Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000650

First-tier Tribunal No: HU/53878/2024
LH/07268/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

16th May 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE SEELHOFF

Between

Secretary of State for the Home Department
Appellant
and

ANDREW KUNG’U GICHUHI
(No Anonymity Direction Made)
Respondent

Representation:
For the Appellant: Mr Hulme, Senior Home Office Presenting Officer
For the Respondent: Ms Heybroek, Counsel instructed by Paramount Solicitors

Heard at Field House on 2 May 2025

DECISION AND REASONS

1. For clarity, we refer below to the parties as they were before the First-tier Tribunal.

2. The Appellant is a citizen of Kenya. In a decision dated 15 December 2024, a Judge of the First-tier Tribunal (‘the Judge’) allowed his appeal against a decision to remove him from the UK.

3. The Appellant was in the UK without leave to remain when he applied as an unmarried partner of a British national. The Respondent accepted that the Appellant’s relationship was a partnership for the purposes of Appendix FM of the Immigration Rules, but concluded that there were no insurmountable obstacles to family life with his partner continuing in Kenya, and that the Appellant did not have a genuine and subsisting relationship with his British daughter from a previous marriage. This in effect meant that the appeal could not succeed when the Appellant was in the UK without leave to remain.

4. In allowing the appeal, the Judge found at [16] that there was a genuine and subsisting parental relationship between the Appellant and his daughter, who could not reasonably be expected to leave the United Kingdom. Consequently, the Judge found at [21] that EX.1 (a) of Appendix FM applied. It was not in issue that, if that were the case, the appeal ought to be allowed because that clause in effect waives the requirement for the Appellant to be in the UK lawfully.

5. The Respondent appealed arguing that the finding that the relationship was “genuine and subsisting” was irrational as the judge also found that the relationship with the daughter has broken down and that there was no contact with her [19].

6. Permission to appeal was granted on the 4th February 2025.

The Hearing

7. Mr Hulme expanded briefly on the grounds before us noting that a relationship could not be both “genuine and subsisting” and “broken down” and that the Judge was speculating about the possibility of future contact.

8. In reply, Ms Heybroek relied on her rule 24 response and argued that the Judge had been entitled to find that the relationship was subsisting on the basis that the Appellant sent £100 a month directly to his daughter’s bank account on an entirely voluntary basis. She prayed in aid the fact that the daughter had not (or at least had not been found to have) returned the money. Ms Heybroek argued that a relationship could be genuine and subsisting in the absence of contact but accepted that: the term “subsisting” was the antithesis of “broken down”, that the Judge’s position was therefore at least contradictory and that the Judge had not explained how the contradictory positions were reconciled in her view.

9. At the end of the hearing we indicated that we were of the view that there was an error of law and discussed the next steps. As Ms Heybroek noted in her Rule 24 response, the Judge had failed to make any findings as to whether or not there were very significant obstacles to the Appellant’s current relationship with his partner continuing in Kenya and accordingly whether or not the requirements of Appendix FM EX.1 (b) were met. The parties accordingly agreed that remittal to the First-tier was appropriate.

Error of Law

10. The term “genuine and subsisting” is not defined in the Immigration Rules but is used in reference to relationships between couples, and between parents and children. The word “genuine” is logically interpreted as a reference to whether or not the legal relationship between individuals exists and in this case is a reference to whether the Respondent is the biological father of his child which is not in issue.

11. A reference to whether a relationship is “subsisting” is a reference to the quality of the relationship, and requires an examination of whether the relationship not only is continuing but also whether it goes beyond a mere legal relationship. As Ms Haybroek accepted, a relationship which has “broken down” is the very antithesis of one which “subsists”.

12. Consequently, the Judge’s finding at [19] that the appellant’s relationship with his daughter had “broken down” is inconsistent with her finding later in that paragraph that it was “subsisting”. No attempt had been made to reconcile these contradictory findings. It follows that the Judge’s decision involved the making of an error of law.

13. That is not to say that it was not theoretically open to a judge to find that the Appellant’s parental relationship with his daughter was “genuine and subsisting”, just not after finding that the relationship had “broken down”, and only after a proper consideration of all of the circumstances.

14. In the case of Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC), it was found that a relationship had been proven to be subsisting on the basis of a combination of a husband’s visits to Pakistan, financial support and records of regular telephone contact.

15. The judge in this appeal was considering a relationship between a father and child, rather than husband and wife but it still provides support for our view that there was a need to consider the quality of the claimed parental relationship and not just the fact the legal relationship. A finding that a relationship is subsisting ought to be based on a holistic analysis of the circumstances as a whole and should always take account of the nature and extent of contact (in this case the fact that the relationship had broken down), financial support and any other relevant factors.

16. We therefore find that there is an error of law.

Disposal

17. We considered whether the appeal ought to be retained in the Upper Tribunal for remaking. However, having reached her (erroneous) conclusions on the Appellant’s relationship with his daughter, the Judge chose not to make any findings as to whether there were “very significant obstacles” to the relationship with his partner continuing in Kenya [21]. Accordingly there is a requirement for considerable fact finding on this issue which has not been done in the First-tier. Applying the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), we consider that remittal is appropriate.

Notice of Decision

1. The decision is set aside.
2. The appeal is remitted to the First-tier Tribunal at Hatton Cross, to be remade afresh and heard by another Judge.

A. Seelhoff

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber