Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001824
UI-2025-001825

First-tier Tribunal No: HU/51788/2024
HU/51791/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 July 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL WALSH

Between

M1
M2
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Marziano, Westkin Law
For the Respondent: Ms Mckenzie, Senior Home Office Presenting Officer

Heard at Field House on 20 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants are granted anonymity. Until further order, in this decision and in the proceedings the Appellants shall be referred to as M1 and M2. No-one shall publish or reveal any information, including the name or address of the Appellants likely to lead members of the public to identify the Appellants either directly or indirectly. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellants appeal from the decision of the First-tier Tribunal dated 11 March 2025, dismissing their appeals against the refusal of leave to enter under paragraph 297 of the Immigration Rules and Article 8 ECHR.
2. The appeal was heard by a panel of the Upper Tribunal (UTJ Hirst and DUTJ Walsh) on 20 June 2025. Both panel members have contributed to this decision.
3. An anonymity order was not requested by either party and we have had regard to the importance of the principle of open justice. However, as the Appellants are children we consider that it is appropriate to make an anonymity order in respect of them.
Background
4. The Appellants are siblings born in February 2011 and September 2012 and are Somali nationals. They are accepted to be the biological children of the sponsor, who was recognised as a refugee in 2013 and is a British citizen.
5. On 20 November 2023 the Appellants applied for entry clearance to join the sponsor under paragraph 297 of the Immigration Rules and Article 8 ECHR. Their applications were refused by the Respondent on 25 January 2024.
6. The Appellants’ appeals came before the First-tier Tribunal on 27 February 2025. In a decision promulgated on 11 March 2025, the First-tier Tribunal dismissed the appeals.
7. Permission to appeal was granted by the First-tier Tribunal on 23 April 2025. On 4 June 2025 the Appellants made an application to adduce further evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Respondent did not file any response to the appeal under Rule 24.
8. The appeal came before a panel of the Upper Tribunal (UTJ Hirst and DUTJ Walsh) at an error of law hearing on 20 June 2025. Having heard submissions from the parties, we gave our decision that there were material errors of law in the decision of the First-tier Tribunal and set the decision aside. We proceeded to re-hear the appeal and re-made the decision.
Error of law
9. The Appellants’ grounds of appeal were that:
i. Ground 1: The First-tier Tribunal had failed to assess the credibility of the sponsor and her sister, whose witness statements set out the factual matrix to the appeal. It was incumbent on the First-tier Tribunal to make findings in respect of the evidence of the sponsor and her sister in determining the legal issues in the appeal;
ii. Ground 2: The First-tier Tribunal made the same set of findings in relation to all of the applicable legal tests, and failed to differentiate the tests, particularly between paragraphs 297(i)(e) and (f) and Article 8 proportionality;
iii. Ground 3: The First-tier Tribunal, in commenting at paragraph 33 and elsewhere that “limited”, “very limited”, or “no” information or evidence had been provided, had failed to consider or address the evidence of the sponsor and her sister and had failed to consider all of the evidence in the round;
iv. Ground 4: In considering paragraph 297(i)(f), the First-tier Tribunal had not considered the best interests of the Appellants nor considered all of the material facts presented;
v. Ground 5: In considering Article 8, the First-tier Tribunal had not considered the sponsor’s Article 8 rights, and had erred in assessing proportionality.
10. In his submissions for the Appellants, Mr Marziano addressed the grounds together. In summary, he submitted that the First-tier Tribunal had failed to engage with the sponsor’s witness statement or the evidence of the sponsor’s sister, and had not made any assessment of the sponsor’s credibility. There had been a failure to consider all of the evidence in the round, which pervaded and affected all of the Tribunal’s findings and its conclusions on the issues in the appeal.
11. Ms Mckenzie for the Respondent submitted that the appeal was in reality a disagreement with the judge’s findings. The judge had followed the correct legal framework and was entitled to take a robust approach to considering and assessing the information before her, including the sponsor’s statement. The judge had been right to say that the documents were not supported by substantial corroboration; she had acknowledged the extensive documentary evidence but found it to be self-serving. In relation to Article 8, the judge had set out her thinking clearly and had had regard to the best interests of the Appellants.
12. We bear in mind the well-established principle that judicial caution is appropriate when considering whether to set aside the decision of a specialist tribunal of fact, and the Upper Tribunal should be slow to infer that a First-tier Tribunal judge has misdirected herself or failed to take a point into account: HA (Iraq) v SSHD [2022] UKSC 22, 1 WLR 3784 at §72. Where the ground for appeal is that the judge failed to give the evidence a balanced consideration, an appellate court must be particularly cautious in its approach to the appeal: Volpi & Anor v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at §2. It is however equally well-established that the First-tier Tribunal is required to give conscientious and fair consideration to an appeal and to consider the evidence before it in the round. The Tribunal is not required to accept the evidence of a witness, but it is required to identify in its decision which parts of the witness evidence are accepted and to explain why it does not accept other aspects: SB (Sri Lanka) v SSHD [2019] EWCA Civ 160 at §44 and 62. The Tribunal’s reasons must be adequate to explain its findings and conclusions on the issues in dispute in the appeal.
13. For the reasons set out below, we conclude that the First-tier Tribunal did err in its approach to the evidence in the ways identified in the grounds of appeal. The factual matrix in this appeal was somewhat unusual. It was not in dispute that the Appellants had been in their father’s household from 2013 to 2023 and that the sponsor had not had any contact with them from 2013 to 2022. Nor was it in dispute that the Appellants were, at the time of the First-tier Tribunal hearing, living in Kenya with the sponsor’s sister, having been taken there from Somalia by the sponsor in 2023. In that context, the evidence of the sponsor and her sister was obviously of central importance to the issues which the First-tier Tribunal was required to determine under paragraphs 297(i)(e) and (f) and Article 8 ECHR.
14. There were a number of material errors in the First-tier Tribunal’s approach to the evidence before it. First, the evidence of the sponsor was not fairly reflected or considered in the decision. The sponsor had provided a detailed witness statement and gave oral evidence at the hearing. Key parts of her evidence were not reflected either in the summary at paragraph 8 or in the decision as a whole, including the sponsor’s own experience of abuse by her ex-husband and his family and her forced separation from the Appellants. Beyond a passing reference at paragraph 19 to the sponsor being “estranged from her husband in all the circumstances” there was no reference at all in the Tribunal’s reasoning to the sponsor’s account of her past ill-treatment, nor any consideration of the relevance of her evidence to the issues which the First-tier Tribunal was required to determine. The judge was of course not obliged to accept any of the sponsor’s evidence, but she was obliged to consider it fairly and in the round. The omission of central elements of the sponsor’s evidence from the First-tier Tribunal’s decision, together with the way in which her evidence was characterised at paragraphs 18-19 as “a convenient and constructed narrative to explain the sponsor suddenly taking up a role in the appellants’ lives” compels the panel to the conclusion that the First-tier Tribunal did not give the sponsor’s evidence fair or balanced consideration.
15. Second, it is not clear from the judge’s reasoning which parts of the sponsor’s evidence she accepted, nor why other parts were rejected. The judge made passing reference to the sponsor being cross-examined, but did not set out which parts of her evidence were challenged in cross-examination nor record or summarise her answers. The judge did not make any findings as to the sponsor’s credibility, instead (at paragraphs 19 and 21) making observations about the “plausibility” or “implausibility” of the sponsor’s account. The courts have repeatedly emphasised the risk that findings as to “plausibility” will be influenced by the tribunal’s own subjective experiences and cultural understanding: see MAH (Egypt) v SSHD [2023] EWCA Civ 216. Even putting that to one side, the judge’s reasoning did not make it sufficiently clear why some parts of the sponsor’s evidence (her estrangement from her ex-husband, the Appellants being cared for by their father’s other wives) were considered to be plausible and other parts were not.
