Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2025-001212

First-tier Tribunal No: HU/52973/2024
IA/00973/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

O.R.E
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr T Oggunubi, Solicitor, TM Legal Services
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Hearing Centre on 13 August 2025
Decision and Reasons
Introduction
1. The appellant is a national of Nigeria. She arrived in the United Kingdom on 17 May 2008 as a visitor with leave valid until 17 November 2008. On 15 January 2024 she applied for leave to remain in the UK as the partner of Mr Isaac Mukaro. The respondent concluded that the appellant does not meet all the eligibility requirements set out in section S-LTR of Appendix FM. The appellant’s appeal against that decision was dismissed by First-tier Tribunal (“FtT”) Judge O’Hagan (“the judge”) for reasons set out in a decision dated 25 January 2025.
2. The appellant claims the decision of the judge is tainted by material errors of law as set out in the Grounds of Appeal. In summary, the appellant claims the judge failed to properly consider the Article 8 claim in light of the decision of the Court of Appeal in MA (Pakistan) [2016] EWCA Civ 705 and s117B(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). It is said that if a person such as the appellant, who is not liable to deportation, has a genuine and subsisting parental relationship with a qualifying child, and it would not be reasonable to expect the child to leave the United Kingdom, the public interest does not require the person's removal. The judge found that the appellant has established a family life with her partner’s children [I] and [T], albeit [T] is not a child. The appellant also claims the judge failed to engage with the evidence relied upon and failed to carry out a proper assessment of the claim. The appellant claims that when addressing whether any ‘exceptional circumstances’ exist, the Tribunal was aware that the appellant’s partner is not a national of Nigeria, does not speak the language, has a different cultural background and has established ties to the UK. The judge failed to consider whether there are insurmountable obstacles to the family life continuing outside the UK and whether it would be unduly harsh for the children to remain in the UK in the event that the appellant and her partner live together in Nigeria.
3. Permission to appeal was granted by FtT Judge Murray on 12 March 2025. Judge Murray said:
“2. The grounds assert that the First-tier Tribunal Judge (FTTJ) erred in failing to properly consider Article 8 in light of section 117 B (6) of the 2002 Act. It is asserted that the FTTJ failed to apply the correct immigration rules and give weight to the documentary evidence.
3. The FTTJ found that family life existed between the Appellant and the sponsor’s two children, “I” and “T”. As T was 19 years old at the date of the hearing section 117 B (6) could not apply to her. However, “I” was 16 years old and therefore the FTT should arguably have considered whether the appellant had a genuine and subsisting parental relationship with a qualifying child, and whether it would not be reasonable to expect the child to leave the UK. It is unclear what documentary evidence the FTTJ should have and did not consider and what Immigration Rules were allegedly not considered as this is not particularised. Permission is granted in respect of the ground in relation to section 117 B (6) only.”
The Hearing of the Appeal before Me
4. At the outset of the hearing, Mr Oggunubi confirmed that at the heart of the appeal is the judge’s consideration of the public interest considerations set out in s117B of the 2002 Act and in particular, s117B(6). Mr Oggunubi submits the judge describes the nature of the loving relationship between the appellant and [I] and [T] at paragraph [18] of the decision. The judge confirms, at [18], that “on balance, family life exists of real, committed and effective support between the appellant, I and T and that Article 8(1) ECHR is therefore engaged. Mr Oggunubi submits that having found that ‘family life’ for the purposes of Article 8 exists, it follows that the appellant has a genuine and subsisting parental relationship with a qualifying child, [I]. On any view, Mr Oggunubi submits, it would not be reasonable to expect [I] to leave the United Kingdom. Therefore, section 117B(6) of the 2002 applies such that the public interest does not require the appellant’s removal. Mr Oggunubi referred me to the evidence in the form of a letter from [I] (undated) that was before the FtT.
5. In reply, Ms Blackburn adopted the rule 24 response dated 18 March 2025. The respondent submits s117B(6) of the 2002 Act requires the appellant to satisfy the Tribunal that she has a genuine and subsisting parental relationship with [I]. The appellant did not claim, before the hearing, that she has a ‘parental relationship with [I] and in any event there was no evidence before the FtT to support such a claim. The evidence of the appellant’s partner is that he collects [I] and [T] from their mother’s house where they live, and they spend time with the appellant and him every fortnight. The respondent refers to the decision of the Upper Tribunal in R (RK) v Secretary of State for the Home Department (s117B(6); “parental relationship”) [2016] UKUT 00031 and claims the appellant did not claim to have “stepped into the shoes of a parent” in the way required.
6. Mrs Blackburn submits it is clear from what is said in paragraph [13] of the judge’s decision that the judge had taken into account the relevant public interest factors set out in section 117B of the 2002 Act. The judge had in mind the nature of the appellant’s relationship with [I] and [T] as set out in paragraph [18] of the decision, but that is not to say that the appellant has a genuine and subsisting parental relationship with [I]. The children live with their mother and she is their primary carer. The appellant may meet and support the children in their different endeavours in life, but there was no evidence at all that the appellant has any parental role in the lives of the children. Ms Blackburn refers to the decision of the Upper Tribunal in Ortega (remittal; bias; parental relationship) [2018] UKUT 00298 (IAC), in which the Upper Tribunal referred to the earlier decision in RK and said in headnote [3] that “…It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child's life as the child's parents.”
7. At the conclusion of the hearing before me I informed the parties that I am satisfied that there is no material error of law in the decision of the FtT and that I dismiss the appellant’s appeal to the Upper Tribunal. I said that I would give my reasons in writing and this I now do.
Decision
8. The grounds of appeal as formulated mount a general attack on the findings and conclusions reached by the judge with vague assertions that are not particularised in the grounds of appeal, and were not elaborated upon by Mr Oggunubi in his oral submissions before me. I therefore consider the grounds of appeal as a whole. The focus of Mr Oggunubi’s oral submissions was upon the finding by the judge that family life exists and Article 8 is engaged, and the failure of the judge to therefore conclude that by operation of s117B(6) of the 2002 Act, the public interest does not require the appellant’s removal.
9. The appellant appealed the respondent’s decision to refuse her application for leave to remain under s.82 of the 2002 Act on the ground that the decision is unlawful under s.6 of the Human Rights Act 1998. The appellant relied upon Article 8 ECHR. The judge identified the issues that were not in dispute at paragraph [5] of the decision. The judge noted, at [5(e)], that it was not disputed that family life exists between the appellant and her partner (sponsor), as well as between the appellant’s partner and his children. It was uncontroversial therefore that Article 8 is engaged. Like in many such appeals, the judge recorded, at [6], that the issue in the appeal is whether the respondent’s decision would result in a disproportionate breach of the rights of the appellant, her partner and his children under Article 8.
10. It was also uncontroversial, as the judge recorded at paragraph [11] of the decision that the appellant cannot rely upon the partner route under Appendix FM of the immigration rule. The judge found, at [14], that paragraph EX.1 of the rules does not apply. That finding is not challenged. It follows that on any view, the appellant could not meet the requirements for leave to remain as set out in the Immigration Rules and Appendix FM in particular. All that the appellant was left with is an Article 8 claim outside the rules. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, Lord Reed emphasised that the failure to meet the requirements of the Immigration Rules is a relevant and important consideration in an Article 8 assessment because the Immigration Rules reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament.
11. The judge heard evidence from the appellant and her partner and found both to be witnesses of truth. The judge addressed the appellant’s relationship with her partner’s children and how that relationship developed at paragraph [17]. The judge said at paragraph [18] that the appellant has a loving relationship with [I] and [T], and that she meets them regularly in a family-unit setting during which she provides them with support in their different endeavours in life. That, in summary, describes the nature and extent of the family life enjoyed by the appellant with the children and [I] in particular. Mr Oggunubi referred me to the letter that was before the FtT from [I]. The focus of the letter is upon the relationship with his father, but there is reference to “Aunt Rebecca” also being involved in his life and supporting him by attending football practice and competitions. It is plain that the judge had that evidence in mind when describing the nature of the relationships at paragraph [18] of the decision.
12. In reaching the decision, the judge was required to have regard to the public interest considerations set out in s117B of the 2002 Act. Section 117A(2) of the 2002 Act expressly requires that in considering the public interest question, the court or tribunal must (in particular) have regard to, in all cases, the considerations listed in section 117B. For the purposes of s117B(6) of the 2002 Act, the public interest does not require a person's removal where that person has a genuine and subsisting parental relationship with a child and it would not be reasonable to expect the child to leave the United Kingdom.
13. I do not accept, as Mr Oggunubi submits, that the finding that family life exists between the appellant and [I], is in effect, a finding by the judge that the appellant has a genuine and subsisting parental relationship with [I] who is a qualifying child. Whether the appellant has ‘a parental relationship’ depends on the individual circumstances of the case. At the outset of the hearing before me by way of clarification, Mr Oggunubi confirmed both [I] and [T] are the biological children of the appellant’s partner. He is separated from their mother. The children live with their mother and she is responsible for the day to day care of the children.
14. Mr Oggunubi was unable to draw my attention to any evidence before the FtT that even begins to suggest that the appellant plays some form of ‘parental role’ in [I]’s life, let alone evidence capable of establishing that she has stepped into the shoes of a parent. As the Upper Tribunal said in Ortega (remittal; bias; parental relationship); “…It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child's life as the child's parents.”. No such evidence was before the Tribunal to form the building blocks of such a claim.
15. A fact-sensitive analysis of the evidence was required. Standing back, it is clear that in reaching the decision, the judge considered the factors that weigh in favour of the appellant and against her, when undertaking the ‘balancing exercise’ relevant to proportionality. It was in my judgment open to the judge to conclude at [24] that the factors that weigh in favour of the appellant do not outweigh the public interest in effective immigration control. The issue in the appeal was whether the decision is proportionate. Reading the decision as a whole, it was undoubtedly open to the judge to conclude that the scales fall on the side of the public interest and the respondent’s decision is proportionate.
16. The judge identified the core issues in this appeal as set out by the parties. I am satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. Although "error of law" is widely defined, it is not the case that the Upper Tribunal is entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
17. I am satisfied that there is no material error of law in the decision of the FtT and it follows that I dismiss the appeal.

Notice of Decision
18. The appellant’s appeal to the Upper Tribunal is dismissed.
19. The decision of First-tier Tribunal Judge O’Hagan stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 August 2025