Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001245

First-tier Tribunal No: HU/51054/2024
LH/05877/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 June 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE WILSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SAHAR ABDELFATAH GADER IBRAHIM
Respondent

Representation:
For the Appellant: Ms Simbi, Senior Home Office Presenting Officer
For the Respondent: Ms Solanki, instructed by RBC Immigration Consultancy

Heard at Cardiff Civil Justice Centre on 11 June 2025

DECISION AND REASONS
1. The Secretary of State for the Home Department (“the SSHD”) appeals with permission against the decision of the First-tier Tribunal (“the FTT”) to allow Mrs Ibrahim’s appeal against the SSHD’s decision to refuse her entry clearance to the UK to join her British husband and their five British citizen children. Mrs Ibrahim had applied for entry clearance on 3 October 2023, at which date her children ranged in age from 22 to 6.
2. For the sake of clarity, we will refer in our decision to the parties as they were before the FTT, such that any references to the “appellant” are to Mrs Ibrahim and to the “respondent” are to the SSHD.
3. The appellant is a citizen of Sudan, and it is accepted that she fled from Sudan to Saudi Arabia to escape the civil war. At the date of her application for entry clearance (and at the date of the hearing), she was still living in Saudi Arabia.
4. The FTT made a series of factual findings, none of which have been challenged by the respondent. They include that:
(i) It was accepted by the respondent at the hearing that the appellant met all of the requirements for entry clearance as a spouse under Appendix FM, except for the financial requirement and the requirement to produce a TB certificate from a test centre authorised by the SSHD: [19].
(ii) The respondent further accepted that the appellant had fled Sudan due to the civil war ([29]), that there were no authorised TB centres in Saudi Arabia, and that she had obtained a certificate showing that she was free of TB from a centre that was approved by the Australian Immigration and Home Affairs Department: [21]. Para. TB5 of the immigration rules was therefore met: [29].
(iii) It was not disputed that the children were living with their mother in a family unit until the outbreak of the civil war and it was the civil war that had caused their separation, because the appellant had not been able to obtain permission to come to the UK: [25].
(iv) The older children were “young people” living at home and still dependent on their mother for their day to day needs, while the youngest two children “are still young children requiring their mother’s care”. There was evidence from their school confirming the “detrimental effect” on them of “being separated from their mother”: [25].
(v) It was in the children’s best interests to be reunited with their mother: [32]
(vi) The appellant could not meet the financial requirements of the rules “currently”, because the sponsor relied in part on Universal Credit to reach the required threshold. However, the FTT noted the sponsor’s evidence that he had previously worked full-time but “was unable to do so currently due to the child care needs of his two youngest children” and his assertion that “if his wife was able to join them in the UK then […] he would be able to work full time and maintain his family financially”. The FTT found that the financial requirements of the rules would be “likely” to be met after the appellant entered the UK: [20].
(vii) It was the respondent’s position, as set out in her CPIN, that the humanitarian situation in the family’s home area in Sudan was so severe that any person there was at real risk of violations of article 3 ECHR: [23]. Specifically, there was ongoing fighting, a lack of infrastructure, many people were without access to water and sanitation, and the appellant would be particularly at risk as a lone woman. The appellant would be at real risk of violations of article 3 in her home area and face “very significant obstacles” anywhere else in the country: [24]. There would be very significant obstacles to the British family members visiting the appellant in Sudan if she were to return there [30], and they could not reside there safely: [31].
(viii) The appellant had overstayed her visa in Saudi Arabia and was at risk of fines, imprisonment for up to 6 months, or deportation: [22]. Under these circumstances, there would be very significant difficulties in maintaining family life through visits by the British family members to Saudi Arabia: [30].
(ix) The objective evidence showed that the appellant would be unable to obtain leave to enter any neighbouring countries: [30].
(x) For these reasons, “the Appellant being denied leave to come to the UK means that effectively” the British family members “are cut off from their mother and wife”: [31]. Family life could not continue anywhere outside the UK: [35]
5. None of these factual findings have been challenged.
The FTT’s decision
6. The FTT directed itself as follows: The issue for it to determine was whether the refusal decision breached the UK’s obligations under article 8, and if the appellant did not meet the immigration rules, “the public interest is normally in refusing leave to enter or remain.”: [9] “The exception is where refusal results in unjustifiably harsh consequences for the Appellant or a family member such that refusal is not proportionate.”: [10] Deciding whether the decision was proportionate required applying the five-step test set out in Razgar [2004] UKHL 27 ([16]) and having regard to the considerations set out at Section 117B of the Nationality, Immigration and Asylum Act 2002: [17]. Whether the appellant met the immigration rules was also relevant to the proportionality assessment: [26] There is no error in this self-direction.
7. Where the FTT clearly did err was in identifying the immigration rule that applied to this application. The FTT identified the financial rule that the appellant needed to meet as that set out at Para. R-LTRP.3.1 of Appendix FM. This provides that a partner or parent does not need to demonstrate that they meet the minimum income threshold where Para. EX.1 is met (in this case, where there are insurmountable obstacles to family life continuing outside the UK). However, the appellant has applied for entry clearance, and therefore the financial requirement she was required to meet is set out at E-ECP.3.1. This contains no reference to EX.1.
8. At [33]-[35], the FTT carried out a balancing test, weighing the “significant weight of maintaining effective immigration control” against the various factors weighing in the appellant’s favour. These included all of the factual findings set out above at [4] of our decision, but also that the appellant satisfied the requirements of the immigration rules because “the lack of fulfilment of the financial requirements is remedied under EX.1” The FTT concluded that the balance fell in the appellant’s favour.
The grounds of appeal
9. The respondent applied for permission to appeal on the grounds that the FTT had erred by allowing the appeal with reference to EX.1, because EX.1 does not apply in applications for entry clearance. It was said in the grounds that this was material because in its article 8 balancing test, the FTT had weighed the appellant’s ability to meet the rules (in reliance on EX.1) “heavily” in her favour and had “overlooked” her failure to meet the financial requirements.
10. The appellant filed a Rule 24 response. The appellant accepted that the FTT had erred by referring to EX.1 but argued that the error was not material because:
(i) The FTT had clearly allowed the appeal under article 8, as could be seen from the fact that it had referred to article 8 throughout the decision and set out the relevant caselaw and statutory considerations;
(ii) Throughout her claim and appeal, the appellant had relied on the “unjustifiably harsh consequences” of the refusal decision, with reference to Para. GEN 3.1-3.3, not on EX.1. The FTT then did refer itself to the “unjustifiably harsh consequences” at [10]. This was the correct test.
(iii) The FTT’s unchallenged factual findings meant that the refusal decision had unjustifiably harsh consequences for the appellant’s children, as defined in the respondent’s guidance, Family Policy: Family life (as a partner or parent), private and exceptional circumstances, and that GEN 3.1-3.3 was met. Thus, if the FTT had directed itself to the right immigration rule, it would still have found that the rules were met, relying on GEN 3.1-3.3 rather than EX.1.
The hearing
11. The error of law hearing in this appeal was held at the Cardiff Civil Justice Centre. The panel and Ms Simbi were present in person, and Ms Solanki appeared by CVP.
12. Both sides were in agreement that the FTT had erred by considering EX.1. Ms Solanki submitted that the decision would inevitably have been the same. She drew our attention to the skeleton arguments and written legal submissions that were before the FTT, which showed that the appellant’s case had always been that the appellant met both GEN 3.1-3.3 of the rules and the terms of the respondent’s guidance defining “unjustifiably harsh consequences”. Any reasonable tribunal correctly applying GEN 3.1.-3.3. or article 8 outside the rules to the unchallenged findings of fact in this case would inevitably have come to the same conclusion.
13. After considering the extent of the unchallenged findings of fact, GEN 3.1-3.3 and the respondent’s guidance, Ms Simbi confirmed that she had no submissions to make as to why the error was material.
14. At the end of the hearing, we gave our decision dismissing the respondent’s appeal and a brief summary of our reasons for doing so. We now set those reasons out in writing.
Discussion
15. We have had regard to the guidance of the Court of Appeal in ASO (Iraq) v SSHD [2023] EWCA Civ 1282 and reminded ourselves that in order to decide whether an error was material we must decide, first, if there were any errors. In this case, that is agreed. We must then decide:
“Second, […] the nature and extent of any […] errors, and to what extent, if any, the decision rested on those errors. Third, it is not possible to decide whether any errors are material without considering whether a rational tribunal would have been bound to come to the same decision on the evidence which the F-tT considered.”
16. We find that the decision did not rest on the FTT’s error about whether EX.1 applied. We accept that the FTT did weigh the appellant’s purported ability to meet the rules in her favour, but we disagree with the statement in the respondent’s grounds, which Ms Simbi expressly declined to pursue before us, that it weighed it “heavily” in her favour. On the contrary, the FTT weighed the appellant’s ability to meet the rules significantly less in her favour than is normally the case. In accordance with TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109 [30], where an appellant meets the rules, this can be treated as resolving the balancing test in their favour (in the absence of countervailing factors). That was not the approach the FTT took in this case. The FTT went on to conduct a detailed balancing test, with reference to the specific factual findings it had made.
17. Nor do we agree with the submission (also not pursued before us) that the FTT overlooked the appellant’s inability to meet the financial requirements. In conducting the article 8 balancing test, FTT referred twice to the public interest in immigration control as weighing against the appellant, and this can only refer to her inability to meet the financial rules, as there were no other countervailing factors. Moreover, as to the consideration that it is in the public interest for migrants to be financially independent, the FTT would not have weighed this against the appellant regardless of whether EX.1 applied, because it had made a clear finding at [20] that it was “likely” that the appellant’s presence would enable the sponsor to support his family in the future.
18. Finally, we consider that no rational tribunal would have resolved the article 8 balancing test against the appellant, given the unchallenged findings about the impact of separation on the appellant’s British family, the best interests of the two youngest children, the inability of the family to continue their family life anywhere outside the United Kingdom, and the lack of any countervailing factor other than the family’s inability to meet the financial requirement, which the FTT had specifically found was likely to be remedied by the appellant’s presence in the UK. Miss Simbi did not make any submissions to the contrary.
Notice of Decision
The decision of the FTT involved the making of an error of law but it was not material. The decision is therefore upheld, with the consequence that the appellant’s appeal against the respondent’s refusal of her application for entry clearance is allowed on article 8 grounds.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber 20 June 2025