16. Similar criticisms pertain in respect of the First-tier Tribunal’s treatment of the evidence of the sponsor’s sister. She was not available to be cross-examined but had provided a detailed witness statement which confirmed the Appellants’ demeanour and condition when they were brought to live with her in Kenya in 2023 as well as confirming that the sponsor made all the important decisions in their lives. As the Appellants’ day to day carer, her evidence was obviously relevant to the issue of sole responsibility as well as the other issues in the appeal. The First-tier Tribunal did not make any credibility finding in relation to her evidence. Beyond stating at paragraph 26 that little weight could be attached to the sister’s statement because she could not be cross-examined, it is unclear from the judge’s reasoning whether any of the sister’s evidence was accepted and if not why not.
17. Third, we consider that the First-tier Tribunal failed to give fair and balanced consideration to the documentary evidence before it, or to consider all the evidence in the round as it was required to do (TD (paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 00049 at §52). Instead, the Tribunal’s reasoning indicates an unreasonably restrictive and piecemeal approach. For example, at paragraph 20 the First-tier Tribunal considered the power of attorney document which the Appellants’ father had signed on 25 October 2023. Although the judge appeared to accept that the document was genuine, she concluded that it was “not reliable evidence of the sponsor having sole responsibility for the children or as to the father having abdicated all responsibility”. That conclusion is not supported by the terms of the document itself, which stated that the Appellants’ father had “entrusted my children to their mother….I declare here that she is fully responsible of their education, health and life and can do everything they need”. Further, it was not reasonable for the judge to reject the document on the basis it was not a formal custody document whilst recognising that Somali custody orders were not recognised as valid in the UK. Most importantly, the document was only one part of the evidence on which the Appellants relied in respect of sole responsibility, but the judge considered and rejected it in isolation.
18. At paragraph 24 the First-tier Tribunal rejected in its entirety the medical evidence from Dr Oraya, which summarised hypertrophic burn scars on the First Appellant’s body and behavioural problems, due to “lack of independent corroboration of the doctor’s credentials”, lack of an opinion as to the causality of the scarring and the fact that “as a written letter the evidence cannot be tested”. The doctor’s letter was not however provided as a formal medicolegal report on the causation of the First Appellant’s scarring, and it was not in any event suggested by the Appellants that their father had physically abused them. It was provided as corroborative evidence from a treating clinician as to (i) the Appellants’ condition when they were taken to Kenya and their ill-treatment whilst in their father’s care, and (ii) the sponsor’s having taken responsibility for arranging medical treatment. The weight to be given to the doctor’s letter was a matter for the judge, but it was not reasonable to dismiss it out of hand on the basis that it was not a formal medicolegal report, without considering its relevance to the issues the First-tier Tribunal was required to determine or how it fitted with the other evidence.
19. Similarly, at paragraph 30 the First-tier Tribunal considered a statement by the Appellants’ tutor, who had been engaged by the sponsor because the Appellants were significantly below the expected educational level for their age. Again, the weight to be given to the report was a matter for the judge. It was however not reasonable to dismiss the report in its entirety on the basis that it was “self-serving” because the tutor expressed an opinion on how the sponsor’s absence affected the Appellants’ education and development.
20. Despite the self-direction at paragraph 15, it is not apparent from the judge’s reasoning that she considered the evidence before her in the round. Instead, the judge’s approach was to consider and reject each individual piece of evidence separately, without considering how the evidence related to other evidence and its relevance to the issues in the appeal. Her conclusion at paragraph 33 that the evidence to demonstrate that the sponsor had sole responsibility for the Appellants was “very limited” and that there was a “dearth” of documentary evidence was not rationally supportable on the evidence which was before her. The ineluctable conclusion, considering the decision as a whole, is that the judge did not consider the evidence fairly or with an open mind.
21. We therefore accept the Appellants’ submission that there were material errors in the First-tier Tribunal’s treatment of the evidence before it, and that Grounds 1 and 3 of the grounds of appeal are made out. We consider that the errors of approach to the evidence infected the First-tier Tribunal’s conclusions under both the Immigration Rules and Article 8 ECHR. Given that conclusion, it is not necessary for me to address the remaining grounds of appeal in detail.
22. The decision of the First-tier Tribunal is set aside with no findings preserved.
Re-making hearing
23. The parties agreed that the decision could be re-made by the Upper Tribunal and having regard to paragraph 7 of the Practice Statement we considered that it was appropriate to do so. We therefore adjourned to allow Ms Mckenzie additional time to prepare before reconvening to hear evidence from the sponsor.
Preliminary issue
24. At the outset of the re-making hearing, Ms Mckenzie raised as a preliminary issue that paragraph 297(i)(f) of the Immigration Rules had not previously been considered by the Respondent and was therefore a ‘new matter’ within the meaning of s85(6) Nationality, Immigration and Asylum Act 2002 which the Upper Tribunal could not consider without the Respondent’s consent.
25. The First-tier Tribunal hearing in this appeal took place on 27 February 2025 and the appeal was therefore one to which the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal applied. The Practice Direction, which was published on 1 November 2024, emphasises the need for procedural rigour and requires the parties to “identify, articulate, agree and then focus upon” the disputed issues in the appeal, following the guidance in Lata (FtT: principal controversial issues) [2023] UKUT 00163 and TC (PS compliance – “issues based” reasoning) Zimbabwe [2023] UKUT 00012 (IAC). The purpose of the Practice Direction is to ensure that the issues in the appeal are identified clearly prior to the First-tier Tribunal hearing.
26. In the refusal decisions dated 25 January 2024, the Respondent had stated “You have not stated that there are any serious and compelling family or other considerations which would make your exclusion undesirable, therefore paragraph 297(i)(f) does not apply to you.” Paragraph 297(i)(f) was expressly identified as an issue in the appeal in the Appellants’ skeleton argument for the First-tier Tribunal. In the Respondent’s review dated 16 August 2024, the schedule of issues in the appeal set out at paragraph 4 included paragraph 297(i)(f), and paragraphs 18-21 of the review set out the Respondent’s position on that issue having considered the evidence submitted by the Appellants for the appeal. The First-tier Tribunal identified 297(i)(f) as an issue for determination at paragraph 6 of its decision, and addressed the issue in detail at paragraphs 37-41 of its decision.
27. We were satisfied both that paragraph 297(i)(f) had previously been clearly identified by the parties and by the First-tier Tribunal as an issue in the appeal, and that the Respondent had previously given substantive consideration to the issue in the review prior to the First-tier Tribunal hearing. We therefore did not accept the submission that it was a new matter under s85(6) NIAA 2002 which the Upper Tribunal was unable to consider.
Issues in the appeal
28. The issues for determination are:
i. Paragraph 297(i)(e) of the Immigration Rules: whether the sponsor has had sole responsibility for the Appellants’ upbringing;
ii. Paragraph 297(i)(f) of the Immigration Rules: whether there are serious and compelling family or other considerations which make exclusion of the Appellants undesirable;
iii. Whether the refusal of leave to enter amounts to a disproportionate interference with the Article 8 ECHR rights of the Appellants and the sponsor.
Evidence
29. The panel had an appeal bundle of documents which ran to 536 pages and which included the evidence supplied with the Appellants’ Rule 15(2A) application. The panel considered all of the documentary evidence carefully and in the round.
30. The sponsor adopted her witness statements dated 4 June 2025 and 25 June 2024 and was cross-examined. There was no re-examination.
31. The sponsor’s evidence was that she was married to the Appellants’ father as a 14 year old child, was raped by him, and was subjected to domestic servitude and ill-treated by his family until she was divorced in late 2012 or 2013. Her ill-treatment by her ex-husband’s family, including during both her pregnancies and after her children were born, caused serious physical and mental health problems. She was deprived of food and did not have a bed. Her ex-husband was frequently away travelling and visiting his other family, but did not take any steps to protect the sponsor or to improve her situation. She became desperate and repeatedly requested a divorce from her ex-husband, which he eventually granted in late 2012, but he refused to allow her to take the Appellants with her when she returned to her father’s home. When the sponsor realised he would not let the children return with her, she told her ex-husband that she would stay in his household, but he refused. Her son, who the sponsor was still breastfeeding at the time, was physically taken from her by her mother-in-law. The separation from her children caused the sponsor severe depression. The sponsor fled to the UK around 5 months later, after her father was pressured to marry her to a jihadi fighter. She was recognised as a refugee and granted leave in July 2013.
32. After her arrival in the UK the sponsor managed to re-establish telephone contact with her parents, who confirmed that her siblings had been sent to Ethiopia and other countries to get them away from the fighting in the sponsor’s home area. She subsequently managed to establish irregular contact with her siblings via Facebook. In 2019 the sponsor’s sister, who was living in Kenya, contacted her to say she had found someone who lived in Kismayo (the place where the sponsor’s ex-husband had been living) and the sponsor obtained her ex-husband’s telephone number from that contact. Her ex-husband did not initially answer the telephone but when he did he did not give the sponsor any information about the Appellants other than that they were alive. Thereafter the sponsor repeatedly called her ex-husband and repeatedly requested that he give her the children. Between summer 2020 and the end of 2021 the sponsor’s ex-husband refused to answer any of her calls. He then did not answer her calls for another 8 months until late 2022. In December 2022 he told the sponsor that he and the Appellants were in Mogadishu and he permitted the sponsor to speak to the Appellants for the first time. Thereafter the sponsor called her ex-husband every day, making repeated efforts to convince him to let her have the Appellants.
33. On 12 December 2022 the sponsor’s ex-husband informed her that he was ready to give her the Appellants. He told her that she would need to collect the children from Somalia. The sponsor did not know why he had changed his mind after three years and was frightened that it was a trap, but she made arrangements via a friend in the UK to borrow their family’s house in Mogadishu and flew there with her sister in April 2023. She remained in the house, where she was reunited with the Appellants. The Appellants were initially very quiet and did not speak to her at all; she felt they were strangers to each other. Her ex-husband did not say anything to her except “now you are responsible, I hope you do not expect me to support them anymore.” She found that although her ex-husband had arranged for a visa for her son to Kenya, her daughter did not have a visa, and she therefore made arrangements for her son to fly with her to Kenya and for her daughter to be granted an entry visa at the border. She took the Appellants to their house in Kenya where her mother was waiting.
34. The sponsor took her son to see a doctor in Kenya because she could see burn marks on his buttocks, back and shoulders. The Appellants told her that their father was never in the house and the scars and burns were not from him, but she believed that his neglect was equal to abuse. Both the Appellants seemed psychologically distressed and had nightmares. They told the sponsor they had not been to mainstream school and although her son had received education in the Qur’an her daughter had not had any education whatsoever. The sponsor hired a private tutor for the Appellants to teach them English, Swahili and Mathematics.
35. The sponsor had to return to the UK after two weeks. In order to earn more money to support her children she switched to full-time self-employed work as a dental nurse. She was now working seven days a week. She spoke to the Appellants every day via video calls and Whatsapp, and made sure that she had a long videocall with them before they went to bed. She had communicated with her sister via telephone and Whatsapp.
36. In cross-examination the sponsor stated that when she was preparing for the First-tier Tribunal appeal, her lawyer had advised her to get a document confirming that the Appellants’ father did not have responsibility for them. She had contacted one of his relatives and explained that without the document the Appellants would not be permitted to join her in the UK and would have to stay in Kenya. She did not know how the power of attorney had been obtained. She did not know why the Appellants’ father had agreed to provide the document.
37. Since November 2024 the Appellants had been enrolled in school full-time. The sponsor paid their school fees every three months and continued to pay the tutor monthly. The sponsor was concerned about their educational level, which was below the expected level for their ages, and had checked their academic levels via videocall and had instructed her sister to purchase academic textbooks. The Appellants had had difficulty making friends in Kenya and were isolated because they were behind at school.
38. The sponsor paid for the Appellants’ house in Kenya. The sponsor’s mother had returned to Somalia in early 2024 as her father had refused to leave Somalia. The sponsor’s parents lived in Jilib, an area which was subject to conflict. Her father was elderly and ill and her mother also had health problems.
39. The sponsor’s sister had lived with the Appellants until March 2025, when she had relocated to Germany to live with her husband. A relative of the sponsor’s sister had stayed with the children in April and May 2025 but had moved out at the end of May 2025. Following her departure, the sponsor had hired a woman named Fatima to live there with the Appellants and to clean, wash the children’s clothes and prepare food for them. The sponsor had multiple calls from Fatima and from her daughter each day.
40. The evidence of the sponsor’s sister was set out in her statement dated 25 June 2024. She stated that she had been living in Kenya for 3 years. In December 2022 the sponsor had confirmed that she was going to travel to Somalia to collect the Appellants, and the sponsor had rented a 3 bedroom property. She had accompanied the sponsor to collect the Appellants. They were nervous, scared and shy when their father brought them to meet the sponsor, and were very underweight. The Appellants had not experienced playing as children and were happy they could play outside in Kenya. It was difficult for the Appellants to trust her but she reassured and comforted them. The Appellants had difficulty eating the food she and the sponsor provided and they realised that the children had not been used to eating food during the day. Her niece had since told her that they were beaten and forced to do work around the house when living in Somalia, because they were the youngest of their stepsiblings. The sponsor had given her a plan about the Appellants’ living arrangements before she returned to the UK and it was agreed that the sponsor would make all the big decisions in the Appellants’ lives, including their finances, education and day-to-day living, because she was their mother. When the sponsor returned to the UK, it had had an impact on the children and caused them distress. In January 2024 the sponsor had decided to enrol the children into public education in addition to their tutoring. The sponsor provided all the financial support for the children and spoke to them every day. She did her best to carry out the sponsor’s wishes regarding the children.
Discussion and findings
Paragraph 297(i)(e): sole responsibility
41. The approach to be taken to sole responsibility is that set out by the Upper Tribunal in TD (Yemen) at §52:
i. Who has "responsibility" for a child's upbringing and whether that responsibility is "sole" is a factual matter to be decided upon all the evidence.
ii. The term "responsibility" in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. "Responsibility" for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.
vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules
ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions in the child's life. If not, responsibility is shared and so not "sole".
42. The panel found the sponsor to be a truthful and credible witness. She has been found to be a refugee. Her witness statements provided a clear and detailed account. She was cross-examined at length, although significant parts of her evidence (in particular, events prior to 2013, the departure of the sponsor’s sister to Germany in March 2025 and the Appellants’ current living arrangements) were not challenged. Her answers in cross-examination were clear and were consistent with her statements and the documentary evidence. She did not overstate her evidence or attempt to evade questions: for example, when asked about her ex-husband’s motive for giving up the children, or why he and his relative had cooperated by providing the power of attorney document, she frankly said that she did not know. We considered that her written and oral evidence was credible and reliable and accept it in its entirety.
43. The sponsor’s sister was not available for cross-examination, but we also accept the evidence in her statement, which is consistent both with the sponsor’s oral and written evidence and the other documentary evidence.
44. It is not in dispute that the sponsor is the mother of the Appellants. We find, on the basis of her unchallenged evidence, that the sponsor was married to her ex-husband as a 14 year old child, was raped by him and was ill-treated by his family. We find that she was forced to separate from the Appellants when her ex-husband divorced her and refused to allow her to take them with her to her father’s home. We find that the forced separation from her children caused the Appellant enormous distress.
45. We accept that the sponsor was only able to re-establish contact with her ex-husband in 2019 and that it took a further three years before he agreed to relinquish the Appellants. We accept that the Appellants’ father informed the sponsor in December 2022 that she could collect the Appellants. Whilst his motive for doing so remains unclear, we find the sponsor’s account of her ex-husband’s behaviour between 2019 and 2022, in controlling and withholding contact, ignoring her distress at her separation from the Appellants, and refusing to permit her to speak to them or give her information as to their wellbeing to be entirely consistent with her unchallenged account of his previous controlling and abusive behaviour.
46. It is not in dispute that between 2013 and April 2023, the Appellants were in the sole care of their father or that the sponsor did not have contact with them between 2013 and December 2022. During the period 2013 to April 2023 we find that the Appellants’ father had sole responsibility for their upbringing.
