Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000805
UI-2025-000806
UI-2025-000807
UI-2025-000808
UI-2025-000809

FHI - HU/62290/2023, LH/06857/2024
FHI - HU/62292/2023, LH/06861/2024
FHI - HU/62293/2023, LH/06860/2024
FHI - HU/62294/2023, LH/06859/2024
FHI - HU/62295/2023, LH/06858/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29th of April 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ANSA ASIF
EMAAN ASIF
MUHAMMAD ALI
MUHAMMAD DUAD ASIF
ESHAAL ASIF
Respondents

Representation:
For the Appellant: No appearance
For the Respondent: Ms Cunha (Senior Home Office Presenting Officer)

Heard at Field House on 15 April 2025

DECISION AND REASONS
1. These are linked appeals brought, with permission, by the Appellant against a decision of First-tier Tribunal Judge Abebrese (“the Judge”) dated 17 December 2024, in which the Respondents’ Article 8 human rights appeals were allowed.
2. In summary, the Respondents are the wife and children of their sponsor Muhammad Asif Sarwar. They applied for entry clearance under Appendix FM in order to join him in the United Kingdom. The applications were refused because the sponsor has limited leave to remain in the United Kingdom as a third country national under the EU Settlement Scheme, which is not a status that qualifies under paragraph E-ECP.2.1 of Appendix FM. All other requirements under the rules were met, save for the second Respondent who was over 18 at the date of the application. The applications were also rejected under paragraphs GEN.3.1 and GEN.3.2 of Appendix FM on the basis that there no exceptional circumstances which would result in unjustifiably harsh consequences to the family occasioned by the refusals.
3. The determination does not identify any representation for the parties at the hearing which took place at Taylor House on 22 November 2024, that section of the determination is blank. There is no reference to any representatives in the body of the determination or to any submissions. It is also not clear from the determination whether the Judge heard any oral evidence from the sponsor or any other witnesses, there being no reference to any evidence beyond the written evidence in the bundle. It appears from the determination that the Judge proceeded to determine the appeal on the papers. However, in answer to a question from the Panel, Ms Cunha was able to confirm by reference to the Home Office Presenting Officer’s note of the proceedings that both parties were in fact represented. The Entry Clearance Officer by Mr Amini and the Respondents by Mr Swain of counsel.
4. The Judge recorded the Respondent’s concession that due to the sponsor holding limited leave to remain the applications did not meet the eligibility criteria under the rules. The Judge concluded that there were unjustifiably harsh consequences flowing from the refusal decisions because the sponsor and the Respondents are a family unit and on the facts family life was engaged. It was foreseeable that the separation of the family would have an impact on the mental health of the first Respondent especially as she has to look after the children on a daily basis. The refusal decisions delay the family being together even though the sponsor is due to qualify for indefinite leave to remain next year, it does not make the situation better for the Respondents as they are still separated as a family.
5. The Judge allowed the appeal on Article 8 ECHR grounds.
Summary of grounds and submissions
6. There was no appearance by the Respondent’s representatives or their sponsor. The notice of hearing had been sent in good time to the representatives. There was no rule 24 response from the Respondents or any other engagement with the Tribunal in relation to this appeal. Ms Cunha did not have further information to add. In the circumstances we decided that the Respondents had proper notice of the appeal and we proceeded in their absence.
7. Ms Cunha on behalf of the Appellant relied upon and amplified the written grounds of appeal and additionally made an application to add an additional ground that she submitted was Robinson obvious. She submitted that the Judge had shifted the burden of proof to the Secretary of State when assessing whether the second Respondent was still dependent upon his parents and not leading an independent life. The reason is that the Judge said he found the Respondent’s argument credible “because there is no evidence to suggest otherwise” (paragraph 8). We refused the application to amend the grounds in fairness to the Respondents because the Respondents were not present or represented and had no notice of the amendment and may have wished to respond had they had such notice.
8. The grounds of appeal are summarised as follows:
(a) The Judge took an irrelevant factor into account, namely that the sponsor will qualify for indefinite leave to remain next year. This is speculation and not a circumstance relating to the date of the hearing.
(b) The Judge’s findings regarding the first Respondent’s mental health and the fourth Respondent’s diagnosis with autism was inadequately reasoned based on the available evidence.
(c) The medical evidence is limited and does not provide details about the onset of the conditions, how they were diagnosed, the manifestation of the conditions and the prognosis.
(d) The Immigration Rules were not satisfied, and the issue of family separation was a voluntary one based on the family’s choice.
9. Ms Cunha invited us to set aside the decision in its entirety and to remake the decision in the Upper Tribunal.
Conclusions
10. We conclude that there are material errors of law within the First-tier Tribunal decision for the reasons set out in the grounds above. We are further concerned that the decision did not even record the presence of the parties or their submissions at the hearing. This is a case where it was accepted that the applicants do not satisfy the immigration rules and the evidence, including the medical evidence was relatively sparse. The Judge has failed to provide sufficient reasons in these circumstances to explain why there are unjustifiably harsh consequences stemming from the refusal. The Judge appears to have been influenced in his decision by the prospect of the sponsor becoming eligible to apply for indefinite leave to remain next year, a factor that was irrelevant for the purposes of the assessment before him.
Notice of Decision
11. The appeal is allowed. The decision of the First-tier Tribunal is set aside with no findings preserved.
12. The appeal is remitted to the First-tier Tribunal to be heard de novo before a different Judge.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 April 2025