Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI- UI-2025-000663
UI-2025-000664
UI-2025-000665

First-tier Tribunal Nos:
HU/55574/2024 LH/06370/2024
HU/55575/2024 LH/06372/2024
HU/55572/2024 LH/06371/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th June 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

SULAIMAN KHAN STANIKZAI (FIRST APPELLANT)
LUQMAN KHAN STANIKZAI (SECOND APPELLANT)
ABDULLAH KHAN STANIKZAI (THIRD APPELLANT)
(NO ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr R Roberts, Legal Representative, instructed by Cromwell Wilkes Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 11th June 2025

DECISION AND REASONS
1. These written reasons reflect the full oral decision which I had given at the end of the hearing. To avoid confusion I have referred to the Appellants as they were before the First-tier Tribunal, whereas this was the Secretary of State’s appeal in the error of law decision which is annexed to these reasons. This is the remaking of the Appellants’ appeal against the Respondent’s refusal of their applications for leave to enter the UK as relatives of a UK sponsor.
The sole issue and the Secretary of State’s concession
2. I had previously identified in my error of law decision, following the hearing on 9th April 2025 at §§9 and 10, that the sole question as to whether the Appellants’ appeal should succeed on remaking was whether family life existed for the purposes of Article 8 ECHR between the Appellants and their sponsor. Ms Cunha on behalf of the Respondent had agreed at that hearing that there need not be any further consideration of proportionality, not least because earlier judges had given detailed consideration to the proportionality of the refusal of entry clearance.
3. The matter was therefore relisted for a further re-making hearing before me today. At the beginning of the hearing and having reviewed the updated witness statements, other documentary evidence and the arguments prepared carefully by Mr Roberts, Mr Walker formally conceded on behalf of the Respondent that in light of the evidence it was quite clear that family life existed between the sponsor and the Appellants. He also formally conceded on behalf of the Respondent that as a consequence, the Appellants’ appeals against the refusal of their entry clearance should succeed on the basis that those decisions breached their rights to respect for their family life for the purposes of Article 8 ECHR. It is therefore unnecessary in light of that concession for me to recite any further immigration history or make any further findings.
Notice of Decision
4. The Appellants’ appeals under Article 8 ECHR succeed.
5. The Respondent’s refusal of the Appellants’ leave to enter the UK is not upheld.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11th June 2025

ANNEX: ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-000663
UI-2025-000664
UI-2025-000665

First-tier Tribunal Nos:
HU/55574/2024 LH/06370/2024
HU/55575/2024 LH/06372/2024
HU/55572/2024 LH/06371/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KEITH

Between

The Secretary of State for the Home Department
Appellant
and

Sulaiman Khan Stanikzai (First Respondent)
Luqman Khan Stanikzai (Second Respondent)
Abdullah Khan Stanikzai (Third Respondent)
(NO ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellants: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondents: Mr R Roberts, Legal Representative, Cromwell Wilkes

