Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-001035
UI-2025-001036
UI-2025-001037
UI-2025-001038

First-tier Tribunal Nos: HU/00967/2024
HU/00968/2024
HU/00969/2024
HU/00971/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
27th June 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

ADEDAMOLA JOSHUA OSHINAIKE
DANIEL OLUWAPELUMI OSHINAIKE
DAVID IYANUOLUWA OSHINAIKE
OLUWADAMILOLA ELIZABETH OSHINAIKE
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: No representation
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 10 June 2025

DECISION AND REASONS

1. The appellants appeal with permission against the decision of the First-tier Tribunal (“FTT”) of 10 December 2024, which dismissed their appeals against the respondent’s decisions of 18 April 2024 refusing them entry clearance to the UK.
2. The appellants are siblings and citizens of Nigeria. They applied on 5 February 2024 for entry clearance to the UK to join their aunt (“the sponsor”), who is also a citizen of Nigeria and who lives in the UK with leave to remain as a refugee. The first appellant was born in May 2014, the second appellant in May 2008, the third appellant in August 2006, and the fourth appellant in March 2012. At the date of application they were all under the age of 18 and they each applied under Appendix CPN of the Immigration Rules as the child of a non-parent relative with protection status in the UK.
3. At the date of their applications, Appendix CNP provided in relevant part:
CNP 3.1. The applicant must:
(a) be aged under 18 on the date of application; and
(b) not be married or in a civil partnership; and
(c) not have formed an independent family unit; and
(d) have an existing, genuine family relationship with the UK based relative; and
(e) have satisfactorily established their identity and nationality.
CNP 3.2. The decision maker must be satisfied that:
(a) the applicant can, and will, be accommodated and maintained adequately by the UK based relative, without access to public funds and in accommodation which the relative owns or occupies exclusively; and
(b) there are suitable arrangements for the applicant’s care and accommodation in the UK, which must comply with relevant UK legislation and regulations; and
(c) there are serious and compelling family or other considerations which make exclusion of the applicant undesirable.
CNP 3.3. Where an applicant does not meet the eligibility requirements of CNP.3.1. and CNP 3.2., the decision maker must consider whether a grant of permission to stay or entry clearance is appropriate based on exceptional circumstances which include where:
(a) the applicant has no parent with them; and
(b) the applicant has no family other than in the UK that could reasonably be expected to support them; and
(c) there is an existing, genuine family relationship between the applicant and the UK-based relative; and
(d) the applicant is dependent on the UK based relative.
CNP 3.4. Where the applicant does not meet the requirements in CNP 3.1. and CNP 3.2. and the decision maker is not satisfied that there are exceptional circumstances under CNP 3.3. consideration must be given to whether refusal of the application would be a breach of Article 8 ECHR, because such a refusal would result in unjustifiably harsh consequences for the applicant or their family member, whose Article 8 rights it is evident from the information provided would be affected by a decision to refuse the application.
4. The appellants say that their aunt has raised them since 2014. They say that their father was violent towards their mother and finally abandoned them in June 2014, and that shortly thereafter, their mother placed them in their aunt’s care due to her own ill health; there was evidence before the FTT showing that she was receiving treatment for colon cancer. They have submitted an affidavit from their sponsor confirming that she was the children’s legal guardian which had she sworn before the High Court of Lagos State in February 2016. When their aunt fled Nigeria for the UK in October 2017, she left the children in the care of their grandmother. They say that she still supports them financially, makes key decisions about their care, such as choosing their school, remains in contact with their schools and doctors, and gives them guidance and emotional support over the telephone. They say that their grandmother, who was born in 1951, suffers from a range of medical conditions and is no longer able to provide them with the care and support they need. They say that if they come to the UK, the sponsor and her partner will be able to support them financially through their income from employment and accommodate them in a four-room home they own.
5. In support of their applications, they submitted the sponsor’s guardianship declaration before the High Court, a letter from the grandmother confirming the sponsor’s role in the children’s lives, and a letter from NHS Wales confirming the sponsor’s permanent full-time employment at a salary of just under £20,000 per annum as of May 2022.
6. The respondent refused all four applications for the same reasons: the evidence was insufficient to establish that the children were biologically related to their sponsor or that they had an “existing, genuine family relationship” with her; the financial evidence was insufficient for an assessment of adequate maintenance and accommodation, particularly as there was no evidence of the sponsor’s housing costs; and the ECO was “not satisfied there are suitable arrangements for your care and accommodation in the UK, which comply with relevant UK legislation and regulations. The documents you have submitted do not demonstrate how and where you will be accommodated.” The lack of evidence of the relationship with the aunt also meant that the ECO was not satisfied that there were exceptional circumstances. Nor was there evidence that their parents could not care for them. Finally, the respondent set out her article 8 considerations relating to a different child; all four decisions referred to a child sponsor who had been “separated from his family for over a year” but was in the care of an “alleged uncle”.
