Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001622

First-tier Tribunal No: PA/53411/2023
LP/08574/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th January 2026

Before

UPPER TRIBUNAL JUDGE PINDER

Between

J M
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr O Sobowale, Counsel instructed by Central England Law Centre.
For the Respondent: Mr S Simbi, Senior Presenting Officer.

Heard at Birmingham Civil Justice Centre on 19 September 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals the decision of the First-tier Tribunal (‘the FtT’). On 21st February 2025, the FtT dismissed the Appellant’s appeal against the Respondent’s decision of 26th May 2023 refusing the Appellant’s protection and human rights claim.
2. I have maintained the Anonymity Order in favour of the Appellant, made at first instance, and which the Appellant seeks to continue in these proceedings. In particular, the Appellant had raised a claim to international protection but more importantly, he has a child and I am of the view that the Appellant’s family’s right to privacy, in relation to his child in particular, justifies a derogation of the principle of open justice.
Factual and Procedural Background
3. The Appellant is a national of Iran who entered the UK on 11th November 2021. He claimed asylum a few days later. The Appellant’s protection and human rights claim was refused by the Respondent on 26th May 2023. The Appellant’s appeal was heard in the FtT on 11th February 2025. At this appeal hearing, the Appellant pursued his appeal on protection grounds as well as under Article 8 ECHR. In respect of the latter, the Appellant raised his relationship with a British citizen, which had not been raised previously and therefore considered by the Respondent in her decision.
4. The Judge heard oral evidence from the Appellant himself, assisted by a Kurdish Sorani interpreter, as well as from his partner, who gave her evidence in English.
The decision of the First-tier Tribunal
5. I do not summarise here the Judge’s findings in respect of the Appellant’s protection claim, which the Judge dismissed. This is because none of these findings are challenged by the Appellant and the appeal to this Tribunal only concerns the Appellant’s human rights appeal under Article 8 ECHR.
6. Regarding the Article 8 claim, the parties agreed at first instance that the issues were whether the Appellant’s partner met the definition of a “partner” for the purposes of the Immigration Rules (specifically the provisions of Appendix FM to those Rules) and/or whether there were “insurmountable obstacles to family life continuing outside the UK” and/or “exceptional circumstances”. Alternatively, whether the Respondent’s decision was proportionate having regard to the public interest. The Judge recorded this at [28].
7. In dismissing the Appellant’s Article 8 appeal, the Judge’s findings of fact and conclusions include the following:
(a) The Appellant’s relationship with his partner is “genuine and subsisting” – [60];
(b) The partner does not fall within the definition of ‘partner’ in Appendix FM to the Immigration Rules, because specifically the couple had not been in a relationship similar to a marriage or civil partnership for at least two years before the date of the application – [60];
(c) On their own evidence, the couple only started cohabiting in January 2024. The Appellant’s partner’s pregnancy (also evidenced in the trial bundle) would have been conceived in late 2024 and the baby was then-due in July 2025 – [61];
(d) As the definition of ‘partner’ had not been met, the Appellant did not fall to be considered under Appendix FM of the Rules – [62];
(e) There is a private life between the Appellant and his partner, and the Judge accepted that she was pregnant with the Appellant’s child – [63];
(f) The decision to refuse the Appellant’s claim is of sufficient gravity to potentially engage Article 8 and the question to answer is whether the interference with the Appellant’s Article 8 right is proportionate to the legitimate public interest – [65];
(g) It would be “very difficult” for the partner to travel to Iran, as a female British Kurd. She would also face discrimination in Iran and she is not familiar with Iran, having been born in the UK. The Judge made other findings in favour of upholding the Appellant’s and his partner’s rights – see [66];
(h) The Judge reminded themselves that they must consider the public interest in maintaining efficient immigration controls and have regard to the relevant provisions contained in the 2002 Act. There was no material evidence that the Appellant spoke English and he is not financially independent, although he would hope to be in the future – [67];
(i) The Judge considered that significantly, the Appellant’s private life was established whilst his immigration status in the UK was precarious and both the Appellant and his partner were aware of the Appellant’s status at all material times. The Judge placed little weight on the Appellant’s private life – [68];
(j) The Appellant’s partner has her parents and other family in the UK to support and assist her to some extent throughout the pregnancy and thereafter. As a British citizen, she will be entitled to appropriate healthcare and benefits in the UK – [69].
8. Accordingly, the Judge dismissed the Appellant’s appeal. The Judge was satisfied at [70] that the Respondent decision to refuse the Appellant’s claim was proportionate. The Judge also stated as follows at [71]:
“For the avoidance of doubt, I have not specifically considered paragraph GEN 3.2 of Appendix FM of the Rules, as the Girlfriend does not meet the definition of “partner” in GEN 1.2, as discussed above. However, I am satisfied that there are no “exceptional circumstances” because of “unjustifiably harsh consequences”, for either the Appellant or the Girlfriend.“
The Appellant’s appeal to the Upper Tribunal
9. The Appellant was granted permission to appeal by a different judge of the FtT, who considered that it was arguable that the Judge had erred in their approach to the Appellant’s evidence that he and his partner had undertaken an Islamic marriage. Further, that it was arguable that the Judge had concluded that the Appellant and his partner could separate without this have been put to them in evidence and that the Judge had arguably failed to consider the factors set out at para 22 of the grounds for permission to appeal. These factors were as follows:
a. The emotional impact on the Appellant and his partner of being forcibly separated from each other;
b. The unchallenged evidence of the Appellant and his partner that, in their religion and culture, they are married as they have had a nikah and are cohabiting;
c. The emotional impact on the Appellant and his partner of him being forcibly separated from his unborn child;
d. The unchallenged evidence of the Appellant that the unborn child is being monitored for a potential hole in the heart.
10. In response, the Respondent filed and served a Rule 24 reply defending the Judge’s decision and the Appellant duly responded by way of a Rule 25 reply.
11. At the hearing, both parties’ advocates made further oral submissions on each of the grounds of appeal pursued and Ms Simbi, on behalf of the Respondent, defended the Judge’s decision. I have addressed the parties’ respective written pleadings and oral submissions in the section below when setting out my analysis and conclusions. At the end of the hearing, I indicated that my decision would be to find in favour of the Appellant on the errors of law pursued and I provided brief reasons for this orally. I set out my reasons in more detail immediately below.
12. Both parties were also agreed that following my decision on the errors of law pursued, it was appropriate for the matter to be retained in the Upper Tribunal for re-making. Following a short adjournment, both parties confirmed that they were ready to proceed to this second stage at the same hearing and accordingly, I heard oral submissions from both parties as to how I should re-make and dispose of the Appellant’s appeal. At the end of those submissions, I reserved my decision on re-making and I provide this further below with reasons.
Material errors of law in the Judge’s decision - Analysis and Conclusions
13. In elaborating on the grounds of appeal prepared by his predecessor, Mr Sobowale on behalf of the Appellant took me through the relevant provisions contained in para GEN3.2. of Appendix FM, which also applied to “another family member”. This paragraph of the Respondent’s Immigration Rules provides as follows (underlined emphasis added):
“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part Suitability, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
14. Mr Sobowale argued therefore that the Judge’s finding at [71], and which I have extracted at para 8 above, is clearly wrong since the Appellant’s partner fell to be considered as ‘another family partner’ even if she could not meet the definition of ‘partner’ contained in the same Immigration Rules. Mr Sobowale reiterated however that the real difficulty with the Judge’s approach is that the Judge limited their consideration to there being a ‘private life’ between the Appellant and his partner. Mr Sobowale argued that that also was clearly wrong since their relationship had been accepted as genuine and subsisting, they were cohabiting and expecting a child together. The failure to consider this under the prism of ‘family life’ amounted to a material error of law.
15. Separately but also in support of those submissions, Mr Sobowale also emphasised the fact that the Respondent did not cross-examine the Appellant nor his partner on a potential separation and whether that would be reasonable to expect. This amounted to procedural unfairness and in the alternative, even if this issue was live before the Judge, Mr Sobowale submitted that no reasons were given by the Judge for rejecting the Appellant’s case on this issue.
16. Ms Simbi submitted in response that the Appellant’s relationship and the fact of their pregnancy was presented as a ‘fait accompli’ despite the Appellant and his partner not meeting the requirements of the Immigration Rules on family life. Ms Simbi acknowledged that the Judge only referred to a private life being established between each other by the couple but categorised this as a ‘slip of the pen’. She further submitted all relevant factors had been assessed by the Judge relating to the difficulties that the Appellant’s partner would experience if she was expected to return to Iran. The fact remained that the Appellant’s relationship had been established when his leave was precarious and the reference to private life only did not make a material difference. The Judge considered why a separation for the couple was deemed to be proportionate at [69] and the Judge also considered that there were no unjustifiably harsh consequences at [71].
17. As confirmed with both parties at the conclusion of the parties’ submissions on whether the Judge had made material error(s) of law, I was satisfied that the Appellant had demonstrated through his grounds of appeal such errors. Whilst the Judge was correct to find that the Appellant’s partner did not come within the set definition within Appendix FM as they had not cohabited for long enough, I was satisfied that the Judge materially erred in failing to consider whether a family life had been established by the Appellant in the UK under Article 8 ECHR.
