Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000705

First-tier Tribunal No: HU/61804/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

YOU FU
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of the First-tier Tribunal (Immigration and Asylum Chamber), promulgated on 25 November 2024, in which the Appellant’s appeal, on human rights grounds, against the refusal of entry clearance under paragraph 297 of the Immigration Rules was dismissed. In broad summary, the appellant’s case is that she should be permitted to join her father in the UK because he now exercises sole responsibility for her since her mother relinquished her parental responsibilities.
Appeal to the Upper Tribunal
2. Permission to appeal was granted by Judge Pickering on 7 February 2025 on grounds 1 to 3, which concern:
i. Procedural unfairness arising from the judge raising new points without giving the appellant an opportunity to address them;
ii. Perversity and irrationality in the assessment of sole responsibility;
iii. Material mistakes of fact in the evaluation of the evidence.
3. Permission was refused for grounds 4 and 5 to be argued and it is unnecessary to say any more about them.
4. The respondent filed a Rule 24 response dated 2 July 2025, conceding that the First-tier Tribunal decision contains material errors of law and should be set aside. Specifically, the respondent accepts:
• That the judge introduced points not raised in the refusal or review without giving the appellant an opportunity to comment, resulting in procedural unfairness;
• That the findings on sole responsibility must be set aside;
• That the judicial reasoning which went to the nature and extent of communication between the appellant and her father did not reflect the uncontested nature of the call logs.
5. The respondent suggested that there was no reason to go behind the judge’s findings on the absence of serious and compelling circumstances and that these findings of fact could be safely preserved. The factual matters to which the respondent took issue were set out. It follows that this document functions as something of respondent’s review which will assist in any rehearing. Ultimately, no objection was raised to a de novo hearing taking place in the First-tier Tribunal.
6. The appellant filed a reply to the rule 24 notice, dated 18 July 2025, concurring with the proposition that the decision must be set aside and inviting the Upper Tribunal to remit the matter to the First-tier Tribunal for a de novo hearing.
7. Given the positions of the parties and having provided an opportunity to make submissions on the process to be adopted in deciding the appeal, I did not consider it to be necessary to hold a hearing.
Discussion
8. It is, of course, not for the respondent to decide whether a judicial decision involves a material error of law. I am not bound to accept the concession which has been made, but the agreement between the parties is an important indication of the strength of the appellant’s arguments. This is because a forensic decision has been taken in adversarial proceedings not to resist those arguments.
9. I have considered the challenged decision with care and agree that it involves material errors of law. This is founded on two fundamental issues. Firstly, the parties agree, having listened to a recording of the hearing, that the judge held a number of factual matters against the appellant which were never put to her sponsoring father to address during the hearing. It cannot be a fair process where an appellant learns, for the first time, in the decision, why she has been unsuccessful, and she has not had a fair opportunity to address the concerns the judge had. In view of the lack of challenge by the respondent and the lack of any judicial attempt to clarify these matters during the hearing, it would have come as something of a surprise for the appellant to see that concerns were raised about the divorce documentation. This was a matter of obvious importance in an appeal where the central question was whether the appellant’s father had assumed sole responsibility for their daughter after the breakdown of the marriage. I am equally satisfied that the judge has operated under a mistake of fact about the nature and extent of the messages between the sponsor and the appellant. This was an important evidential component of the case that he had assumed sole responsibility. The respondent has accepted that the judge’s characterisation of these communications, as being mostly superficial and disconnected calls, is simply not reflected on a fair and natural reading of the call logs which were before her.
10. I am satisfied that the decision of the First-tier Tribunal involved the making of material errors of law. The appellant was denied a fair opportunity to respond to points which were held against her, and the findings were infected by procedural unfairness and factual error.
11. Considering the nature of the error and the respondent’s concession, I set aside the decision of the First-tier Tribunal in its entirety. I am not persuaded that the flawed fact-finding process can be compartmentalised to safely preserve the findings which went to serious and compelling circumstances.
Disposal
12. Having considered [7.2] of the Presidential Practice Statements, the overriding objective and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that the appropriate course is to remit the appeal to the First-tier Tribunal for a fresh hearing before a judge other than Judge Malik. The appellant was denied a fair hearing in that she was not given a proper opportunity to address matters which ultimately went against her. The appeal will require a full fact-finding process on the issue of sole parental responsibility and any other relevant matters under paragraph 297 of the Immigration Rules.
Notice of Decision
The decision of the First-tier Tribunal involved material errors of law and is set aside. I do not preserve any findings of fact.
The appeal is remitted to the First-tier Tribunal for rehearing de novo before a judge other than Judge Malik.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 August 2025