7. The appellants appealed. In support of their appeal, they relied on statements from the eldest child, the sponsor and the grandmother, a letter from a hospital in Lagos detailing the grandmother’s health conditions and a recent five-day hospitalisation, the sponsor’s council tax bill, a document from HM Land Registry showing joint ownership of a property in the name of the sponsor and her partner, the sponsor’s P60 and payslips from her NHS employment, the sponsor’s partner’s P60 and payslips, a statement from him confirming his commitment to providing third-party support to the children, birth certificates, a letter from the children’s GP stating, inter alia, that the sponsor was in regular contact with them about the children’s health and paid their medical bills, medical and dental bills for the children, a letter from the a hospital in Lagos confirming their mother is suffering from colon cancer and receives regular treatment for various conditions, school reports and receipts for school fees (paid by the sponsor), records of financial transfers from the sponsor to the eldest appellant and to the grandmother, and an excerpt from the US State Department Human Rights Report for Nigeria about violence against woman, presumably to corroborate the fears the eldest appellant expressed in his statement about his sister’s safety.
8. The respondent completed her review on 20 November 2024. This identified the issues in dispute as

„[a] CNP 3.1 (d)
„[b] CNP 3.2 (a-b)
„[c] CNP 3.2 (c)
“[d] best interests of the children
“[e] article 8 ECHR”
9. The respondent accepted that CNP 3.1.(d) was met on the basis of the birth certificate provided. With regard to 3.2 (a-b), the review asserted that “the Respondent cannot consider the third party support” (which is in fact inconsistent with her guidance) and that there was insufficient evidence of the sponsor’s mortgage costs or that the sponsor lived with her claimed partner. In terms of serious and compelling circumstances, the respondent found that the medical letter concerning the grandmother did not confirm that she could not care for the children, that they were in a boarding school, “so their day to day care is managed by their education facility”, the evidence of financial transfers was insufficient to show the children’s financial dependency on the sponsor, the evidence was inconsistent about whether the sponsor had begun to care for the children in 2014 or 2016, and in any event current care arrangements could continue. In terms of the children’s best interests, they were in the care of a family member and performing well in school. There was no evidence that it would be in their best interests to “uproot” them. In terms of article 8, finally, the evidence was insufficient to establish that article 8 was engaged, and the relationship could continue through visits and modern means of communication.
The Judge’s decision
10. The appeals came before the FTT at Newport on 22 November 2024. The decision records that in addition to the evidence listed above, the tribunal had sight of the sponsor’s partner’s bank statements. The sponsor and her partner both gave evidence.
11. In a decision dated 10 December 2024, the FTT dismissed the appeals. The tribunal summarised the sponsor’s evidence about the children’s circumstances, her care for them since 2014 ([13-14]), and her own financial circumstances:[16]. It was noted at [15] that the sponsor had named the children as her dependants in her Preliminary Information Questionnaire: [15]. The FTT referred to the documentary evidence of financial transfers ([19]), the medical letters from Nigeria: [20-21] and the council tax bills and bank statements before her: [24]. On the basis of this evidence, the FTT made the following findings:
(i) The sponsor provided the appellants with “important financial support” but the appellants had not demonstrated that she had been “solely financially responsible for them since 2014”: [19];
(ii) The medical evidence appeared to confirm that the children’s mother had a diagnosis of colon cancer, but there was no evidence of the prognosis and no explanation for why she had not given a statement: [20].
(iii) During the seven years since the sponsor had left Nigeria, the children had received the care they required from their boarding school and their grandmother: [21];
(iv) The medical evidence showed that the grandmother suffered from “some ill health”, and the hospital letter stating that she could no longer provide the children with “the appropriate care that they deserve” was noted. However, the grandmother did not need to provide the children with full-time care, as they were in boarding school and one of the children was now 18. Therefore, the children had not demonstrated that they had no family other than their sponsor who can provide the care and support they require: [21].
(v) There was nothing in the Rules that precluded the consideration of third party support, such that the partner’s income could be taken into account: [23].
