Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001149
UI-2025-001150

First-tier Tribunal No: HU/54150/2023
LH/04103/2024
HU/53880/2023
LH/04101/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of September 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

NS
YS
(ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr S Hingora of Counsel, instructed by Spio & Co Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants and their father are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and their father. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellants, who are citizens of Côte d'Ivoire, appeal with permission against the decision of First-tier Tribunal Judge Baffa (“the judge”) promulgated on 5 November 2024 dismissing their appeals against the respondent’s decisions dated 23 February 2023 to refuse their applications for leave to enter on the basis of their family life with their father.
2. For the reasons set out below, we would dismiss the appeals.

Anonymity
3. While we attach weight to the significant public interest in open justice, in the present case we are satisfied that the balance weighs in favour of protecting the appellants’ identities on the basis that one of them claims to be the victim of a rape: see Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private.

Background
4. The appellants are half-sisters who reside in Côte d'Ivoire. YS was born in 2006 and NS was born in 2011. Their father arrived in the UK in 2006 and was granted asylum in 2007. In 2013, he was granted indefinite leave to remain and he was naturalised as a British citizen in 2024.
5. In August 2018, NS made an application for leave to join her father in the UK. That application was refused on 8 November 2018 with a right of appeal. However, in a decision promulgated on 18 September 2019, First-tier Tribunal Judge G D Davison dismissed her appeal. Judge Davison was not satisfied on the evidence that the sponsor was in fact the father of NS or that he had sole responsibility for her for the purposes of paragraph 297 of the Immigration Rules (“the Rules”) which is concerned with indefinite leave to enter the UK as the child of a parent with settled status.
6. On 2 October 2021, both NS and YS made applications for entry clearance to join their father in the UK. In decisions dated 23 February 2023, the respondent refused their applications. Despite on this occasion accepting the parental relationship, the respondent found that the appellants did not meet the requirements for entry under paragraph 319X of the Rules as a child of a relative with limited leave to remain as a refugee because their father was no longer a refugee but held indefinite leave to remain. The respondent did not consider their applications under paragraph 297 of the Rules because they had not paid the requisite fee. She therefore proceeded to consider their circumstances outside of the Rules on Article 8 ECHR grounds. However, the respondent concluded that there were no serious and compelling circumstances to their case to justify a grant of leave to enter. In particular, she found that little detail had been provided about their circumstances in Côte d'Ivoire and she was not satisfied that they were not currently under the care of their mothers or another relative.

The appeal to the First-tier Tribunal
7. The appellants appealed the decisions of 23 February 2023 to the First-tier Tribunal. In his decision dated 5 November 2024, the judge took as his starting point the findings made by Judge Davison in 2019. Having done so, the judge noted that the genuineness of the relationship was no longer in issue, but he found the father was not a credible witness. The judge went on to consider whether the appellants met the requirements of paragraph 297 of the Rules but he was not satisfied that the father had sole responsibility for the appellants or that YS’s mother had died. He also did not accept on the evidence that there were serious and compelling family or other considerations which would make the exclusion of the appellants from the UK undesirable. He therefore found that they did not meet the requirements for entry under the Rules. The judge then considered their circumstances outside of the Rules but concluded that their exclusion from the UK would not be disproportionate when weighed against the “strong” public interest considerations.

The appeal to the Upper Tribunal
8. On 14 May 2025, Upper Tribunal Judge Hirst granted the appellants permission to appeal on one ground: that the judge arguably carried out a flawed analysis of the appellants’ rights under Article 8 ECHR.
9. The appellants argue that the judge:
a. gave inadequate weight to their family life with their father by minimising the emotional, financial and personal support he provides to them despite their geographical separation;
b. failed to consider the adverse impact of the appellants’ separation from their father, particularly given that YS suffered from the trauma of having been raped and the lack of alternative caregivers in Côte d'Ivoire;
c. failed to adequately consider their best interests as children;
d. failed to carry out an adequate balancing exercise by failing to take into account relevant factors; and
e. attached too much weight to the public interest factors when carrying out the balancing exercise by finding that there was a “strong” public interest in maintaining immigration control.

