Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001528
(HU/59550/2024)
(LH/06494/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 June 2025

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
AND

FN (PAKISTAN)
Respondent

Representation:

For the Appellant: Mr Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr Sowerby, Counsel instructed by Pioneer Solicitors

Heard in Field House on 2 June 2025

Anonymity

Unless and until a tribunal or court directs otherwise, the Respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify her. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

DECISION AND REASONS

1. The Respondent is a national of Pakistan born in 2011. On the 10 January 2025 the First-tier Tribunal allowed her appeal on human rights grounds. The Secretary of State now has permission to appeal against that decision.

2. The basis of the Respondent’s human rights claim was that she qualified for entry clearance as the child of a person with limited leave as a partner in the UK. The circumstances of the case were that in 2012, when she was only one years old, the Respondent’s parents were divorced. She remained living with her mother, Ms K. Shahzadi. Ms Shahzadi subsequently remarried, and had three more children, born in 2018, 2021 and 2023. At all material times the Respondent lived in Pakistan with these half-siblings, her mother and stepfather. In June 2023 her stepfather died. Her mother remarried, this time to a British citizen residing in the UK. Ms Shahzadi made applications for herself, and all four of her children, to come to the UK to live with her new husband. The applications of Ms Shahzadi and the younger children were all approved and visas issued. Only the Respondent was refused, the Entry Clearance Officer finding there to be insufficient evidence relating to any relationship she might still have with her birth father.

3. The Respondent appealed to the First-tier Tribunal. On appeal there were two matters in issue arising under the rules. First, whether Ms Shahzadi had “sole responsibility” for her daughter’s upbringing. Second, whether there were “serious and compelling family or other considerations” making her exclusion undesirable. It was common ground that if the Respondent could discharge the burden of proof in respect of either one of those matters, then she would succeed in her appeal because the SSHD would be unable to show the decision to be proportionate, and therefore lawful: TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109.

4. The First-tier Tribunal was not satisfied as to the first of these alternate tests, but did find in the Respondent’s favour on the second. The Tribunal had regard to the decision in Mundeba (s55 and para 287(i)(f)) [2013] UKUT 00088 (IAC) in which guidance was given, by a Presidential panel, about the kind of things that should be taken into account when the test of “serious and compelling family or other circumstances” is applied. It would include an evaluation of the child’s welfare and emotional needs, whether the applicant is living in an unacceptable social and economic environment, whether there is evidence of abuse or neglect; whether there are unmet needs which cannot be catered for and whether there are stable arrangements for the child’s physical care. Having considered that guidance, the Tribunal squarely and clearly concludes that there was no evidence before it to indicate that the Respondent’s living conditions in Pakistan were anything other than adequate. At the date of the visa applications she had been living with grandparents, and at the time of the appeal was with an uncle. She had other family members living in Pakistan. The Tribunal then notes that the Respondent had, until that point, lived all of her life with mother, to whom she must have formed an emotional attachment, and says this:

“42…I find at the age of 14 the appellant has no material private or family life beyond the need to live with her mother, the parent she has formed strong bonds with and even without a Psychological report before me, I have no doubt, using common sense , that this appellant must feel abandoned, being separated from her mother and siblings and that this will have serious impact on her emotional well-being.

43. I remind myself that children need the emotional support, guidance and nurturing of their parents and the question for me is why this appellant should be left without the emotional support she needs , when she has her mother , who is willing and able to continue caring for her and providing for the appellant’s emotional needs . I have also borne in mind the importance of family unity and that the underlining purpose of the Immigration Rules is to unite families and not to divide them.
44. I find if the appellant is left in Pakistan , this would impact on her emotional wellbeing and could make her vulnerable and exposed to emotional harm”.

5. On that basis the appeal was allowed.

6. The Secretary of State sought, and was granted, permission to appeal on the grounds that the judge made “contradictory, and therefore irrational” findings, and failed to apply the correct threshold as required by Mundeba. It is worth replicating verbatim what the grounds actually say:

(g) Although the FTTJ has made reference to the Upper Tribunal decision in Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088(IAC), it is submitted that they have failed to correctly apply the findings of the Upper Tribunal when allowing the Appellant’s appeal.

(h) At headnote (iv) of Mundeba the Upper Tribunal state the following (emphasis added),

“Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a. there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.”

i) As the FTTJ has found that there is no evidence of abuse or neglect and there are stable arrangement for the appellant’s physical care, it is submitted that the FTTJ has made a material misdirection in law in concluding that there are, “...serious and compelling family or other considerations which make exclusion of the appellant undesirable.

7. I find these grounds to be entirely without merit for the following reasons.

8. The first is that there is no contradiction at all in the Tribunal having found on the one hand that the child’s physical living environment was adequate, and on the other that she would be suffering from significant emotional harm by being separated from her mother, who has been her primary attachment figure for her entire life. These are two separate questions, and one cannot rationally be said to defeat the other.

9. The second is that the Secretary of State has, with respect, completely misunderstood, or misrepresented, what is said in Mundeba. It seems to me that the matters set out at sub-paragraphs (a)-(c) at headnote (v) are not primarily concerned with “serious and compelling family considerations”: they are concerned with the second limb of the test, “other considerations”. See my alternative highlighting:

“Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-

a. there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.”

10. In any event they are certainly not, as the grounds seem to suggest, a list of mandatory requirements. They are simply a reference to the kind of matters that a Tribunal, tasked with undertaking this fact-sensitive assessment, should take into account. That the drafter of the grounds has only emphasised some of the words does not change that. As is quite clear from the First-tier Tribunal’s decision, it gave specific consideration to all of those matters. Having done so it was perfectly entitled to conclude that the emotional impact on a child of being stranded when all the remainder of her family is here was both “serious” and “compelling”.

Decisions

11. The decision of the First-tier Tribunal is upheld and the appeal of the Secretary of State is dismissed.

12. There is an anonymity order in this matter because the Respondent is a child.

13. In light of the Respondent’s young age, and her ongoing separation from her mother and siblings, the SSHD will no doubt now wish to expedite the grant of entry clearance.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
2nd June 2025