Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000423

First-tier Tribunal No: HU/62707/2023
LH/06382/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

Mazidah Oluwatoyin Saibu
(NO ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer (ECO)
Respondent

Representation:
For the Appellant: Mr O Ogunbiyi, counsel instructed via direct access.
For the Respondent: Ms A Nolan, Senior Presenting Officer

Heard at Field House on 9 May 2025

DECISION AND REASONS
1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge Dyer (the judge) in which the judge dismissed the appellant’s appeal against the refusal of entry clearance.
Background.
2. The appellant is a child. She is still only 12 years old. She applied at the same time as her mother, Ms S, to enter the United Kingdom (UK). Her mother was granted entry clearance to enter the UK as a spouse. Her spouse is Mr O. He is a British Citizen of Nigerian descent. The appellant’s mother entered the UK on 24 August 2023. The appellant was refused entry clearance on 25 August 2023.
Refusal of entry clearance.
3. The appellant was refused entry clearance on the date as stated above. The application was refused as there was no evidence provided of the appellant’s father’s whereabouts and what role he played in the appellant’s life. The entry clearance was not satisfied that the appellant’s father played no role in the appellant’s life and that he did not make decisions regarding the appellant’s upbringing. The entry clearance officer was not satisfied that the evidence demonstrated that the appellant’s mother was making all the decisions for the appellant’s upbringing.
4. The entry clearance officer also consider paragraphs Gen 3.1 and 3.2 of the immigration rules and concluded that the decision would not breach the appellant’s human rights.
5. The appellant appealed against the decision to the First-tier Tribunal (FtT).
The judge’s decision.
6. The judge was required to consider whether Ms S had sole responsibility for the appellant, whether there had been demonstrated that there were serious or compelling family or other considerations which made the exclusion of the appellant undesirable and whether the decision of the respondent was proportionate.
7. The judge heard evidence from Ms S and Mr O. The appellant was granted permission to adduced late evidence at the hearing before FtT. The judge commented upon gaps in the evidence and that the appellant had not provided a copy of Ms S’s marriage certificate, divorce certificate and any custody arrangements of the child [12]. The judge concluded that the evidence provided of the appellant’s life in Nigeria was limited [13]. The judge analysed the documentary evidence provided [13] and [14], [16]. The judge considered the assertion that the appellant was being cared for by a friend of Ms S, her mother at [15] and [17]. The judge found it had not been established that Ms S’s friend lives with the appellant. Ms S and Mr O were found not to be reliable witnesses and the judge concluded that they provided evasive answers [17]. The judge concluded that the appellant had not demonstrated that there was no other parent in her life [18].
8. The judge concluded that the appellant did not meet the rules for entry into the UK. The judge was not satisfied that the appellant’s mother had sole responsibility for her. The judge was not satisfied that there were serious and compelling reasons which made the appellant’s exclusion from the UK undesirable. The judge concluded that the respondent’s decision to refuse entry was a proportionate decision [22].
Grounds of appeal.
9. The grounds of appeal are lengthy. There is repetition in the grounds. The following is a summary of the grounds of appeal. They assert that the judge did not properly consider the appellant’s best interests and failed to consider the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 (section 55). It is asserted that the judge failed to have proper regard to the documents submitted by the appellant. The judge applied a higher standard of proof and required the appellant to provide further documents. The judge had erred in assessing the evidence of Ms S by taking into account her strong accent and demeanour. The judge had erred in unfairly criticising Ms S for leaving the appellant in Nigeria and entering the UK and the judge had failed to engage with the case law.
Permission to appeal
10. Permission to appeal was granted by Upper Tribunal Judge Bulpitt. Judge Bulpitt considered that the judge had arguably erred in the consideration of the appellant’s best interests and failed to treat this as a primary consideration. He referred to the judgment of the Supreme Court CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32 (CAO).
Submissions
11. Mr Ogunbiyi applied to introduce documents which had not been before the judge. There was not a formal application to introduce the documents before the Upper Tribunal. This application and the documents were provided on the day of the hearing. Mr Ogunbiyi stated that this had been made as the judge referred to a lack of documents evidencing the divorce, marriage and the custody arrangements for the appellant.
12. Mr Ogunbiyi relied upon the grounds of appeal. He asserted that the judge had made a perverse decision and the documents which had been provided, demonstrated that the appellant’s mother had sole responsibility. The judge had not taken the documents properly into account and had not made adequate findings. The judge had not made a finding as to what the best interests of the child were. It is a paramount consideration for which no finding was made by the judge. At [14] the judge had made inconsistent findings and the finding made was not open to the judge. It was clear that the remittances were for the appellant.