The hearing
10. On the morning of the hearing, Mr Hingora was granted permission to join via video-link due to family circumstances. There were no issues with the video-link.
11. We heard submissions from both Mr Hingora and Ms McKenzie. These are recorded in the record of proceedings and are not rehearsed here except where necessary to do so.
12. At the end of the hearing, we reserved our decision.

Findings – Error of Law
13. The question of how much weight to attach to the evidence before him was a matter for the judge. That includes the written and oral evidence of the appellants’ father. It was the father’s evidence that both of the appellants’ mothers had abandoned them, that YS’s mother was now deceased and he did not know where NS’s mother was; and that he financially supported his daughters and was responsible for making the key decisions in their lives. However, the judge did not find the father to be a credible witness. The reasons given included that the father had not been able to give a clear explanation as to how he had come into the possession of key documentary evidence; he had failed to give consistent evidence about the length of the prison sentence imposed on the man who raped his daughter; he had failed to provide consistent evidence about when he discovered YS’s mother had died; and there was a lack of evidence supporting his claim to have been detained by the Ivorian authorities and had £12,000 stolen by them when he last visited the country: [43] to [49]. As a consequence, the judge was not satisfied that YS’s mother was deceased: see [50]. At [51], the judge was not satisfied that the sponsor’s claim to have sole responsibility for the appellants for the purposes of paragraph 297(i)(e) of the Rules to be credible. The appellants have been refused permission to appeal those findings and they therefore stand.
14. At [52] to [53], the judge was satisfied that the there were no serious or compelling reasons that would make the exclusion of the appellants from the UK undesirable for the purposes of paragraph 297(i)(f) of the Rules. In making that finding, the judge also found that the appellants had not demonstrated that there would be suitable care arrangements for them in the UK due to the lack of evidence of their father’s ability to provide accommodation and financial support without recourse to public funds. Again, the appellants were refused permission to appeal that finding and it therefore stands.
15. It is against this background that the judge’s consideration of the appellants’ right to family life outside of the Rules must be examined.
16. We are satisfied that the appellants’ assertion at point (a) that the judge gave insufficient weight to their family life with their father amounts to little more than a disagreement with his findings. The judge accepted that family life existed (see [54]) and that the father sent the appellants money (see [58]), but those findings must be considered against the fact that the judge was not satisfied that YS’s mother was dead or that the father had sole responsibility for the appellants, which necessarily implies that there were other family members, likely their mothers, who also had at least joint responsibility for them: see [50] and [51].
17. While the appellants argue that the judge failed to take into account that YS was the victim of a rape and that they had no alternative caregivers in Côte d'Ivoire, it is apparent from reading [44] that the judge attached little weight to the father’s evidence regarding the alleged rape and at [50] and [51] that he was not satisfied that YS’s mother was deceased or that the appellants’ father had sole responsibility for them. Consequently, the judge was entitled not to factor these things into the proportionality exercise. Furthermore, we reject the suggestion that the judge failed to take into account the appellants’ separation from their father. The judge was clearly aware that the appeal was predicated on the appellants’ and their father’s desire to be together in the UK, and this was expressly addressed by the judge as a factor weighing in their favour in the final two sentences of [58]. We therefore find that neither points (b) or (d) of the ground of appeal are made out.
18. With regards to the assessment of the appellants’ best interests, they are correct that the judge does not expressly address this at [54] to [59] where he considers Article 8 outside of the Rules. However, the judge does refer to their best interests at [52] and [53]. Relying on the case of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88, the judge properly directed himself that the consideration under paragraph 297(i)(f) of the Rules as to whether there were serious and compelling family or other considerations that would render a child’s exclusion from the UK undesirable inevitably involved an assessment of what the child’s welfare and best interests required. The judge found that no such considerations existed in the present cases and, therefore, the appellants did not meet the requirements of the Rules. The appellants do not have permission to challenge that finding.
19. It is trite law that the best interests of a child is a primary but not a paramount consideration. Given that the judge did not accept that there were any serious and compelling family or other considerations to the case that meant the appellant’s succeeded under the Rules, we are satisfied that the judge’s failure to expressly repeat his views on their best interests in the passages of his decision relating to Article 8 outside of the Rules was immaterial to the outcome: it is clear that the appeal would have been dismissed in any event. We therefore find that point (c) is not made out.
20. Finally, we turn to point (e) in which the appellants argue that the judge misdirected himself by attaching too much weight to the public interest considerations when weighing the two sides of the scale. They rely on the fact that at [58] the judge says, “I have had regard to the strong public interest in maintaining immigration controls” (underlining added). However, the appellants argue, s.117B(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) states only that the “maintenance of effective immigration controls is in the public interest” and, consequently, the judge attached too much weight to the respondents’ side of the scale without any justification on the facts.
21. The appellants are correct that s.117B(1) does not refer to a “strong” public interest. But at the hearing, Mr Hingora was unable to adequately explain how much weight the judge should have attached to the public interest. Instead, his position was that there was nothing special on the facts of the case that justified the judge placing so much weight on the public interest. He also sought to distinguish the appeal from a criminal deportation case where the public interest consideration would undeniably be weightier. However, Mr Hingora did not suggest that little weight should be attached to the public interest. Nor did he claim that this was a neutral factor in the balancing exercise. It therefore follows, in our view, that the judge was reasonably entitled to attach the weight he did to the public interest and that it was justified on the facts of the case.
22. First, this was a case in which the appellants failed to meet the requirements of the Rules. In Agyarko v Secretary of State for the Home Department [2017] UKSC 11, Lord Reed (with whom the other Justices agreed) explained at [46] that the Rules
“are statements of practice to be followed, which are approved by Parliament, and are based on the Secretary of State's policy as to how individual rights under article 8 should be balanced against the competing public interests. They are designed to operate on the basis that decisions taken in accordance with them are compatible with article 8 in all but exceptional cases.”
And at [47]:
“… The courts can review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but they have to bear in mind the Secretary of State's constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament…In doing so, they have to take the Secretary of State’s policy into account and to attach considerable weight to it at a general level, as well as considering all the factors that are relevant to the particular case. This was explained in Hesham Ali at paras 44-46, 50 and 53.” [Underlining added]
23. Therefore, in the present case, that the appellants did not meet the requirements for entry under paragraphs 319X or 297 of the Rules was a weighty, albeit not determinative, consideration in the balancing exercise. This was recognised by the judge at [55] where he says, “The Immigration Rules are not met and ordinarily an applicant who does not meet the Immigration Rules would not be expected to enter the UK.” It therefore follows that the judge was aware that in cases where an appellant does not meet the requirements for entry under the Rules, an appeal can only succeed outside of the Rules on Article 8 grounds where the appellant can demonstrate “exceptional” circumstances: see Agyarko at [54] to [60]
24. Second, at [58], the judge listed a number of factors that he found weighed on the respondent’s side of the scale. This included the lack of evidence to show how the appellants would sustain themselves without recourse to public funds. This stems from the judge’s findings at [53] that the appellants did not meet the requirements of paragraph 297(i)(f) because there was insufficient evidence that their father would be able to accommodate and financially support them without recourse to public funds. That undoubtedly was an additional factor weighing on the respondent’s side of the scale under s.117B(3) of the 2002 Act, which says that it is in the public interest that persons seeking leave to enter or remain in the UK are financially independent.
25. Other points identified by the judge at [58] are, we find, factors that arguably lessened the weight to be attached to the appellants’ side of the scale rather than added to the respondent’s side, but ultimately that is immaterial because the effect would have been the same. The judge found that the appellants could continue to be maintained in Côte d'Ivoire through remittances from their father and that they could continue to be educated in their home country. The judge then refers to one point weighing in the appellants’ favour: their desire to live with their father in the UK. While we accept that the judge’s assessment of the factors on the appellants’ side of the scale is brief, we do not find this to be a material error of law. That is because reading the decision as a whole, it is clear that the judge was not persuaded on the evidence that the sponsor had sole responsibility for the appellants or that the continuation of the status quo would lead to serious and compelling or other circumstances for them for the purposes of paragraph 297(i)(f) of the Rules. If the same reasoning was expressly incorporated into the passages of the decision relating to Article 8 outside of the Rules, then on any measure the public interest considerations would have outweighed the appellants’ rights.

Conclusion – Error of Law
26. For the above reasons, we are satisfied that the judge’s decision is not vitiated by a material error on a point of law. The decision shall therefore stand.

Notice of Decision
The appeals are dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5th September 2025