47. However, we do not accept that during that period the Appellants’ father provided proper care for them or that he was concerned for their welfare. The evidence of the sponsor and her sister as to the Appellants’ demeanour and behaviour when they arrived in Kenya, and what the Appellants had told them of their ill-treatment whilst in their father’s household, was consistent. It was also consistent with the sponsor’s unchallenged evidence of her ex-husband’s frequent absences and her own ill-treatment by his family during their marriage. We accept the letter dated 26 February 2024 from Dr Oraya as genuine. Details of Dr Oraya’s medical registration have been supplied and we accept that he is a consultant general surgeon at Kenyatta National Hospital who treated the First Appellant from June 2023 onwards. We also accept the evidence from the sponsor and from Martin Vusieka, the tutor hired by the sponsor, that the Appellants had both lacked basic education and were significantly behind their age group when they arrived in Kenya. That evidence is consistent with the letter from the Appellants’ school dated 3 June 2025.
48. We find on the evidence that whilst the Appellants were nominally in their father’s care prior to April 2023, he was frequently absent and both Appellants were ill-treated by their stepmothers and stepsiblings: they were treated as servants, were given only limited food and had limited if any access to education. We find that whilst in his father’s care the First Appellant was subject to physical abuse by relatives which left burn marks and scars.
49. There is no evidence at all that the Appellants’ father has played any role at all in their upbringing since April 2023. The evidence before the panel did not indicate that he has attempted to contact the Appellants, let alone taken any interest in their welfare or progress. We accept that the power of attorney signed on 25 October 2023 is a genuine document. That document states that the Appellants’ father has “entrusted my children to their mother….I declare here that she is fully responsible of their education, health and life and can do everything they need”. Considering the document together with the other evidence, we find that the Appellants’ father has abdicated his responsibility for the Appellants and no longer plays any role in their upbringing.
50. From April 2023 onwards, the Appellants have lived in Kenya. We find that the sponsor arranged for, and has paid for, a three-bedroom house in which the Appellants can live. We accept that until March 2025 the Appellants were living with their aunt, the sponsor’s sister, and that she provided day-to-day care for them including food and household chores. However, we find that the sponsor’s sister provided that care under the guidance and wishes of the sponsor. The sponsor has been closely concerned with the Appellants’ education, having hired a private tutor to address their previous lack of education, chosen their schools and directed her sister in providing day-to-day support through the purchase of additional textbooks and resources. She has been in contact with the Appellants’ tutor and has also had contact with their schools, although day to day liaison has been with the Appellants’ aunt. The sponsor was responsible for obtaining medical treatment for the Appellants in 2023 and directed her sister as to how to support the children to help them adjust to life in Kenya after her return to the UK. Following her sister’s departure for Germany in March 2025, the sponsor employed a live-in housekeeper who provides day-to-day care for the Appellants under her direction. The sponsor has frequent, at least daily, contact with the Appellants via telephone, messages and videocalls, which is evidenced by Whatsapp records showing affectionate exchanges between them as well as the sponsor providing parental advice.
51. The sponsor plainly loves her children deeply and is concerned for their welfare and wellbeing. Considering all the evidence before us in the round, we find that since April 2023 the sponsor has had control and direction over all of the important decisions in the Appellants’ lives. Whilst other adults (the Appellants’ aunt and now the paid housekeeper) have provided day to day care, they have done so under the direction of the sponsor. We find that since April 2023 the sponsor has had sole responsibility for the Appellants’ upbringing.
Paragraph 297(i)(f): serious and compelling family or other considerations making exclusion of the child undesirable
52. Consideration of paragraph 297(i)(f) involves an evaluation of the child’s welfare and what his best interests require: Mundeba v Entry Clearance Officer – Nairobi [2013] UKUT 88 (IAC). That includes evaluating the child’s emotional and developmental needs and considering factors including whether there is evidence of neglect or abuse; whether there are unmet needs; and whether the child’s current living arrangements are stable.
53. The sponsor’s evidence as to the Appellants’ current living circumstances was not challenged by the Respondent in cross-examination. The situation as at the hearing before us is that the Appellants, who are now aged 12 and 14, are living alone in Kenya where they are cared for by a live-in housekeeper. They do not have any permanent status in Kenya and their permission to stay has to be renewed annually. There is no relative in Kenya. The sponsor has day to day telephone and online contact with the Appellants but is not able to visit them frequently and last saw them when she visited in December 2024.
54. There is no evidence that the Appellants are currently subject to neglect or abuse. On the contrary, we accept that the sponsor is doing as much as she can to meet the children’s physical and emotional needs. But as set out above, we have found that the Appellants were subject to neglect and abuse when in their father’s care prior to April 2023, and there is no evidence that the Appellants’ father currently has any interest in them. They have also experienced a very long separation from their mother and currently have no other relative close by; a paid housekeeper, no matter how competent, cannot adequately substitute for lack of familial love and support. The evidence before us indicates that the Appellants have found it hard to make friends in Kenya, due in part to their lack of language skills and their lack of educational attainment, so they do not have social support to rely on from their peers. They are on any view very isolated, following a period in which they have experienced considerable disruption and upheaval, and we find on the evidence that they have an unmet need for love and emotional support. The current situation is not a stable or secure arrangement and we do not consider that it is conducive to the Appellants’ welfare.
55. We consider that the sponsor is able to provide the Appellants with love and support. Although they have long been separated, the evidence before us demonstrates that the sponsor has been rebuilding her relationship with the Appellants and there is clear evidence of mutual affection. The Appellants’ best interests clearly lie in being with the sponsor in a safe, stable environment where their physical and emotional needs can be met and which is conducive to their educational, social and psychological development.
56. The sponsor is a British citizen who has lived in the UK since 2013. She is self-employed as a dental nurse. She has accommodation available for the Appellants and is currently solely financially responsible for running two households. She does not have any residency rights in Kenya, nor or any social or family connections or employment there, and she does not speak Swahili. We do not consider that it would be reasonable, or in the Appellants’ best interests, to require the sponsor to join them in Kenya. Although the move to the UK would necessarily involve further disruption for the Appellants, they have only been in Kenya for just over two years and the evidence does not demonstrate that they have developed strong personal, social or cultural connections there. We find that it is in the Appellants’ best interests to live with the sponsor in the UK.
57. We conclude that the Appellants’ current circumstances are not in their best interests and are neither safe nor conducive to their welfare. Their current circumstances, compounded by their history of forced separation from the sponsor and their previous experiences of abuse and neglect in their father’s care, constitute serious and compelling considerations making their exclusion from the UK undesirable.
Article 8 ECHR
58. Our conclusions above that paragraphs 297(i)(e) and (f) of the Immigration Rules are met are dispositive of the appeal, but we have nonetheless considered Article 8 in the alternative.
59. We find that there is family life between the sponsor and the Appellants notwithstanding their long separation. Having regard to the Strasbourg caselaw, and in particular the summary of the relevant principles in cases such as Lebbink v Nerherlands (2005) 40 EHRR 18 and Gul v Switzerland (1996) 22 EHRR 93, we consider that the natural connection between the sponsor and the Appellants has not been broken; the evidence before us demonstrates practical, constant and close personal connection between them. The Appellants’ ongoing separation from the sponsor is an obvious interference in their family life.
60. We turn to whether the interference is proportionate, having regard to the statutory factors in s117B Nationality, Immigration and Asylum Act 2002. We have found above that the Appellants’ best interests lie in being with the sponsor in the UK. That is a primary consideration.
61. The Appellants would be financially supported by the sponsor in the UK and have some ability to speak English, although their level of fluency is not clear. Those are in any event neutral factors in the assessment of whether it is proportionate to refuse them entry: Rhuppiah v SSHD [2018] UKSC 58 at §57.
62. We have found that the Appellants meet the requirements of the Immigration Rules. In the alternative, on the evidence before us and considering both the unusual history of this case and the Appellants’ current living circumstances, we find that the strong public interest in immigration control would be outweighed. Both the Appellants and the sponsor have suffered from their long separation: the sponsor’s distress was evident from her written and oral evidence and the Appellants have been deprived of years of the care which the sponsor could have provided for them. The Appellants’ best interests clearly lie in being reunited with the sponsor in the UK and their continued exclusion is likely to further damage their physical and emotional well-being. We find that in the particular and unusual circumstances of this case the Appellants’ continued exclusion would not be a justified or proportionate means of achieving a legitimate aim.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
The Appellants’ appeal is allowed under the Immigration Rules and Article 8 ECHR.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 June 2025