13. Mr Ogunbiyi submitted that the judge had taken into account the accent of Ms S in forming the assessment of her evidence. He acknowledged that there was no statement from the representative who had conduct of the hearing as to what had transpired. Ms S had provided a witness statement and she had set out that she chose the school, made remittances and that the appellant’s father had disappeared. This was not challenged and was not disputed. The findings made were not open to the judge.
14. After Ms Nolan’s reply, Mr Ogunyibi added that the judge had taken irrelevant matters into account. There was no reason to mention the matters if they were not relevant. The judge referred to the fact the appellant was not adopted by Mr O, and that the appellant had been left behind. Ms S was pregnant and wished to have the child born in the UK. The appellant provided sufficient evidence with the oral evidence. There was no basis to find that the bank transfers were unreliable and that this was not for the appellant’s up keep. Applying the balance of probabilities, the judge should have found this was sufficient evidence.
15. Ms Nolan invited the Tribunal not to accept the further evidence. She submitted that the explanation was not adequate. This evidence was available at the time of the hearing but was not produced. The refusal of entry clearance had taken issue with whether Ms S had sole responsibility and the existence of the appellant’s father. The custody arrangements was an important document. There was nothing mentioned in the witness statement of Ms S about the custody arrangements. The judge was not aware of this document.
16. In respect of ground 1 Ms Nolan submitted that the judge had made a full assessment. The findings made were important. The appellant had not discharged the burden of proof to demonstrate that her father was not involved in her life. The judge had noted the arguments presented. Ms S had chosen to leave her daughter behind. The judge found that it had not been demonstrated that no other parent was involved in her life. The appellant had not shown that Ms S had sole responsibility. The judge took account of all the documents before coming to the conclusions. It could not be said that the judge did not take into account the child’s circumstances and didn’t understand to assess the child’s best interests.
17. The judge did not mention accent and demeanour and nothing has been provided to demonstrate that this had an impact upon the judge’s assessment. The judge assessed the evidence which had been produced. The chat messages do not establish that Ms S has sole responsibility. The findings were open to the judge. The judge did not need to ask for further evidence. The refusal was clear and identified that sole responsibility, and the existence and involvement of the appellant’s father, was in issue.
Analysis and conclusions
18. The documents the appellant sought to introduce were not placed before the judge. The documents which are the subject of the application were, an order of the High Court in Lagos State in Nigeria relating to the appellant, the decree nisi dated 8 September 2017 and a statement from the appellant’s mother dated 24 April 2025. The decree nisi and the custody arrangements had not been referred to in the witness statement of the appellant’s mother nor the sponsor, which had been placed before the FtT. It was submitted that these documents were placed before the entry clearance officer and the respondent should have included these documents in the respondent’s bundle. However the appellant’s mother in her witness statement dated 24 April 2025, implies that the documents were not before the entry clearance officer.
19. I conclude that the only relevant document which went towards the issues in the appeal is the custody arrangements (the High Court Order). The other document is produced because the judge commented that they were not provided. I conclude that the decree nisi would not assist the appellant in this appeal and I do not admit it.
20. I turn to the document evidencing the custody arrangements. The entry clearance officer had raised the issue of sole responsibility and whether the appellant’s father exercised any responsibility. The appellant was legally represented. The appellant’s mother states the documents were not introduced because of the failure of the former legal representative. This is a serious allegation which has not been put to the former representative for comment. No evidence was provided to the Upper Tribunal to demonstrate that the documents had in fact been placed before the entry clearance officer. The witness statement of the appellant’s mother implies they were not before the entry clearance officer. The application to introduce these documents was only made on the day of the hearing. There had been failures to comply with the directions of the Upper Tribunal and a composite bundle of documents was not filed by the appellant.
21. I have concluded that I should not permit the appellant to introduce these documents under rule 15(2A) before the Upper Tribunal. The appellant has not established the reason why these documents were not submitted before the judge. There is an allegation made against a former representative which has not been put to that representative. There is also no evidence provided to the Upper Tribunal that these documents were ever before the entry clearance officer. The judge did not take these documents into account because they were never before the judge and no reference was made to them in the witness statements. There has been nothing to prevent the appellant making a new application for entry clearance and placing the documents before the entry clearance officer.

