilmour indicated that she could not take this point any further and declined to make any further submissions.
11. Briefly, Mr Paramjorthy emphasised the age of the Appellant when he arrived in the UK and that it was not his fault that he had been sent here. He emphasised that the Appellant had spent the critical years of his development in the UK since he was 13 years old. Although the Judge had been unimpressed by the uncle’s evidence at the hearing and made certain adverse credibility findings in respect of the Appellant’s protection claim, he was satisfied that the Appellant had not been with his parents since he was six years old and had been looked after by his grandmother, who was elderly and with whom the Appellant is no longer in contact. Mr Paramjorthy accepted that if the Appellant had come to the UK as an adult it was unlikely that he would have succeeded in his Article 8 claim.
12. At the conclusion of the hearing we indicated we would dismiss the Respondent’s appeal for the reasons which were apparent from the matters we put to Ms Gilmour at the hearing and which we set out below.
Discussion and conclusions
13. Section 117 Nationality of the Immigration and Asylum Act 2002 states:
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious
14. The Judge acknowledged in the decision (at [50(b)] and [55]) that he was required to give ‘little weight’ to the Appellant’s private life by virtue of section 117B but, applying, Rhuppiah v SSHD [2018] UKSC 58, indicated that little weight does not mean no weight. At [55] the Judge records that it was not the appellant’s fault that he was sent to the UK as a child and that he had sought “to integrate into the UK in circumstances where he could not be expected to place his life and development on hold from his arrival”. We find that the Judge correctly identified the public interest in effective immigration control and the absence of the Appellant’s leave to remain in the UK as matters which weighed against him in the balancing exercise, but appropriately considered this in the context of the Appellant coming to the UK as a child who would not have played a part in the decision to do so.
15. When assessing the weight to attach the Appellant’s family life with his uncle and his uncle’s family, the Judge states “I am not bound to attach only little weight in the absence of such a provision in s117B”.
16. We find that this was a correct statement of law. There is no statutory requirement which mandates the Judge to only attach little weight to the family life of an appellant with precarious status or who is in the UK unlawfully (other than that established with a qualifying partner in certain circumstances). A tribunal is of course mandated to attach weight to the public interest pursuant to section 117B(1). We find that the Judge made explicit reference to this factor and patently attached weight to the public interest in the balancing exercise. The Judge did not indicate that the Appellant’s immigration status was not a relevant consideration but indicated that he was not required by statute to attach little weight to his family life in light of his immigration status. We find that the Judge explicitly took into account the Appellant’s immigration status in the Article 8 balancing exercise.
17. A tribunal is required to consider all of the circumstances of a case when determining what weight, if any, to attach to an appellant’s family life. It is open to a tribunal to attach no or very little weight to an appellant’s family life should the circumstances indicate such an approach, such as in Rajendran. Conversely, in some circumstances the appellant’s family life will be a weighty factor in the balancing exercise. As indicated by the Court of Appeal in Arshad at [118]:
“….There is, however, a range of different types of relationship which may amount to ‘family life’. …..The family life of parents who live together with their young children is at the core of family life. It is, self-evidently, entitled to greater weight in any proportionality balance than more distant relationships, such as the relationships between adult siblings who have spent periods of their adult lives in separate households, and the relationships between a resident uncle and young children who have both parents living at home. The fact, therefore, that a fact-finder has classified a relationship or relationships as ‘family life’ for the purposes of article 8 is only a starting point. It is necessary to understand the nature and quality of the relationship before it can be weighed against other considerations.”.
18. Having considered the evidence regarding the nature and quality of the Appellant’s family life, it is clear that the Judge was prepared to attach some weight to it in the balancing exercise and gave clear and sustainable reasons for doing so. He considered that the Appellant’s family life was developed at a time when the Appellant himself could not be held responsible for his immigration status and where he has developed a child-parent relationship with his uncle, as well as a family life with his uncle’s wife and young children, having lost his parents when he was six years old. His uncle and his wife are the only ‘parents’ the Appellant knows and he continues to live with them and has not developed an independent life of his own. We find that the Judge carefully considered the nature and quality of the Appellant’s family life together with other factors when assessing the weight to attach to that family life in considering the proportionality question.
19. We find the fact the Judge’s conclusion on the balancing exercise, referring to the “narrowest of margins”, is an indication of the care he has taken in considering each factor weighing for and against the appellant in the balancing exercise.
20. It is clear that in section 117B of the 2002 Act, Parliament deliberately distinguished between an applicant's private life, to which little weight should be given in so far as it was established at a time when a person's immigration status is precarious, and his or her family life, which is not the subject of such a requirement. That leaves it open to courts and tribunals to give such weight to a family life as is appropriate in the circumstances of the particular case.
21. The jurisprudence in respect of Article 8 firmly establishes that the tribunal is required to conduct an individualised fact sensitive assessment in conducting the balancing exercise so that regard “must be had to a fair balance that has to be struck between the competing interests of the individual and of the community as a whole” (Jeunesse v Netherlands (2015) 60 EHRR 17).
22. The question is whether the Judge struck a fair balance in the particular circumstances of the case. We find that he manifestly did and provided clear and cogent reasons for his findings in doing so.
23. In relation to the discrete point in submissions that the Judge provided no more than a “bare assertion” regarding his conclusion on the matter of unjustifiably harsh consequences, we find that, on any proper reading of the decision, particularly at [55] relied upon in the grounds themselves, this was manifestly not the case. The Judge carefully brought together his findings in this concluding paragraph to provide clear and cogent reasons for allowing the Appellant’s Article 8 claim ‘outside the Rules’. The key factors in this decision were put to the Respondent’s representative at the hearing as summarised at [10] above to which, quite properly, she declined to offer any further submissions.
24. The Respondent has failed to establish that the decision of the Judge involved the making of a material error of law. The decision of the First-tier Tribunal shall stand.
Notice of Decision

The appeal is dismissed.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 June 2025