UI-2025-000451
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The decision
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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000451
First-tier Tribunal No: HU/53434/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26th of June 2025
Before
UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
GENTIAN HALLACI
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr de Mello instructed by Kingswood Solicitors (via CVP).
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer
Heard at Phoenix House (Bradford) on 23 June 2025
DECISION AND REASONS
1. Both members of the panel have contributed to this decision.
2. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Manchester on 30 October 2024, in which the Judge dismissed his appeal against refusal of his application for permission to remain in the United Kingdom pursuant to Appendix FM of the Immigration Rules, and Article 8 ECHR, on the basis of his family life with his children.
3. The Appellant is a citizen of Albania who stated that in or around June 2017 his wife and children fled Albania without informing him, travelled to the United Kingdom, and claimed asylum. They now have leave to remain in the United Kingdom.
4. The Judge sets out the issues in dispute between [8] - [11] and the factual findings from [19].
5. The Judge notes the Appellant has two children, AH who was 18 at the date of the hearing and MH who was aged 20 (‘the boys’). The Judge notes both were under the age of 18 at the date of the application.
6. The Judge records the Appellant accepting that when he came to the United Kingdom in 2018 and made an asylum claim he made no mention of his family being in the United Kingdom at the time. It is also recorded that it was accepted that whilst he was in Albania and his family were in the United Kingdom the Appellant did not have contact with his children. The Appellant claimed that he was reunited with his sons in 2020. The boys live with their mother from whom the Appellant is estranged and in the process of going through a divorce.
7. The Judge accepts there is family life between the Appellant and the boys and recorded the Appellant’s case that the boy’s mother, JH, needs care.
8. The Judge records that MH is studying at the University in Birmingham, although lives at home with his mother and brother. He also has a part-time job. AH is a full-time A-level student.
9. It was asserted before the Judge that if the Appellant’s claim was refused his sons would have to give up education to look after their mother on a full-time basis and that outweighed the effective maintenance of immigration control. It was accepted by the Appellant’s representative, however, that there was no evidence that JH was unable to access care from another provider [35].
10. Having balanced the competing arguments the Judge found that the public interest was not outweighed by the Appellant’s claim and that the Respondent’s refusal was proportionate.
11. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal.
12. The application was renewed to the Upper Tribunal where it was granted, in part, on 17 March 2025, the operative part of the grant being in the following terms:
2. The FTT found that the appellant had a family life in the UK with his children, but that removing the appellant from the UK would not violate article 8. The FTT conducted a balancing test. It the factors that weighed against the appellant as: his illegal entry to the UK, the fact that he did not speak English, and the fact that he was not financially independent. Weighing in favour of the appellant was his family life with his sons, but the FTT put little weight on this. It gave “very little weight” to the relationship the appellant had built up with his sons in the past four years and the physical affection and day-to-day care he provided to them, because the appellant had re-established his relationship with them at a time when he was in the UK without leave. It put only limited weight on the fact that the children are refugees and could not return to Albania, on the grounds that the appellant could visit them in the UK, or their could meet in a third country (the decision refers to this consideration being set out at [33], but it is in fact at [36]).
3. The appellant advances three grounds of appeal. Ground Three is not arguable, as it relies on the assertion that the children’s mother “is totally reliant upon her husband for her personal care needs”, but the FTT gave specific reasons for rejecting the evidence of her dependence, and those reasons are not challenged.
4. Ground One is just arguable. It was arguably irrational for the FTT to consider that the appellant could apply successfully to visit his children in the UK, given his immigration history. Although the FTT faults the appellant’s representative for not “developing” the submission that he could not do so, the point is such an obvious one – based in the general grounds of refusal in the Immigration Rules and the respondent’s guidance and practice – that it arguably did not need developing.
5. Ground Two is just arguable. Although weight is a matter for the FTT, it is just arguable that the decision to give “very little weight” to the relationship between a father and his sons solely because the father was in the UK unlawfully is not adequately explained. Moreover, if Ground One is made out, it is arguable that the article 8 decision would be inadequately reasoned, given how brief the rest of the reasons are.
Discussion and analysis
13. Grounds one and two on which permission to appeal was granted read:
Ground one:
2. The learned judge was wrong in holding that though he gives more weight to the fact that the children are refugees and cannot return to Albania when assessing the impact on the rupture of family life between the children and the father this is justified for reasons given at § 33 of the Decision.
3. At § 33 of the Decision refers to JH the mother and not to the sons.
4. At § 32 of the Decision refers to MH studying at Aston University in Birmingham and lives with his mother and brother and has a prat time job. AH is a full-time student (A levels). And at § 45 they children do not have care needs.
5. At § 36 the learned judge rejects the submission that Appellant could not apply to return to the U to see his children on a limited basis.
6. However, the learned judge failed to consider that the Appellant is very unlikely to obtain future leave to enter the UK to visit his children because of his illegal entry into the UK in 2018 see Part 9.8.1 and 9.8.2 of the Immigration Rules; equally it would be very unlikely for the children to travel to Albania or elsewhere in their current situation as refugees in the UK. Consequently, the Appellant’s removal from the UK results in unjustifiably harsh consequences, either for him or for his family members.
Ground two:
7. The learned judge failed to provide adequate reasons for his decision in light of the fact that he accepted there is family life between the Appellant and his children.
14. The grounds also assert that although referring to relevant case law at [15] and [16] of the decision nowhere in the determination did the Judge either ask or answer the question of whether the Appellant’s removal from the United Kingdom would result in unjustifiably harsh consequences either for him or his sons.
15. In relation to the assertion the Judge did not properly consider the evidence we find such claim not made out. The Judge clearly considered the evidence with the required degree of anxious scrutiny and notes within the determinations limitations that arose in the evidence that was being advanced on the Appellant’s behalf. An advocate’s submissions are not evidence.
16. For example, at [33] the Judge records the Appellant’s claim there was no care available for JH but that his representative conceded before the Judge that there was no evidential basis to support such a claim. Similarly, at [34], the submission made on the Appellant’s behalf that the boys would have to give up education to look after their mother on a full-time basis if the Appellant was removed from United Kingdom is a submission without merit, as it was conceded by the representative that there was no evidence that JH was unable to access care from another provider.
17. We find no merit in the assertion the Judge did not consider whether the Appellant’s removal would result in unjustifiably harsh consequences as there is specific reference to this at [36].
18. That paragraph is also relevant as the decision is challenged for failing to consider that the Appellant is unlikely to be able to return to the United Kingdom to see the children in light of the fact that he entered illegally in or around 2018, absconded having claimed asylum, and did not resurface until 2022 when he made the application leading to the impugned decision. Although there is no direct evidence on the point, we accept that an Entry Clearance Officer is highly unlikely to grant the Appellant visa to enable him to visit the boys in the United Kingdom on the facts as found by the Judge.
19. We do not find, however, that the Judge’s finding that the Appellant and the boys could meet elsewhere is a finding outside the range of those reasonably open to the Judge on the evidence. We accept the boys have been recognised as refugees in the United Kingdom and that they cannot be expected to travel to Albania to see their father. The Judge does not, however, find that they could see their father in Albania.
20. At [36] the Judge notes a submission made by the Appellant’s representatives that the Appellant and the boys could not meet in a third country, but as noted by the Judge the representative could not develop the submission further as to why that was the case.
21. Although the boys were adults before the Judge, at the date of application they were minors albeit near their majority. MH was born in June 2004 and AH in October 2006. The date of application is 29 April 2022. At that point MH was very nearly 18 years of age and AH 16 years 4 months. There was nothing before the Judge to show that the boys could not travel, as they will have the benefit of the necessary travel documents, or that there would not have the resources to go to France, the Republic of Ireland or a short journey elsewhere where they could meet their father. There was nothing before the Judge to show the Appellant would not be able to travel from Albania to meet them outside the United Kingdom. The Judge’s conclusion that the prospect of the Appellant and his boys meeting in a third country to maintain face-to-face contact had not been shown to be unachievable is a finding reasonably open to the Judge on the evidence.
22. If the Appellant is removed the boys will continue to live in the United Kingdom with their mother and continue with their education as they were at the date of the hearing and decision.
23. It is not made out that between any face-to-face visits the Appellant will not be able to maintain indirect contact with the boys. It was not made out that such contact will not be sufficient to enable them to maintain their relationship.
24. It was also the case, as noted by the Judge, that the boys are now adults. They will now have control of their own future in terms of when they may wish to meet their father.
25. We accept Mr de Mello’s submission that paragraph 43 (d) is an important finding as that is the point at which the Judge records that the children are refugees and cannot return to Albania but that does not, in itself, make the decision plainly wrong.
26. The Judge weighs up the competing interests giving weight to the evidence as seen fit. Having done so the Judge concludes the refusal will not cause the boys to have to leave the United Kingdom and that they can carry on with their education. It had not been established that the Appellant needed to remain in the United Kingdom to meet any care needs. We find those are findings reasonably open to the Judge on the evidence.
27. The Court of Appeal has made it abundantly clear that appellate judges should not interfere in decisions of judges below unless they are plainly wrong. On the facts of this appeal, it has not been established that the Judge’s conclusion that the decision is proportionate is outside the range of findings reasonably open to the Judge on the evidence. We find the Judge properly found that the Appellants could not succeed under the Immigration Rules nor Article 8 ECHR. On that basis we dismiss the appeal.
Notice of Decision
28. No legal error material to the decision of the First-tier Tribunal has been made out. The determination shall stand.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 June 2025
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000451
First-tier Tribunal No: HU/53434/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26th of June 2025
Before
UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
GENTIAN HALLACI
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr de Mello instructed by Kingswood Solicitors (via CVP).
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer
Heard at Phoenix House (Bradford) on 23 June 2025
DECISION AND REASONS
1. Both members of the panel have contributed to this decision.
2. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Manchester on 30 October 2024, in which the Judge dismissed his appeal against refusal of his application for permission to remain in the United Kingdom pursuant to Appendix FM of the Immigration Rules, and Article 8 ECHR, on the basis of his family life with his children.
3. The Appellant is a citizen of Albania who stated that in or around June 2017 his wife and children fled Albania without informing him, travelled to the United Kingdom, and claimed asylum. They now have leave to remain in the United Kingdom.
4. The Judge sets out the issues in dispute between [8] - [11] and the factual findings from [19].
5. The Judge notes the Appellant has two children, AH who was 18 at the date of the hearing and MH who was aged 20 (‘the boys’). The Judge notes both were under the age of 18 at the date of the application.
6. The Judge records the Appellant accepting that when he came to the United Kingdom in 2018 and made an asylum claim he made no mention of his family being in the United Kingdom at the time. It is also recorded that it was accepted that whilst he was in Albania and his family were in the United Kingdom the Appellant did not have contact with his children. The Appellant claimed that he was reunited with his sons in 2020. The boys live with their mother from whom the Appellant is estranged and in the process of going through a divorce.
7. The Judge accepts there is family life between the Appellant and the boys and recorded the Appellant’s case that the boy’s mother, JH, needs care.
8. The Judge records that MH is studying at the University in Birmingham, although lives at home with his mother and brother. He also has a part-time job. AH is a full-time A-level student.
9. It was asserted before the Judge that if the Appellant’s claim was refused his sons would have to give up education to look after their mother on a full-time basis and that outweighed the effective maintenance of immigration control. It was accepted by the Appellant’s representative, however, that there was no evidence that JH was unable to access care from another provider [35].
10. Having balanced the competing arguments the Judge found that the public interest was not outweighed by the Appellant’s claim and that the Respondent’s refusal was proportionate.
11. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal.
12. The application was renewed to the Upper Tribunal where it was granted, in part, on 17 March 2025, the operative part of the grant being in the following terms:
2. The FTT found that the appellant had a family life in the UK with his children, but that removing the appellant from the UK would not violate article 8. The FTT conducted a balancing test. It the factors that weighed against the appellant as: his illegal entry to the UK, the fact that he did not speak English, and the fact that he was not financially independent. Weighing in favour of the appellant was his family life with his sons, but the FTT put little weight on this. It gave “very little weight” to the relationship the appellant had built up with his sons in the past four years and the physical affection and day-to-day care he provided to them, because the appellant had re-established his relationship with them at a time when he was in the UK without leave. It put only limited weight on the fact that the children are refugees and could not return to Albania, on the grounds that the appellant could visit them in the UK, or their could meet in a third country (the decision refers to this consideration being set out at [33], but it is in fact at [36]).
3. The appellant advances three grounds of appeal. Ground Three is not arguable, as it relies on the assertion that the children’s mother “is totally reliant upon her husband for her personal care needs”, but the FTT gave specific reasons for rejecting the evidence of her dependence, and those reasons are not challenged.
4. Ground One is just arguable. It was arguably irrational for the FTT to consider that the appellant could apply successfully to visit his children in the UK, given his immigration history. Although the FTT faults the appellant’s representative for not “developing” the submission that he could not do so, the point is such an obvious one – based in the general grounds of refusal in the Immigration Rules and the respondent’s guidance and practice – that it arguably did not need developing.
5. Ground Two is just arguable. Although weight is a matter for the FTT, it is just arguable that the decision to give “very little weight” to the relationship between a father and his sons solely because the father was in the UK unlawfully is not adequately explained. Moreover, if Ground One is made out, it is arguable that the article 8 decision would be inadequately reasoned, given how brief the rest of the reasons are.
Discussion and analysis
13. Grounds one and two on which permission to appeal was granted read:
Ground one:
2. The learned judge was wrong in holding that though he gives more weight to the fact that the children are refugees and cannot return to Albania when assessing the impact on the rupture of family life between the children and the father this is justified for reasons given at § 33 of the Decision.
3. At § 33 of the Decision refers to JH the mother and not to the sons.
4. At § 32 of the Decision refers to MH studying at Aston University in Birmingham and lives with his mother and brother and has a prat time job. AH is a full-time student (A levels). And at § 45 they children do not have care needs.
5. At § 36 the learned judge rejects the submission that Appellant could not apply to return to the U to see his children on a limited basis.
6. However, the learned judge failed to consider that the Appellant is very unlikely to obtain future leave to enter the UK to visit his children because of his illegal entry into the UK in 2018 see Part 9.8.1 and 9.8.2 of the Immigration Rules; equally it would be very unlikely for the children to travel to Albania or elsewhere in their current situation as refugees in the UK. Consequently, the Appellant’s removal from the UK results in unjustifiably harsh consequences, either for him or for his family members.
Ground two:
7. The learned judge failed to provide adequate reasons for his decision in light of the fact that he accepted there is family life between the Appellant and his children.
14. The grounds also assert that although referring to relevant case law at [15] and [16] of the decision nowhere in the determination did the Judge either ask or answer the question of whether the Appellant’s removal from the United Kingdom would result in unjustifiably harsh consequences either for him or his sons.
15. In relation to the assertion the Judge did not properly consider the evidence we find such claim not made out. The Judge clearly considered the evidence with the required degree of anxious scrutiny and notes within the determinations limitations that arose in the evidence that was being advanced on the Appellant’s behalf. An advocate’s submissions are not evidence.
16. For example, at [33] the Judge records the Appellant’s claim there was no care available for JH but that his representative conceded before the Judge that there was no evidential basis to support such a claim. Similarly, at [34], the submission made on the Appellant’s behalf that the boys would have to give up education to look after their mother on a full-time basis if the Appellant was removed from United Kingdom is a submission without merit, as it was conceded by the representative that there was no evidence that JH was unable to access care from another provider.
17. We find no merit in the assertion the Judge did not consider whether the Appellant’s removal would result in unjustifiably harsh consequences as there is specific reference to this at [36].
18. That paragraph is also relevant as the decision is challenged for failing to consider that the Appellant is unlikely to be able to return to the United Kingdom to see the children in light of the fact that he entered illegally in or around 2018, absconded having claimed asylum, and did not resurface until 2022 when he made the application leading to the impugned decision. Although there is no direct evidence on the point, we accept that an Entry Clearance Officer is highly unlikely to grant the Appellant visa to enable him to visit the boys in the United Kingdom on the facts as found by the Judge.
19. We do not find, however, that the Judge’s finding that the Appellant and the boys could meet elsewhere is a finding outside the range of those reasonably open to the Judge on the evidence. We accept the boys have been recognised as refugees in the United Kingdom and that they cannot be expected to travel to Albania to see their father. The Judge does not, however, find that they could see their father in Albania.
20. At [36] the Judge notes a submission made by the Appellant’s representatives that the Appellant and the boys could not meet in a third country, but as noted by the Judge the representative could not develop the submission further as to why that was the case.
21. Although the boys were adults before the Judge, at the date of application they were minors albeit near their majority. MH was born in June 2004 and AH in October 2006. The date of application is 29 April 2022. At that point MH was very nearly 18 years of age and AH 16 years 4 months. There was nothing before the Judge to show that the boys could not travel, as they will have the benefit of the necessary travel documents, or that there would not have the resources to go to France, the Republic of Ireland or a short journey elsewhere where they could meet their father. There was nothing before the Judge to show the Appellant would not be able to travel from Albania to meet them outside the United Kingdom. The Judge’s conclusion that the prospect of the Appellant and his boys meeting in a third country to maintain face-to-face contact had not been shown to be unachievable is a finding reasonably open to the Judge on the evidence.
22. If the Appellant is removed the boys will continue to live in the United Kingdom with their mother and continue with their education as they were at the date of the hearing and decision.
23. It is not made out that between any face-to-face visits the Appellant will not be able to maintain indirect contact with the boys. It was not made out that such contact will not be sufficient to enable them to maintain their relationship.
24. It was also the case, as noted by the Judge, that the boys are now adults. They will now have control of their own future in terms of when they may wish to meet their father.
25. We accept Mr de Mello’s submission that paragraph 43 (d) is an important finding as that is the point at which the Judge records that the children are refugees and cannot return to Albania but that does not, in itself, make the decision plainly wrong.
26. The Judge weighs up the competing interests giving weight to the evidence as seen fit. Having done so the Judge concludes the refusal will not cause the boys to have to leave the United Kingdom and that they can carry on with their education. It had not been established that the Appellant needed to remain in the United Kingdom to meet any care needs. We find those are findings reasonably open to the Judge on the evidence.
27. The Court of Appeal has made it abundantly clear that appellate judges should not interfere in decisions of judges below unless they are plainly wrong. On the facts of this appeal, it has not been established that the Judge’s conclusion that the decision is proportionate is outside the range of findings reasonably open to the Judge on the evidence. We find the Judge properly found that the Appellants could not succeed under the Immigration Rules nor Article 8 ECHR. On that basis we dismiss the appeal.
Notice of Decision
28. No legal error material to the decision of the First-tier Tribunal has been made out. The determination shall stand.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 June 2025