18. At [68], the Judge confirmed applying little weight to the Appellant’s private life but does not reach any finding on whether the Appellant’s relationship with his partner amounted to family life. Considering their relationship was accepted as genuine and subsisting and there did not appear to be any dispute to the evidence that they had been cohabiting for a period of over 12 months, I consider such a failure to be a material error of law. This is coupled with equivocal findings on the Appellant’s evidence of having undergone a Nikah ceremony with his partner and the unequivocal finding that the Appellant’s partner was expecting their child together.
19. Drawing this together, there is then a failure by the Judge to consider the consequences of the separation envisaged by the Judge at [69] as pleaded by the Appellant at para 22 of the grounds of appeal. If I am wrong about this, I am satisfied that the Judge has not given adequate reasons, if any, for finding that this does not amount to ‘exceptional circumstances’ on grounds of unjustifiably harsh consequences likely being experienced on separation.
20. For all of the reasons above, which I indicated to the parties at the hearing, I was satisfied that the Judge had materially erred in law and the FtT’s decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
21. As referred to at paras 11-12, I was able to indicate a summary of the above to both parties at the conclusion of the first stage of the hearing. Both parties also agreed that thereafter it was appropriate for the appeal to be retained in the Upper Tribunal pursuant to the guidance in para 7 of the Senior President's Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC). Both parties were also ready to address me at the same hearing, after a short adjournment, on how the appeal should be re-made and be disposed of. I duly heard oral submissions from both advocates each in turn and I reserved my decision on the re-making thereafter. I provide this below with my reasons.
Re-making - Analysis and Conclusions
22. Ms Simbi was helpfully able to confirm that the Respondent gave her consent, pursuant to s.85(6)-(6) of the 2002 Act, for the Tribunal to consider the new matter raised by the Appellant, namely the birth of his and his partner’s child on 12th July 2025. Ms Simbi also confirmed that she did not have any questions in cross-examination for either the Appellant or his partner.
23. I have given careful consideration to the parties’ oral submissions and to all of the written materials contained in the composite bundle, which includes the Appellant’s and his partner’s updating witness statements, both dated 9th September 2025.
24. Importantly, Ms Simbi accepted that it would not be reasonable to expect the Appellant’s child, as a British citizen, to leave the UK for Iran. On that basis, she submitted that it is whether it is reasonable and proportionate to expect the Appellant to separate from his partner and child on leaving the UK. On this aspect of the appeal, Ms Simbi confirmed that she had no further submissions to make on behalf of the Respondent.
25. I was reminded by Mr Sobowale in response that s.117B(6) of the 2002 Act is engaged. Namely that Parliament has recognised and enacted accordingly through s.117B(6) that the public interest does not require the Appellant’s removal from the UK if it is accepted that he has a genuine and subsisting parental relationship with a ‘qualifying child’. For ease, I have re-produced this section immediately below:
“(6)In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
26. The Appellant’s child is a British citizen and therefore comes within the definition of ‘qualifying child’ set out at s.117D(1) of the same Act of Parliament. Ms Simbi accepted on behalf of the Respondent that it would not be reasonable to expect this child to leave the UK. There has otherwise been no dispute to the Appellant’s relationship with his child and so I entirely accept that the Appellant has established that he has a genuine and subsisting parental relationship with his child. The Appellant lives as a family unit with his partner and child. The child is entirely dependent on both of his parents’ for his daily care and well-being.
27. The above, coupled with the FtT’s findings that it would in effect not be reasonable to expect the Appellant’s partner to leave the UK for Iran either, I accept that s.117B(6) applies. The public interest does not therefore require the Appellant’s removal from the UK – this is not a case where the Appellant is liable to deportation. No other factor has been raised before me to suggest that the Appellant should be expected to leave the UK and so as a result of s.117B(6) applying, I find that there would be unjustifiably harsh consequences for the Appellant and his family should he be removed from the UK.
28. Accordingly, the Appellant’s appeal is allowed on Article 8 ECHR grounds reflecting Parliament’s acknowledgement that the public interest does not require his removal from the UK.
Notice of Decision
29. The decision of the FtT dated 21st February 2025 did involve the making of material error(s) of law and has been set aside, pursuant to my decision above.
30. I re-make the decision by allowing the Appellant JM’s appeal against the Respondent Secretary of State’s decision of 26th May 2023 on Article 8 ECHR grounds.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16.12.2025