Heard at Field House on 9 April 2025

DECISION AND REASONS
1. These written reasons reflect the full oral reasons which I gave at the end of the hearing. To avoid confusion, as this is the Secretary of State’s appeal, I will refer to the parties as the Claimants and the Secretary of State.
2. The Secretary of State appeals against the decision of a Judge of the First-tier Tribunal, who, in a decision following a hearing on 18th October 2024 at Taylor House, allowed the Claimants’ appeals on human rights grounds.
The Judge’s decision and the Claimants’ concession
3. These reasons are brief by virtue of Mr Roberts’ concession on behalf of the Claimants that the Judge erred in law. There is, regrettably, a lengthy litigation history with Mr Roberts saying that the appeal has been the subject of decisions of no fewer than three First-tier Tribunals and three Upper Tribunals, over a six-year period.
4. Very briefly, the Claimants, all minors, are currently in Pakistan, having fled the Taliban from their home country, Afghanistan. They are seeking reunification with their uncle, Mr Sadiq Khan Stanikzai who is sponsoring this appeal, who has been granted asylum status in this country. I had considered at the beginning of the hearing whether it was appropriate to make anonymity directions as a result of the Claimants being minors and the sponsor having refugee status, but the parties informed me that previous public judgments have not had anonymity directions, so that it served no purpose to issue ones now.
5. The issues in dispute had narrowed down over the years. The only issues before the Judge were whether family life for Article 8 ECHR purposes existed between the Claimants and the sponsor and if yes, whether refusal of leave to enter was disproportionate, by reference to the relevant Immigration Rules. The Judge identified these issues at §§19 to 21 and outlined that by reference to the case of Singh v SSHD [2015] EWCA Civ 630, that the analysis of whether family life existed was a fact-sensitive one, see §24. Nevertheless, the Judge said that the focus should be on whether factors in assessing whether family life was engaged were the same as those relevant to proportionality. At §§35 to §37, the Judge noted that an earlier judge had accepted that the Claimants were related as claimed to the sponsor and this finding had been preserved by Deputy Upper Tribunal Judge Monson. However, at §36, the Judge also recorded that Upper Tribunal Judge Monson did not make an express finding as to the existence of family life. The Judge noted:
“36. I am in similar difficulties for the same reasons he gave. I recognise the long standing and consistent commitment the sponsor has shown to bringing his nephews to the UK but do note the lack of evidence as to daily contact or other evidence demonstrating ongoing emotional support. I understand that evidence of ongoing communication was produced for previous hearings, as it is mentioned in UT Monson’s decision, but it is not before me.
37. Appling the approach in Singh, however, my focus is on the proportionality of the Refusal Decisions.”
6. The Judge then went on to consider the proportionality of refusal in the context of various provisions of the Immigration Rules and the well-known authority of Mundeba (s55 and para 297(i) (f)) Democratic Republic of Congo [2013] UKUT 88. The Judge concluded that refusal of leave to enter was disproportionate and in the circumstances that the Claimants’ appeals therefore succeeded.
The Secretary of State’s appeal
7. The Secretary of State subsequently appealed. The Secretary of State says that the error was a simple one. The Judge had failed to make a decision on whether family life had been established. That was required under the well-known authority of R (Razgar) [2004] UKHL 27 and that much was clear from the Judge’s reasons at §36, commenting that Deputy Upper Tribunal Monson did not make an express finding as to the existence of family life. Without an express finding that the Claimants had a family life, the Judge had erred in finding that the Claimants had satisfied the requirements of the Immigration Rules on the basis that refusal of entry clearance would breach Article 8 ECHR and had incorrectly focused on the issue of proportionality.
8. Permission was granted by a Judge of the First-tier Tribunal in a decision of 4th February 2025 noting that whilst the earlier judge had identified the issue of family life at §36 that had been an issue in the previous appeal, and instead that a focus was on proportionality of the refusal decisions at §37, it was least arguable that the Judge had erred in self-directing to the case of Singh [2015] as supporting a proposition that there need not be a finding on whether family life existed.
The Claimants’ Concession
9. The Claimants pragmatically conceded that the Judge had erred in failing to make findings on whether family life existed between them and the sponsor for the purposes of Article 8 ECHR and on that basis, the Judge’s decision could not stand and should not be set aside. However, in considering how the matter should be disposed of Mr Roberts quite rightly pointed out with the detailed knowledge of the background of the history of this litigation that there were a number of other findings that had been preserved, not least by Deputy Upper Tribunal Judge Monson and the issue had narrowed down further to the single question of whether family life existed, for the purpose of Article 8 ECHR. In simple terms, if family life existed then the Claimants’ appeal succeeded in this case.
10. I canvassed with Ms Cunha whether this was a single issue, and she accepted that it was, which needed to be resolve on remaking, namely the existence of family life for the purposes of Article 8. There need not be any further consideration of proportionality.
Notice of Decision
11. The decision of the Judge contained an error of law such that it is not safe, and I accordingly set it aside.
Disposal of the Appeal and directions
12. I bear in mind §7.2.(a) and (b) of the Senior President’s Practice Statement and the well-known authority of AEB v SSHD [2022] EWCA Civ 1512 AEB on how to resolve remaking. I also canvassed with the representatives how they submitted I should resolve the appeal. They both expressly accepted that I should retain remaking in this Tribunal. That was on the basis that the issues had narrowed down over six years of litigation, to the single issue of whether family life existed. Accordingly, I regarded it as appropriate, where the parties have not been deprived of a fair hearing and the issue was so narrow, to retain remaking in this Upper Tribunal.
13. Remaking will therefore be relisted for a further hearing in person, at Field House, for 2 hours, without the need for an interpreter.
14. Having discussed with the representatives, it is agreed that the Claimants will file and serve a composite bundle and, as Mr Roberts has indicated, it will assist a remaking judge if, to the extent necessary for findings of fact on the sole issue, any earlier judgments which include findings which have been preserved are included in that composite bundle, with any updated witness statement. The Claimants themselves will not give evidence, but it is of course at liberty for them to adduce any witness statement they wish to. The sponsor will be giving witness evidence, so any witness statement should include all the evidence which will comprise his evidence-in-chief without the need for any examination-in-chief and he will be tendered for cross-examination and any re-examination on issues of clarification.
15. By agreement, the composite bundle shall be filed and served not later than 14 days before the resumed hearing. Filing must be via CE-File, but service cannot be via CE-File (service must be in the normal way).
16. Any skeleton arguments from the representatives shall be filed and served not later than 7 days before the resumed hearing.

J Keith
Judge of the Upper Tribunal
Immigration and Asylum Chamber

22nd April 2025