Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2025-001359
First-tier Tribunal Number: HU/52878/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued

On 12th of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

SHERNECIA NAOMI RICHARDS
(Anonymity order not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Corbin, Solicitor
For the Respondent: Mr Walker, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 6 June 2025
The Appellant
1. The appellant is a citizen of St Vincent and the Grenadines (SVG) born on 21 January 2014 and is therefore now 11 years old. She appeals against a decision of the respondent dated 2 February 2024 which refused her application to enter the United Kingdom to join her mother (“the sponsor”) who in turn had entered the United Kingdom in January 2020 in order to join the British armed forces. The appellant’s appeal was allowed on the papers by the First-tier Tribunal on 12 February 2025 and the respondent appeals against that decision. Although this matter comes before me as an appeal by the respondent I shall nevertheless refer to the parties as they were referred to at first instance in the interests of clarity.
2. As will be seen, this appeal has had a slightly unusual history because following the February 2024 decision the appellant was subsequently issued with a visit visa and entered the United Kingdom on 8 July 2024. She has been living with the sponsor in the United Kingdom since that date. The respondent appears to have been influenced in the subsequent decision to grant entry clearance to the appellant as a visitor by reason of certain ill-treatment the appellant had suffered in SVG at the hands of a family member and because the appellant’s family had been adversely affected by hurricane Beryl which had struck SVG on or about 1 July 2024.
3. The appellant had asked for her appeal against the February 2024 decision to be dealt with on the papers and the respondent had not objected to that course. The First-tier Tribunal judge considered whether he could proceed on the papers and after referring to the authority of SSGA Iraq [2023] UKUT 00012 held that he could.
The Appellant’s Case
4. The appellant’s case was that she could no longer live in SVG. The sponsor had sole responsibility for the appellant. The appellant had been physically abused by a cousin of the sponsor and the sponsor had moved the appellant to stay with the appellant’s grandparents in SVG but their home had been wrecked by the hurricane. Therefore the appellant had had to travel to the United Kingdom and could not now return to SVG.
The Decision at First Instance
5. In his determination the judge set out that there were two issues in the case. The first was whether the appellant could bring herself within the immigration rules specifically Appendix Armed Forces in the light of the sponsor’s proposed application to join the British Armed Forces. The judge held that the appellant could not bring herself within the rules because by reason of paragraph 42 (a) the sponsor had to show that she was already a serving member of the Armed Forces which she could not do. Furthermore by virtue of paragraph 42 (b) for the reasons which the judge gave including financial contributions from the appellant’s father, the appellant could not show that the sponsor had sole responsibility for the appellant. The judge therefore dismissed the appeal on the basis of the rules and there has been no onward appeal against that part of the determination. The judge proceeded to decide the second issue that the refusal to allow the appellant entry clearance breached this country’s obligations under article 8 (right to respect for private and family life) of the Human Rights Convention. The judge found that the consequences of refusing the application were unjustifiably harsh. The appellant could not return to SVG because of the damage caused by the hurricane. The judge allowed the appeal under article 8.
The Onward Appeal
6. The respondent appealed against this decision on the grounds that the judge had no jurisdiction to hear the appeal. The decision under appeal in this case was to refuse entry clearance but the respondent had subsequently granted entry clearance to the appellant albeit in a different category to the one which the appellant had originally sought by her application made on 15 August 2023. The judge failed to address the issue of the decision under appeal and the respondent was left in the position of not understanding why the appellant’s appeal against refusal of entry clearance made in the February 2024 decision had been allowed.
7. Permission to appeal was granted by the First-tier Tribunal on 21 March 2025 which noted that it was the original (February 2024) refusal decision was under appeal and that the sponsor could not meet the rules. The judge had failed to explain why if the sponsor hersel had not been granted leave the appellant should nevertheless be granted leave outside the rules. This failure was arguably an error of law.
The Hearing Before Me
8. In consequence of the grant of permission the matter came before me to determine in the first place whether there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.
9. For the respondent it was noted that the sponsor was now working as a carer which was why the financial requirement of sponsorship could be satisfied. However the sponsor was not qualified to be a sponsor at the present time as she had no leave. The judge should not have used article 8 as a “get out of jail free card”.
10. In reply for the appellant it was noted that the respondent’s grounds of onward appeal did not specifically dealt with the judge’s findings under article 8. The judge was aware of the provenance of the appeal before him and allowed the appeal because of the sponsor’s circumstances as well as the appellant’s position. It was in the best interests of the appellant to remain in the United Kingdom being looked after by the sponsor. The respondent’s grounds essentially challenged the jurisdiction of the judge to hear the appeal. In granting the appellant the right to enter the United Kingdom as a visitor the respondent was aware of the need for the appellant to be with her mother. The appellant’s solicitor confirmed that there was no challenge to that aspect of the determination which had dismissed the appellant’s appeal under the immigration rules. The presenting officer in reply indicated he had nothing further to add to what had already been said.
Discussion and Findings
11. The first issue I have to decide is whether there is in fact a valid appeal in front of me. The appellant originally applied for leave to enter the United Kingdom to join (that is to say live with and not merely visit) her mother. Subsequently she was granted entry clearance as a visitor but that entry clearance could only last six months after which the appellant would have to return to SVG because a visitor’s visa did not permit switching. Thus what the appellant was in fact granted in the subsequent decision to admit her was inferior to what she had actually applied for but which had been refused. The appellant was therefore justified, I find, in continuing with an appeal against the original refusal of entry clearance because if allowed it would be materially different to the status the respondent in exercise of her general discretion had in fact granted the appellant. If there was a valid appeal before the judge the matter still had to be determined.
12. The judge was correct in his analysis to state that there were two issues before him. The first was whether the appellant could bring herself within the immigration rules specifically Appendix Armed Forces but the appellant could not do this because it meant that the sponsor would have to show that she was either a serving member of the armed forces or that she had sole responsibility for the appellant. The sponsor could not show either of these two contentions and the judge dismissed the appeal on that basis. There has been no subsequent appeal against that part of the determination.
13. The judge nevertheless went on to consider whether the appellant could succeed outside the rules under article 8. To succeed in this way the appellant would need to show that the consequences of refusing her application were unjustifiably harsh. What the appellant relies on for this part of her appeal is that the home where she had been placed by the sponsor namely with the appellant’s grandparents had been severely wrecked by the hurricane and could no loger provide adequate shelter for the appellant. That may or may not be a situation which is unjustifiably harsh but the respondent’s objections on this point are somewhat undermined by reason of the fact that the respondent herself granted the appellant entry clearance because the respondent accepted the situation the appellant was in following the hurricane and the abuse by the sponsor’s cousin.
14. It was a judgement call for the judge to decide whether the appellant’s circumstances in SVG were such that to refuse the application would lead to unjustifiably harsh consequences. The judge gave his reasons why he considered that the consequences would be unjustifiably harsh and those reasons were, I find, open to the judge on the evidence before him at the hearing.
15. As the judge pointed out it may have been assistance to the tribunal if the grandparents had given some evidence about the destruction of their home and their inability to care for the appellant as a result. However this was a hearing on the papers, and the judge could proceed on the basis that credibility was not in issue because if it was the respondent would have had to have asked for a live hearing in order to cross-examine the sponsor on the point. Thus the judge was entitled to accept the sponsor’s evidence that the grandparents were not in position to look after the appellant because of the damage caused by the hurricane.
16. There is a further point arising in this appeal which is that as a result of the appellant succeeding at first instance the sponsor is in a somewhat anomalous position in that she will have changed from being the sponsor of the appellant to being the dependent of the appellant. The appellant may become the sponsor of her mother since the sponsor’s position is still precarious at the presnt time as she awaits the outcome of her own appeal against refusal to extend her leave. It may therefore be a relevant circumstance in the sponsor’s own appeal that the appellant has succeeded under article 8.
17. The appellant’s best interests were held by the judge to be to continue to live with the sponsor. The judge acknowledged himself earlier in the determination that whilst the best interests of the child were a primary concern, they were not the primary concern but had to be balanced against other factors. One of the factors which would weigh heavily in the balancing exercise was that the appellant could not satisfy the rules but against that the respondent herself had accepted that the appellant could not continue to live in SVG because of the hurricane. I find that the judge did bear these contrasting factors in mind in arriving at his decision.
18. I do not find therefore there is any material error of law in the judge’s assessment of the article 8 claim. The tribunal must be astute to recognise that article 8 is not being used to circumvent the rules. The particular facts of this case including the decision of the respondent to subsequently admit the appellant and her reasons for so doing mean that I am satisfied that the judge was not using article 8 to circumvent the rules but was considering the circumstances and weighing up matters appropriately in the balancing exercise. I do not find therefore there is any material error of law in the judge’s decision and I dismiss the respondents onward appeal.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and I dismiss the respondent’s onward appeal.
Respondent’s appeal dismissed.
No anonymity order was made at first instance and I have not been asked to make such an order. I therefore make no anonymity order.

Signed this 6th day of June 2025

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge