Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000375

First-tier Tribunal No: EA/00211/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9 September 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

Z H
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Sood, Counsel
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 18 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, her daughter and granddaughter are 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 them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Anonymity Order

1. Although many of the details in this case are in the public domain, I make an anonymity order because ZH, her daughter and granddaughter are the subject of a family court order giving ZH parental responsibility for her granddaughter. The family court have given permission for their order to be disclosed to the respondent and the tribunal, but the names of the parties and the child involved are otherwise, by their order, not to be disclosed without the permission of the court. Without anonymity their names will inevitably be disclosed. To avoid jigsaw identification, I minimise identifying details in this decision as far as possible.

Background
2. ZH’s son-in-law was a well-respected hospital consultant. Sadly, he passed away from COVID contracted through his work. ZH arrived in the UK on 5 June 2020 as a visitor to help her bereaved daughter (herself a hospital consultant) and granddaughter (both British citizens) to cope. ZH applied for further leave to remain and she was granted leave to remain outside the rules on a compassionate basis to continue assisting her daughter and granddaughter from 9 April 2021 to 8 October 2023. The letter granting leave stated “Providing you continue to meet the relevant legislation at the time of application, you should apply for further leave prior to the expiry of your current leave via a charged application. Subject to meeting that criteria you will be given a further period of leave of 30 months. You may need to make further applications and you will need to satisfy the immigration rules to take your leave to the necessary 120 months required for settlement.” ZH applied for further permission to stay by application of 4 October 2023. This was refused on 5 January 2024. ZH appealed unsuccessfully; the First-Tier Tribunal Judge (“the FTJ”) dismissed her appeal by decision promulgated on 30 August 2024. On 19 March 2025, the Upper Tribunal granted her permission to appeal.

This hearing; Error of Law and Remaking
3. Ms Simbi told me that having reviewed the case she would concede the error of law and then concede that the appeal should be allowed on remaking bearing in mind the order of the family court.

4. I agreed that was a very sensible course to take. I considered that there was an error of law in the decision of the FTJ. As the grounds set out, there was a clear argument before the FTJ that the appellant’s circumstances had not materially altered since the last grant of leave, so that her leave should have been continued. The FTJ did not grapple with this point and explain how the circumstances had materially altered. Findings on this point were critical to the correct weighting of the public interest balance. The FTJ also, as the grounds aver, made no findings as to where the best interests of the child lay, save to say that there was no medical or supporting evidence which would support the suggestion that the appellant’s absence would have a significant impact or detrimental impact on the British child or would be contrary to her best interests. However, although there was no medical evidence there was witness evidence, and evidence not least from the child herself by way of a letter, suggesting the detrimental impact the appellant’s departure would have on the child. Whilst the FTJ did not have to accept that evidence, she needed specifically to consider it and to make specific findings about the child’s best interests so the scales could be properly weighted. She did not do so.

5. I agree therefore that the judge made errors of law such that her decision should be set aside.

6. On remaking Ms Simbi agrees that the appeal should be allowed on human rights grounds. I agree. Whilst there might be various bases for allowing the appeal, ZH has now been awarded parental responsibility by the family court for her granddaughter. She fully fulfils the role of a parent to her bereaved granddaughter, and I consider is in a genuine and subsisting parental relationship with her granddaughter. It is possible for relatives other than biological parents to have a parental relationship with a child – that depends on the individual circumstances and whether the role the individual plays establishes that they have stepped into the shoes of a parent – see R (on the application of RK) v Secretary of State for the Home Department (s 117B(6); “parental relationship”) IJR [2016] UKUT 31. As I have already noted, here clearly ZH has stepped into the shoes of a parent. As ZH has a genuine and subsisting parental relationship with her granddaughter a qualifying child, and it is not reasonable to expect that child to leave the UK, the provisions of section 117B (6) Nationality Asylum and Immigration Act 2002 mean that the public interest does not require ZH’s removal. In all the circumstances her removal is disproportionate and would breach Article 8 ECHR.

Costs?
7. Ms Sood had, before the First-Tier Tribunal argued that the respondent should pay the costs on the basis of unreasonable conduct in defending the appeal and/or acting unreasonably in the conduct of the appeal (rule 9 (2) (b) Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 (3) (d) Tribunal Procedure (Upper Tribunal) Rules 2008). She argued that the proceedings in the Upper Tribunal had also been conducted unreasonably.

8. Whilst understandably the First-Tier Tribunal did not make an order for costs given its findings, incorporated in Ms Sood’s application was an application for the costs of the case management hearing which could have been separated out as it was a non-compliance hearing due to the respondent’s conduct (not producing a bundle, not producing a review). The respondent only began to engage with the appellant’s case after that hearing and because of directions from the judge conducting that hearing. I could see that there was force in the argument that the respondent had conducted themselves unreasonably so that an otherwise unnecessary case management hearing had to be held. I could also see that there was potentially force in the argument that, the family court order having been made in December 2024 and sent promptly to the respondent, then once the Upper Tribunal granted permission in March 2025 it was unreasonable not to have reviewed the case again in the light of the grant of permission and the evidence from the family court, and on reviewing the case it should arguably have been conceded at that point. Ms Sood helpfully indicated that she did not see that she could seek the costs of the hearing in the First-Tier Tribunal or the costs after that before the Upper Tribunal granted permission and I told her that there was no basis in the rules for claiming any costs which were incurred before the appeal was entered. I put it to Ms Sood that in the review of June 2024 the respondent had engaged with the argument that the circumstances had changed since the earlier decision, just disagreed with it. She maintained that they had not engaged properly with those circumstances.

9. I consider therefore that the respondent should certainly answer why they should not pay the costs of the case management hearing and the costs reasonably incurred since 19 March 2025 when the Upper Tribunal granted permission. I see far less force in the argument that the respondent conducted themselves unreasonably in defending the proceedings at all, but given my comments about parts of the proceedings I think it is right not at this stage to limit the appellant as to the costs which are potentially recoverable. Ms Sood should have time to put in a schedule of costs with a breakdown of the costs she says should be paid by the respondent and to include any further written submissions she wishes to make. We agreed that a deadline of 5 September would be sufficient. The respondent should respond by 22 September both as to the principle of whether she should pay costs or any part of the costs on the basis of unreasonable conduct and as to the amount. Clearly the parties can reach agreement on all or part of the costs, but as I explained to the representatives, the tribunal still needs to make an order. There is no need for any further hearing, a decision can be made on the papers.

Notice of Decision

The judge’s decision contains errors of law and is set aside.

On remaking and as conceded by the respondent, the appeal is allowed on human rights grounds.

Directions on costs

1) The appellant has until 5 September 4pm to file and serve such further written submissions as she wishes on the question of unreasonable costs and the amount of such costs;
2) The respondent must respond to those submissions by 22 September 4pm;
3) The question of unreasonable costs is to be referred to me to decide on the papers after 22 September.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 August 2025