Grounds of appeal
22. When considering whether the judge made a material error in law in dismissing the appellant’s appeal, I have remined myself of the following principles.
23. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached. As held in South Bucks County Council v Porter [2004] UKHL 33, reasons must:
36. [...] enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.
24. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal stated:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
25. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 20
26. Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].
27. I will first consider the grounds of challenge regarding the evidence before the judge and the conclusions reached. I will then consider the ground upon which permission to appeal was expressly given, an asserted error in the consideration of the appellant’s best interests.
28. I have considered the appeals in this order as the assessment of the evidence by the judge and the conclusions reached about that evidence, formed the basis of the consideration of the appellant’s best interests.
29. The judge was required to consider whether the appellant had demonstrated that Ms S had sole responsibility of her. In the Upper Tribunal decision in TD (paragraph 297 (i)(e): sole responsibility) Yemen [2006] UKIAT 00049 (TD), it sets out the considerations which should be made as to whether sole responsibility has been established. The judge referred to this at [19].
30. The decision in TD, explains at §§49-52 that:
a. Where one parent has relinquished or abdicated responsibility for a child, the starting point must be that the remaining active parent has sole responsibility;
b. It makes no difference that the ‘active’ parent is in the UK, even though that means that the child’s day to day care will necessarily be undertaken by others.
c. The touchstone is whether the ‘active’ parent is exercising continuing control and direction in respect of the important decisions about the child’s upbringing.
d. Sole responsibility is a factual question to be decided in light of all the evidence.
e. Where both parents are involved in the child’s upbringing, it will be exceptional that one of them has sole responsibility.
f. If it is said that both parents are not involved in the child’s upbringing, one of the indicators will be that the other has abandoned or abdicated responsibility.
g. Others involved in the child’s upbringing may share responsibility, although not a parent
31. The judge made a self direction as to the burden and standard of proof [10]. There is nothing within the decision which implies that the judge has applied a higher standard of proof. The judge did not require the appellant to produce further evidence but noted, when assessing the evidence which had been produced, where evidence was missing. This did not impose a requirement on the appellant to produce evidence in order to establish her claim.
32. The judge considered the evidence provided by the appellant and came to clear findings. The judge started by noting gaps in the presentation of the evidence for the appeal. The judge concluded that little evidence had been presented of the appellant’s life in Nigeria [13] and evidence about her life with her mother before 24 August 2023 [17]. These findings were open to the judge on the evidence presented. The judge considered the money transfer receipts to Ms O and concluded that this did not establish that the appellant’s mother had sole responsibility [14] to [16]. This finding was open to the judge on the basis of the evidence presented. The judge stated that there was no evidence provided from Ms O and there was nothing in the letters from the schools that stated she had taken over the responsibility for the day to day care. The judge was entitled to take this into account in forming the conclusions as to whether the appellant had shown that her mother had sole responsibility. The grounds come nowhere near to establishing that the decision of the judge was perverse.
33. There is no reference in the decision to Ms S’s demeanour nor any reference to her strong accent. The advocate who presented the appeal has not provided a witness statement as to what transpired at the hearing. The judge referred to evasive answers and that Ms S did not answer questions in a straight forward manner. I conclude that this ground of appeal is not made out. The judge was entitled to take into account the manner in which the evidence was given and the judge was entitled to take into account that Ms S was evasive in her answers.
34. I now turn to the ground in respect of the appellant’s best interests and section 55.
35. The judge heard this appeal on 10 October 2024. The decision was promulgated on 28 October 2024. The Supreme Court handed down the judgment in CAO v Secretary of State for the Home Department (Northern Ireland) on 23 October 2024. Unsurprisingly no reference was made by the parties to this judgment. However the judgment confirmed the position in respect of the consideration of the best interests of children and that this is an important primary consideration. It was also concluded that section 55 places no duty upon the FtT. The function of the FtT is to decide for itself whether the decision of the respondent is compatible with the appellant’s article 8 rights.
36. The judge made a self-direction in respect of section 55 of the Borders and Citizenship Act 2009 at [10]. The judge addressed the arguments about the appellant’s best interests at [18]. It is the only paragraph where the appellant’s best interests are mentioned. The judge does not refer specifically to the best interests of the appellant and that it is a primary consideration.
37. I have considered this paragraph carefully and in the context of the decision when read as a whole. The judge commented that Ms S had made a decision to leave the appellant behind in Nigeria when she came to the UK to give birth to her child. The judge stated that this was the choice of Ms S. The judge here is implying that Ms S would not leave the appellant behind unless she was cared for adequately. There was nothing forcing Ms S to come to the UK to give birth to her child. She could have remained in Nigeria with the appellant. This was a choice which was open to her. This brings in to sharp focus the question of by whom, and how, the appellant was being cared for. The judge stated that she had been told little about the family life of the appellant in Nigeria and had been provided no evidence of the appellant’s home life with her mother before 24 August 2023.
38. The judge concluded that the appellant had failed to provide sufficient evidence that no other parent was involved in the appellant’s life. The appellant had also failed to demonstrate that there were serious or compelling family or other consideration which made her exclusion undesirable. These findings and conclusions were open to the judge on the evidence provided.
39. The findings at [18] are not made in isolation. In the preceding paragraphs the judge set out the reasons and explained why she was not satisfied that the evidence established that sole responsibility was exercised by Ms S for the appellant. This finding meant that the appellant has not shown that another was not exercising parental responsibility for her and others are not involved in her life and care. The assessment of the evidence also lead the judge to conclude that the appellant had not demonstrated that there were serious and compelling family or other considerations which made her exclusion undesirable. The appellant did not meet the immigration rules for entry into the UK. It is in this context that the appellant’s best interests needs to be assessed. When considered in this context, I am not satisfied that the appellant has demonstrated a material error of law in the judge’s decision.
40. I am not satisfied that an error of law has been demonstrated in the decision of the FtT.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber