Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000586

First-tier Tribunal No: HU/50073/2024
LH/06043/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th February 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE
UPPER TRIBUNAL JUDGE REEDS

Between

SHEIKHNUR MUHUMED MOHAMED
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms D Qureshi, instructed by Silverdale Solicitors
For the Respondent: Ms C Newton, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 13 January 2026

DECISION AND REASONS
1. This is the re-making of the decision in the appellant’s appeal, following the setting aside, in a decision promulgated on 1 October 2025, of the decision of the First-tier Tribunal.
2. The appellant is a citizen of Kenya whose date of birth is recorded as 1 January 1983. He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision to refuse him entry to the UK.
3. The appellant made an application on 3 October 2023 for entry clearance to the UK on the basis of his family life with his partner under Appendix FM. His application was refused on 6 December 2023 on the sole ground that he did not meet the eligibility financial requirements in paragraphs E-ECP.3.1 to 3.4 as he had failed to provide evidence showing that there would be adequate maintenance for himself, his partner and any dependents without further recourse to public funds. The respondent’s calculations demonstrated that the sponsor’s net income after accommodation costs had been deducted was less than the level a family of that size would be entitled to under Income Support. The respondent used the formula A – B ≥ C (A minus B is greater than or equal to C) to calculate the income available to maintain the appellant and his partner and any dependants in the UK, taking into account the projected income and accommodation costs, where A was net income (after deduction of income tax and National Insurance contributions), B was housing costs (what needed to be spent on accommodation), and C was the amount of Income Support that would be received by a British family of equivalent size. The respondent calculated the sponsor’s weekly income, from carer’s allowance, child benefit and universal credit, to be £215.31; the housing costs to be £0; and the income support equivalent calculation from income support and the additional child element for five children, to be £522.20, so that the income was therefore less than the level of Income Support that a UK resident family of equivalent size would be entitled to.
4. The appellant appealed against that decision and his appeal was heard by the First-tier Tribunal on 21 October 2024. The appellant sought to rely on an unreported decision (Khanom UI-2022-004804), but was refused permission, having failed to make an application to do so previously. The appellant’s position was that he intended to join the sponsor in the UK. They had five children together who were all British citizens. Two of their children lived in the UK and the other three lived in Kenya with the appellant. At the time of the application, one of the two children in the UK was officially dependent on the sponsor whilst the other was said to be dependent on the sponsor’s mother. It was stated that the sponsor received benefits for the child who was dependent on her and her mother received benefits for the child who was dependent on her. It was the appellant’s position that the child who was not dependant on the sponsor should not have been included in the calculation for adequate maintenance, and that the respondent had included that child in error. It was also the appellant's position that his British children residing abroad were entitled to child benefits once living in the UK, and that whilst the respondent had included all five children in the calculation of the sponsor’s household to determine adequate maintenance, she had failed to include the benefits to which the children were entitled when calculating household income. It was the appellant’s position that regardless of the outcome, his three children abroad would move to the UK and refusing his application was unjustifiably harsh as the sponsor and two of his children were in the UK and the sponsor could not move to Kenya as she was caring for her brother in the UK.
5. In the absence of evidence to show otherwise, the judge was not satisfied that one of the appellant’s two children in the UK was dependent upon the sponsor’s mother rather than the sponsor, as claimed. The judge found that there was nothing in the immigration rules to suggest that all five of the appellant’s children should not be included in the calculation or that a ‘two child policy’ impacted on the calculation. The judge accordingly found that the requirements of the immigration rules could not be met. The judge found further that the respondent’s decision did not result in unjustifiably harsh consequences and that the decision was not disproportionate under Article 8. The judge accordingly dismissed the appeal, in a decision promulgated on 3 November 2024.
6. The appellant sought permission to appeal to the Upper Tribunal against the judge’s decision. The grounds of appeal were as follows. Firstly, that the judge had materially erred by concluding that the evidence did not establish that one of the appellant's children in the UK was dependent on the sponsor's mother. Secondly, that the judge had erred in law by failing to correctly apply the benefit rules, specifically the two-child policy, which applied to Universal Credit and Child Tax Credit, when determining the adequate maintenance requirement under the Immigration Rules. Thirdly, that the Judge had erred by failing to consider and provide reasons for the appellant's substantive submissions regarding the inclusion of future entitlement to public funds for British children residing abroad in the calculation of the sponsor's income, giving rise to procedural unfairness. Fourthly, that the judge had failed adequately to consider the best interests of the children. Fifthly, that the judge had erred by not taking into account that the appellant's British children residing abroad would be entitled to public funds upon their arrival in the UK, and that this should be included in the sponsor's income ('A') in the adequate maintenance calculation.
7. Following a grant of permission to the appellant to appeal the judge’s decision, the matter cane before the Upper Tribunal at a hearing on 9 September 2025. It was argued for the appellant that the calculation made by the respondent was wrong, as the calculation for the children had been put on one side of the equation but not the other. It was argued that if the children were in the UK they would be counted for the purposes of income from benefits, that there should only have been one child counted in the UK, and that the two child limit on benefits should have been taken into account when calculating the income support equivalent.
8. In a decision promulgated on 1 October 2025, the First-tier Tribunal’s decision and was aside by the Upper Tribunal, on the following basis:
“12. I do not consider that the judge erred at [18] by rejecting the argument made in relation to the one child in the UK who was said to be dependent upon the sponsor’s mother. The judge properly found that there was no documentary evidence before her to demonstrate that one of the children in the UK was dependent upon the sponsor’s mother and that the sponsor’s mother was in receipt of benefits for that child. The judge was accordingly entitled to conclude that both children living in the UK were to be included in the adequate maintenance calculation.
13. Neither do I consider that the judge erred, or acted unfairly, by refusing to admit the unreported decision of the Upper Tribunal. There had been no proper application to admit that decision and its status, as unreported, meant that it carried little weight, there being no way of checking if there were other similar unreported decisions which reached a different conclusion. I also find there to be no error in the judge’s Article 8 assessment, in the event that the immigration rules could not be met. The best interests of the appellant’s children was clearly fully and carefully considered by the judge.
14. However, I do accept that the judge erred in her consideration of whether the requirements of the immigration rules were met. There was a failure by the judge to consider the full extent of the arguments in relation to the two grounds upon which permission has since been granted, namely the future entitlement of the British children entering the UK to public funds, and the impact of the two child limit on certain benefits including universal credit and child tax credit. The judge addressed the matter very briefly in one sentence at the end of [19], simply relying upon the respondent’s review, without properly engaging in the submissions and skeleton argument. I therefore accept that there was an error made by the judge in failing to address the arguments raised by the appellant and a failure to provide full reasons for rejecting those arguments.”
9. The matter was then listed for a resumed hearing in order for the Upper Tribunal to be provided with further and more focussed arguments from both parties setting out the relevant immigration rules and caselaw in clearly articulated skeleton arguments. The following specific points were made for the purposes of the resumed hearing:
“15. Firstly, I grant permission for the unreported decision in UI-2022-004804 to be admitted and referred to by the appellant, but I make it clear that it carries limited weight in that it was decided by my own colleagues and is not binding on me, and that there may well be decisions available which reach alternative conclusions.
Secondly, the tables produced by the appellant in the skeleton argument appear to refer to the sum of £77.78 as child benefit, whereas the respondent’s table makes it clear that the figure represented the child element of income support and not child benefit. The correct figures therefore need to be included for child benefit, bearing in mind, as Ms Newton reminded me, that child benefit reduces for each additional child.
Thirdly, the decision in Ahmed needs to be properly addressed by both parties. Whilst both parties relied upon the decision, it seems to me that paragraphs 4 and 15, which refer to paragraph 6C of the immigration rules, suggest that future entitlement to benefits may not be included in the calculation of income available to the family in the UK, as that would amount to ‘further recourse to public funds’. However that does not specify or distinguish between those not otherwise entitled to benefits and those who are British citizens, such as the appellant’s children.
Fourthly, the respondent’s dismissal, in the respondent’s review, of the two issues raised by the appellant and mentioned in the grant of permission, is simply that there is nothing in the immigration rules to confirm the appellant’s position. That is not, in my view, a sufficient answer to the points raised. The issues need to be properly addressed by the respondent.
Fifthly, Ms Newton relied upon Appendix FM-SE in her submission that the income available to the sponsor could not take account of future entitlement to public funds, but I did not have the relevant provisions before me and the argument was not clearly articulated. If that argument is to be pursued, the skeleton argument must make clear references, accompanied by the relevant provisions and guidance.”
Re-making the Decision
10. The matter came before ourselves for a re-making hearing on 13 January 2026. Both parties provided detailed skeleton arguments and made submissions, and in each case revised the figures for Table A and C as previously presented to the First-tier Tribunal.
11. For the respondent, it was accepted in the skeleton argument that the two-child limit applied to the income support equivalent calculation in Table C, so that the relevant figures were £133.30 for a couple over 18 and £155.56 for the child element (capped to two), making a total of £288.86, rather than £522.20 as previously stated in the refusal decision. The total for Table A was maintained at £215.31, but with the additional £15.90 of child benefit for the second child, making a new total of £231.21. For the appellant, the total for Table A was given as £434.43 (carer’s allowance at £76.75, universal credit at £114.56, child benefit for the first child in the UK at £24, child benefit for the four other children at £63.60 and future benefit entitlement for two British children residing abroad at £155.52). For Table B the total was given as £376.42 (universal credit for a couple at £133.30, child benefit for the first child in the UK at £24, child benefit for the four other children at £63.60 and future benefit entitlement for two British children residing abroad at £155.52).
12. Both parties agreed that the income/ benefits figures to be considered were those which were relevant at the time of the decision to refuse entry clearance, namely for 2023/2024. The parties were also in agreement that the relevant immigration rules were those to be found in the archived version of Appendix FM of 15 November 2023 and that the relevant guidance was version 13.0 “Family Migration: Appendix FM and Adult Dependent Relative- Adequate maintenance and accommodation” 11 November 2025.
13. Ms Qureshi clarified that the youngest two children were in the UK with their mother, the sponsor (Aida dob 22.6.23 and Maher dob 24.1.21) and the three eldest were in Kanya with their father, the appellant (Naila dob 19.11.18, Rumaisa dob 5.12.14 and Huthaif dob 11.5.12), and that all were British citizens. She explained that the sponsor went to Kenya when the appellant was working there but then came back to the UK when her brother (for whom she is now a carer) was ill and that now the family want to be together. Ms Qureshi explained that the sponsor was in receipt of carers allowance (£76.75), a single person’s universal credit (£114.56) and child benefit (£24 and £15.59), making a total of £230.90. She was entitled to receive a further £77.78 for each child (£155.52 in total) for the child element of universal credit, but had not yet claimed that. The total was therefore £386.42 for the income of the sponsor’s household, Table A. Ms Qureshi submitted that, for Table C, the adequate maintenance level for the family, the sponsor need only show adequate maintenance for herself and her husband, as the three children accompanying the appellant were not subject to any financial requirements due to their British nationality. The relevant figures she relied on were therefore £133.30 (universal credit for a couple) plus £24 and £15.59 child benefit plus £155.52 (child element of universal credit), making a total of £328.41 which was less than £386.42. She submitted that the child benefit amount should only be for two children and that the figure of £63.60 in Table 1 in the appellant’s skeleton argument should be deleted. Ms Qureshi submitted that, taking the relevant figure as £328.41, there were therefore ample finances available to meet the requirements of the immigration rules. Ms Qureshi submitted that the figure of £288.86 provided by the respondent in their skeleton argument for Table C failed to include the child benefit and was therefore not correct. Ms Qureshi submitted that the best interests of the children were strongly in favour of entry clearance being granted to the appellant.
14. Ms Newton submitted that the starting point was that the refusal of entry clearance did not prevent the children from coming to the UK and that the appellant and sponsor chose to have their family separated. She submitted that there was a distinction between a child and a dependant, and that the child element only related to the minimum income requirement of £18,600 in E-ECP.3.1, but was different to cases concerning the adequacy of maintenance of E-ECP.3.3. Ms Newton submitted that E-ECP.3.3(b) made it clear that the appellant had to provide evidence that the sponsor was able to maintain all her dependants without recourse to public funds. She referred to the Home Office guidance “Family Migration: Appendix FM and Adult Dependent Relative- Adequate maintenance and accommodation” of 11 November 2025 under the heading “assessing adequate maintenance” and the definition of “adequate maintenance”. With regard to Table A, Ms Newton submitted that the relevant total figure was £231.21 (£76.75 carers allowance, £24 + £15.90 child benefit and £114.56 universal credit). She submitted that it was not known if the figure of £114.56 for universal credit included the child element or not, as the award letter had not been produced by the appellant and all that was available was the monthly figure in the sponsor’s bank statements of £458.26. There had to be evidence produced, as per the requirements in Appendix FM-SE. As for Table C, the benchmark for a family in the UK of the size of the appellant’s family, Ms Newton accepted that the refusal decision had been erroneous in giving a figure for five children for the child element of universal credit (£77.78 x 5), when there was a two-child limit, and that the maximum which could be received was £155.56, making a total in Table C of £288.86, which was more than the figure for Table A, so that the finances available were not sufficient. She submitted that child benefit was not relevant to Table C. When we questioned her further about that, Ms Newton submitted that the rules did not include child benefit, but referred only to the income support level for the family. She submitted that, whilst child benefit was income, it could not be counted as a potential income as there had to be evidence that that was what could be received, and that child benefit could only be applied for once the children were in the UK. Ms Newton relied upon the Home Office guidance in submitting that future entitlement to benefits after the appellant arrived in the UK could not count towards net income when assessing adequate maintenance. The rule was about actual income received and not forecast.
15. In response Ms Qureshi submitted that her instructions were that the sponsor had provided her documents relating to her award of universal credit and that the documents were before the First-tier Tribunal. She submitted that the sponsor had not applied for the child element of universal credit as she had no need for it, but she was entitled to do so. Ms Qureshi relied upon the unreported case of Khanom and submitted that there must be scope for future benefits. She reiterated that the appellant met the requirements of the immigration rules and, further, that family life was particularly important in this case as the sponsor needed the appellant with her to look after all the children. We informed Ms Qureshi that the sponsor’s universal credit award letter did not appear in the papers before the First-tier Tribunal and she then requested further time for the sponsor to provide that, which we declined given that there had been ample opportunity for all evidence to be produced.
Analysis
16. It is not in dispute that this is not a case in which the minimum income requirement applied under paragraph E-ECP 3.1 but rather that the application fell to be assessed in accordance with E-ECP 3.3. (b), given that the sponsor was in receipt of carer’s allowance, and that that required her only to show that the sponsor would be able to maintain and accommodate him and any other dependants “without recourse to public funds”. Neither is there any dispute that, in order to assess whether there was adequate maintenance for the purposes of ECP.3.3 (b), the formula A – B ≥ C (A minus B is greater than or equal to C) applied, whereby A was net income, B was housing costs (in this case, zero) and C was the amount of income support (now universal credit) that would be received by a British family of an equivalent size.
17. The dispute in this case lies in which figures can be included in the relevant calculations, in both Tables A and C. Rather unhelpfully, various different tables and figures have been provided each time this case has been considered, and the submissions before us again provided different calculations and relied upon different permissible additions or exclusions. As mentioned in the error of law decision, it seems that tables 4 and 5 included in the appellant’s skeleton argument before the First-tier Tribunal mixed up child benefit and the child element of universal credit, so that those calculations are simply not reliable. In addition, the figures used in the appellant’s calculations were wrong in parts, with £15.90 being the correct figure for child benefit for each additional child and not £15.59, and £155.56 being the correct figure for £77.78 x 2, rather than £155.52, for the child element of universal credit. Further, Ms Qureshi appeared to be proceeding on the basis of different figures to those appearing in the appellant’s skeleton argument. Ms Newton, in turn, conceded that there were errors in the original refusal decision in so far as it failed to include the two-child limit for the child element of universal credit. We have therefore not been assisted by the inconsistent nature of the cases put by each party and found the submissions before us at the re-making hearing once again to be unhelpful. Regrettably the guidance in Ahmed (benefits: proof of receipt; evidence) Bangladesh [2013] UKUT 84 at [2] of the headnote, that “Income received and the projection for the figures which the applicant and sponsor have to be able to find should be expressed on a consistent and arithmetically accurate basis.” has not been followed. This has therefore been a difficult exercise which has not been assisted by the parties.
18. The main area of dispute arises from the question of whether future entitlement to benefits can be included in the calculations. There was some consensus between the parties, at the hearing, on the total for Table A. Absent the disputed future entitlements to benefits, Ms Qureshi submitted that the relevant figure was £230.90, which she said included child benefit for the two children in the UK, namely £24 and £15.59. She asked us to disregard the figure of £63.60 in Table 1 in the skeleton argument, which she said wrongly included child benefit for all five children. We note that her calculation included the wrong figure of £15.59 for child benefit for each additional child, and that the correct total, if the correct figure of £15.90 had been used, would have been £231.21. That was the figure relied upon by Ms Newton and therefore, up to that point, Ms Qureshi and Ms Newton were in agreement. However the parties disagreed on whether there was to be included an additional future entitlement to the child element of universal credit for the two children, of £155.56 (wrongly given as £155.52 in the appellant’s skeleton argument Table 1). Ms Newton did not accept that that was to be included whereas Ms Qureshi submitted that it should be included, although she departed from Table 1 in the skeleton argument in that regard. She referred to that figure as the child element of universal credit which the sponsor was entitled to, but did not receive, for the two children in the UK (having not yet made a claim), whereas the skeleton argument referred, in Table 1, to the figure being the future entitlement for two of the children residing abroad. Given the two-child limit, however, we do not see that that is a material matter. In any event, it was on that basis that Ms Qureshi relied upon the figure of £386.42 (which, if she had used the correct figure for child benefit and for 2 x £77.78, would be £386.77), whereas Ms Newton relied upon the figure of £231.21 for Table A.
19. As for Table C, Ms Qureshi submitted that the correct figure was £328.41, but again the incorrect figures were used for child benefit and for the total of the child element of universal credit, 2 x £77.78, and the total should therefore have been, on the appellant’s submission, £328.76 (£133.30 universal credit for a couple + £24 and £15.90 child benefit + £155.56 future child element entitlement). Ms Newton submitted, however, that the respondent considered the correct figure to be £288.86, conceding that the respondent had wrongly included the child element of universal credit for five children, rather than just two, in the calculation in the refusal decision. The difference in the total figures relied upon by the parties was therefore accounted for by the child benefit received for two children, which Ms Newton maintained, despite our enquiries, was not included in the notional income support level and thus did not form part of the calculation for Table C.
20. It seems to us that it is to the appellant’s advantage to proceed on the basis of the figure provided by Ms Newton for Table C, as that is the lower figure, so that the amount the appellant has to demonstrate for Table A is not as high as he would be required to show on Ms Qureshi’s calculations. We therefore accept that the relevant figure for Table C, namely the national income support level for a family the size of the appellant’s in the UK, would be £288.86.
21. The contentious issue, therefore, is Table A, as the appellant needs to include the future entitlement to benefits as part of the sponsor’s income, if he is to succeed in demonstrating an amount higher than £288.86. We therefore turn to the question of whether a future entitlement to benefits can be taken into account.
22. In submitting that such future entitlement could not be included, Ms Newton relied upon the Home Office guidance “Family Migration: Appendix FM and Adult Dependent Relative- Adequate maintenance and accommodation” of 11 November 2025 under the heading “assessing adequate maintenance”:
“The decision maker must take the following steps to assess the adequacy of the funds available:
• establish the sponsor’s and / or applicant’s … current total weekly net income (A):
… o an entry clearance applicant may say they will be entitled to claim public funds in their own right in the UK… and ask for this to be included in their net income - however, any potential future entitlement to benefits after the applicant arrives in the UK does not count towards net income when assessing adequate maintenance.”
23. Her submission was that that provision precluded entitlement to future benefits in the appellant’s case. However we do not accept her submission in that regard to be correct. It seems to us that that provision refers to future entitlement relating to the applicant and not to the sponsor, and thus in principle appears not to preclude the sponsor being entitled to further entitlement to benefits in her own right, separate from the appellant’s own status, including entitlements generated by the arrival of British children who are not subject to immigration control. Indeed, that is the argument made at [25] of the appellant’s skeleton argument relying upon the case of Ahmed (benefits: proof of receipt; evidence) [2013] UKUT 84, whereby the appellant argues, in relation to [15] of Ahmed, and referring to an older version of the immigration rules, that it is only a notional future entitlement dependent on the immigration decision that is excluded, whereas in the present case, the appellant’s three children are British citizens, whose entitlement to child benefit and the corresponding child elements under the universal credit framework flows directly from their status and statutory entitlement, and not from the appellant’s immigration position. The appellant also relies upon the unreported decision in Khanom in that regard, which appears, at [20] and [22], to endorse that approach.
24. The decision in Khanom is not, however, binding upon us. It is also relevant to note that in Khanom the issue of future entitlement to child benefit had already been decided by the First-tier Tribunal and was not part of the challenge, and that the Upper Tribunal did not reach a decision on the matter of dispute, namely the children’s future entitlement to universal credit/ tax credit, but rather remitted the matter to the First-tier Tribunal. The respondent also provides further reasons for rejecting the appellant’s reliance upon future entitlement to benefits which did not arise in the cases of Ahmed (noting that public funds in that case were in the context of paragraph 281 of the immigration rules) and which were not raised or considered in the case of Khanom, and which we consider to be persuasive.
25. In any event, the respondent also relies upon the requirement for evidence in paragraph E-ECP.3.3(b) of the immigration rules and the specified evidence provisions in Appendix FM-SE at paragraph 12A, with reference to paragraph 10, (which she points out were not requirements in paragraph 281), in asserting that the appellant cannot rely upon a source of income which was not yet being received and for which there was no evidence. The Home Office guidance “Family Migration: Appendix FM and Adult Dependent Relative- Adequate maintenance and accommodation” of 11 November 2025, at pages 17 and 18 of 33, sets out the evidential requirements where non-employment income is relied upon. Reference is made at page 17 to paragraph 12A of Appendix FM-SE as applying to all applications under Appendix FM and Appendix Adult Dependent Relative where an adequate maintenance requirement is to be met, and at page 18 reference is made to the evidential requirements of paragraph 10 of Appendix FM-SE where non-employment income is relied upon. The relevant provisions of paragraph 12A of Appendix FM-SE are set out at [6] of the respondent’s skeleton argument, and at [7] the respondent explains that the thrust of para 10 of FM-SE requires the applicant to provide documentary evidence from the source of income relied upon and a bank statement showing payment within the 12-month period leading up to the date of application.
26. Clearly there is no evidence of the future benefits relied upon, either the child element of universal credit or child benefit for the children residing abroad, since they have not yet been applied for or received and since the children are not present in the UK as required. On that basis, it seems to us that the appellant’s case for the inclusion of future benefits to which the sponsor and the children would be entitled, fails. Indeed, there has been no challenge to that argument by the appellant. The appellant’s skeleton argument did not address that matter at all, despite it having been raised by Ms Newton at the error of law hearing, albeit, as pointed out at [15] of that decision, it was not clearly articulated at that stage. Ms Qureshi’s response, at the hearing, was simply to maintain her understanding that the sponsor had provided the First-tier Tribunal with the letter of award of universal credit, but that was clearly not an answer to the argument made by the respondent. In the circumstances we cannot see how the appellant can succeed in light of the evidential requirements in Appendix FM-SE.
27. In any event, even if we were to accept that child benefit fell outside the scope of the specified evidence provisions, being a fixed amount that was not means-tested and to which the sponsor would no doubt be entitled on the basis of the British citizenship of her children, we still cannot accept that that assists the appellant in meeting the adequate maintenance requirements. That is because, by the appellant’s own argument, the same amount must be included on both sides of the equation and therefore does not affect the final calculations. The appellant’s skeleton argument, at [11] and in Table 1 at [34], includes child benefit for all five children in the calculation of the family’s income at the date of decision (Table A) as well as in the calculation of adequate maintenance required for a family of that size (Table C), so that they effectively cancel each other out. Ms Qureshi, on the other hand, asked us to disregard the figures given in the skeleton argument for child benefit in Table 1 and to include only the amount of child benefit for the two children in the UK, which again she put in both sides of the equation, in Table A and C and which again effectively cancel each other out. It was not argued for the appellant that the future entitlement to child benefit for all the children ought only to be considered in Table A. That must be correct. Either it is not included at all in Table C, since it is not part of the amount of income support an equivalent British family of that size can receive, as is the respondent’s case (which seems to us to be right) , or alternatively if the child benefit for the three children currently outside the UK is added to Table A it must also be added to Table C.
28. Indeed, the only figure relied upon by the appellant as materially increasing the amount in Table A is the future entitlement of two of the children to the child element of universal credit (£155.56). The appellant’s argument in that regard, however, is not at all clear, since Ms Qureshi’s submissions differed once again from those in the skeleton argument. The appellant’s skeleton argument relies, for Table A, on the future child element of universal credit for two of the children abroad, whereas Ms Qureshi relied on the current entitlement of universal credit for the two children already in the UK, for whom it was said that the sponsor had not, as yet, made an application. Both submissions have their difficulties. As regards the submissions made by Ms Qureshi, there is no evidence to support the claim that the universal credit presently received by the sponsor excludes the child element for the two children and that there therefore remains a future entitlement to make a claim. Ms Qureshi’s understanding was that the sponsor had provided her letter of award to the First-tier Tribunal, which would have clarified the matter, but the only evidence of any award we can find before the First-tier Tribunal was the letter of award for the sponsor’s carer’s allowance, which appeared in the respondent’s hearing bundle. In any event, even if it is correct that the award does not include the child element, there is no proper explanation as to why, if the sponsor is entitled to claim that element for the two children in the UK, she has not already done so. Ms Qureshi stated that the reason the sponsor had not applied for it was that she had not needed to. We find that difficult to accept as an explanation and do not consider it a proper basis for us to conclude, without more, that the child element of the universal support should be added to the calculation. That is particularly so when that was not an argument raised in the skeleton argument. The skeleton argument, at Table 1, relied rather upon future benefit entitlement for two of the children residing abroad, but again we do not consider that there would be such entitlement if the two children in the UK had already been included in the sponsor’s universal credit payment, given the two child limit, irrespective of their British nationality. Accordingly, on the evidence before us, and even aside from the evidential requirements in Appendix FM-SE, we are unable to accept that Table A ought to include the further £155.56 future benefit entitlement for the children, whether that be the children in the UK or abroad.
29. In the circumstances we reject the calculations provided by the appellant and conclude that those provided by the respondent at [18] and [20] of the skeleton argument are the correct ones, such that the income relied on in Table A does not exceed that required in Table C, and the appellant’s application does not meet the requirements of the immigration rules.
30. That is not the end of the matter, however, as this is a human rights appeal and the appellant claims that the decision to refuse his application interferes with his family life and is in breach of Article 8. We note that the First-tier Tribunal Judge considered Article 8 at [20] to [25] of her decision and, having regard to the best interests of the children, found that the respondent’s decision was a proportionate one. The appellant sought to challenge that part of the decision in his grounds of appeal to the Upper Tribunal but the judge was found not to have made any errors of law in that regard and her decision was upheld in relation to her findings on Article 8. We have, in any event, re-visited the matter and have taken into consideration the appellant’s skeleton argument at [35] to [37] and the submissions made by Ms Qureshi. However we can find no reason to depart from the decision of the First-tier Tribunal Judge.
31. It is accepted that the appellant has a family life with the sponsor and his children and that Article 8 is engaged. It is also accepted that the respondent’s decision interferes with that family life. However the respondent’s decision cannot be said to be disproportionate. The appellant’s inability to meet the requirements of the immigration rules is a weighty factor in favour of the public interest in immigration control. Although the family is split between two countries, there is no independent evidence to show that the children have been adversely impacted to any material extent as a result. Although it is to be assumed that the best interests of the children are for the family to live together, it was the family’s choice to live in separate countries. The sponsor is said to be a carer for her brother and is in receipt of carer’s allowance, but there is no evidence before us about the care she provides, and there is no evidence to show why she cannot return to Kenya with her children. The three British children in Kenya are also able to join their mother in the UK at any time, if their parents so wish. It is, of course, always open to the appellant to make a further application if the family’s financial circumstances change and the requirements of the rules can be met. There is no evidence to suggest that there are any exceptional circumstances such that the respondent’s decision has given rise to unjustifiably harsh consequences. We conclude, therefore, that the respondent’s decision is not in breach of Article 8.
DECISION
32. The decision of the First-tier Tribunal having been set aside, the decision is re-made by dismissing the appellant’s human rights appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 February 2026