(vi) The sponsor and her partner were the joint owners of their home: [22], and they shared the costs; the partner’s bank statements showed payment of the mortgage and other outgoings. They earned the income they claimed (which had been recorded at [16] as a total of £51,000 per annum). “However, there is limited information, about their jobs and whether they are permanently employed. Further information about 76 Beaufort Road and how the Appellants would be accommodated would also assist.” Therefore, the appellants had not shown that they met the maintenance and accommodation requirements of the rules: [24]
(vii) The evidence did not support a finding that the children’s circumstances were sufficiently serious and compelling to make exclusion undesirable because they were “settled at school” and “appropriately cared for with some support from [the sponsor] at a distance”. The evidence of the grandmother’s ill health did not demonstrate that the children could not continue receiving the care that they needed: [25]
(viii) It was in the children’s best interests that the status quo continue, so as to avoid disruption to their education and “to maintain their relationship with their grandmother and [the sponsor] as has been the case for the past 7 years.”: [25]
(ix) With regard to article 8, “[t]here is limited information about the family life which the Appellants share with [the sponsor]. They have been living separately for 7 years and there is only modest evidence about the extent of contact between them.” The FTT was not satisfied that there was family life between them: [28] In the alternative, the article 8 assessment was resolved against the appellants: [29]-[31].
The grounds of appeal
12. The FTT granted the appellants permission to appeal on all grounds. The grounds are:
(i) The FTT’s finding that the maintenance and accommodation requirements were not met was flawed because:
a. The rules do not require that the employment relied on is permanent;
b. It was procedurally unfair to hold the lack of evidence that the employment was permanent against the appellants, because this issue was not raised by the respondent or the FTT and could not have been anticipated (as it is not in the rules); and
c. The FTT failed to have regard to the evidence before it on this issue; a letter from the sponsor’s employer confirmed that her employment was permanent; and
d. The sponsor said in her witness statement that her home has “3 bedrooms with a spare extra room”, and this evidence was not challenged, nor was the issue of adequate accommodation more generally raised by the respondent or the FTT.
(ii) In deciding that the relationship between the appellants and the sponsor did not constitute family life, the FTT erred by failing to have regard to a number of relevant factors. These included:
a. Whether there was family life between the appellants and the sponsor at the time of the sponsor’s departure (with reference to Rai v ECO, New Delhi [2017] EWCA Civ 320 at [30] and the respondent’s policy, Family reunion: for individuals with protection status in the UK at p.28);
b. The sponsor’s committed financial support to the appellants, including paying for their school fees and medical and dental treatment; the FTT had accepted at [19] that the sponsor provided the appellants with “important financial support”; and
c. The appellants’ vulnerability, arising from their difficult childhood and their mother’s and grandmother’s inability to care for them; it was argued that this vulnerability and previous history were relevant factors as identified in Huang v SSHD [2007] UKHL 11.
(iii) The same relevant factors had been overlooked in the consideration of whether the appellants met the requirements of CNP.
(iv) In the article 8 balancing test, the FTT had failed to “set out” any of the “compassionate factors” weighing in the appellants’ favour and failed to take into account that family life could not continue outside the UK because the sponsor is a recognised refugee.
13. There was no Rule 24 response.
The hearing
14. Although the appellants’ grounds of appeal were drafted by counsel, they were unrepresented at the hearing. The sponsor and her partner appeared in person. I explained that the sole purpose of the hearing was to consider whether the FTT had made a legal error. The sponsor said that she understood. When I summarised the grounds of appeal, she confirmed that she understood and agreed with them but also that she was not able to make any additional submissions to the tribunal. I then set out my understanding of the appellants’ grounds to Ms Simbi and invited her response. I will not repeat her submissions in full here but I have taken them into account in making my decision and will refer to them where necessary below.
15. I am very grateful to Ms Simbi for her assistance to the tribunal and the respect with which she treated the sponsor and her partner. At the end of Ms Simbi’s submissions, the sponsor asked if her partner could say something. I indicated that he could, and he expressed their fears for the children due to the security situation in their home area. I explained that I would not be able to take into account anything that was not raised before the FTT, and he said he understood.
16. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Discussion
17. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
18. Even taking those principles into account, I consider it clear that the FTT erred in its consideration of two issues: whether the adequate maintenance requirement was met and whether family life, as defined by article 8, existed between the appellants and their sponsor.
19. In deciding whether the appellants met the maintenance requirements of the rules, the FTT took into account a factor that is not relevant under the rules, namely whether the jobs are permanent. There was also a more general complaint about the “limited information” about the jobs, but this is so vague that it is impossible to know what further information was thought to be required. The question at this point of the decision was the level of income and nothing else, such that I consider the complaint about “limited information” to be redundant and the only actual concern being expressed to be about the permanence of the employment.
20. There is nothing in the respondent’s guidance that requires evidence that a job is permanent. The guidance refers repeatedly to “current income”. This is consistent with Appendix FM-SE, which now applies to application made under Appendix CPN. This requires evidence that the job has been held for at least six months, but not that it is legally “permanent” employment. In Ahmed (benefits: proof of receipt; evidence) Bangladesh [2013] UKUT 84 at [17], on which the respondent’s maintenance and accommodation guidance is explicitly based, the Upper Tribunal did refer to there being “no reason to suppose that the sponsor’s employment was other than permanent”, but that falls short of a requirement to provide evidence of permanence. Even if it were open to the FTT to take into account a consideration not found in the rules or the guidance, moreover, it would be procedurally unfair to do so if it had not been raised by the respondent or the tribunal. There is no suggestion that it was raised in this case.
21. In any event, a letter from the sponsor’s employer that was before the FTT confirmed that her employment was permanent, such that the finding that there was no evidence on this issue was perverse, at least with regard to the sponsor.
22. This error was clearly material, because with a combined income of £51,000 a year, a council tax bill of £1641.74 a year and mortgage payments of £802 a month (the FTT noted at [24] that the mortgage payments were shown in the sponsor’s bank statements), the maintenance requirements of the rules were clearly met under the established formula set out in Ahmed and the respondent’s guidance. Having looked at the actual figures, and the respondent’s guidance allowing for third party support, Ms Simbi conceded this point at the hearing before me.
23. I find no error in the FTT’s conclusion that the appellants had not established that there were serious and compelling reasons that made their exclusion undesirable or that there was no other relative who could care for them. It was reasonably open to the FTT to find that the children had not established what care they still required from their grandmother, given their ages and the fact they were in boarding school, and that the medical evidence did not establish that the grandmother could not continue to provide that care. It was also open to the FTT to take into account that the children appeared to be settled in their school when finding that there were not compelling reasons for them to be admitted to the UK.
24. However, I find that the FTT did err in its consideration of whether there was family life between the appellants and their sponsor. The FTT appears to take into account only two factors: the length of separation and the limited documentary evidence of communication. Ms Simbi rightly pointed out that the FTT was clearly aware of other factors that pointed towards the existence of family life, such as the fact that the sponsor mentioned the children as her dependants in her PIQ, and her ongoing financial support, because these had been mentioned elsewhere in the decision, and that it should be presumed that it kept these factors in mind when deciding the family life issue. I have also reminded myself of the dangers of “island-hopping”.
25. Taking into account the standard of “real, effective and committed support”, and the range of factors that are relevant to whether that standard is met (see e.g.: Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, Kugathas v SSHD [2003] EWCA Civ 31 at [24], Huang v SSHD UKHL 11 (2007) at [18]), I find that there was enough evidence that family life existed that the finding that it did not exist needed to be explained. It could not simply be inferred from what was said elsewhere in the decision about other issues. There was evidence that family life had been established prior to the sponsor’s departure, including the declaration of guardianship and the PIQ statement ([15]), and the FTT found elsewhere in the decision that the sponsor continued to provide “important financial support” (including payment of school fees, medical bills and some cash remittances) ([19]) and played a role in the children’s “care […] from a distance”: [25]. None of this was mentioned in the part of the decision considering whether family existed; nor was the letter from the children’s GP or the contents of the sponsor’s evidence or the eldest appellant’s statement. I therefore find that the FTT erred either by failing to take into account evidence that was material to the question of whether family life existed, or by taking it into account but not explaining why it was not sufficient to support a finding of family life.
26. This error was material, because there were also material errors in the article 8 assessment. These include weighing against the appellants that their sponsor could not maintain them adequately in the UK, which was wrong for the reasons set out above, and that there was limited evidence about their ability to speak English when they are children (to whom the English language requirements of the rules do not apply) and there was a series of school records documenting that they are being educated in English. Nor has the FTT taken into account that, as a recognised refugee, the sponsor would be unable to visit the children in Nigeria. It may be that the article assessment would have been the same even without these errors, but it cannot be said that it would inevitably have been the same.
27. For these reasons, the decision of the First-tier Tribunal contained errors of law requiring it to be set aside.
28. I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out at [7] of the Senior President’s Practice Statement, AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I am satisfied that it is appropriate to remit the appeal to the First-tier Tribunal because substantial findings of fact will need to be made.
29. Although the FTT’s findings about whether there were serious and compelling reasons that made the appellants’ exclusion undesirable and whether there was any other family member who could care for them were sustainable, any updating evidence relevant to whether the refusal of entry clearance would have “unjustifiably harsh consequences” may well be relevant to those issues as well. The decision is therefore set aside with no findings preserved, in order for the next judge to be able to decide the appeals on the basis of the evidence before them.

Notice of Decision
The FTT’s decision of 10 December 2024 is set aside and the appeals are remitted for a fresh hearing on all issues, before any other judge.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 June 2025