Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002008

First-tier Tribunal No: HU/01264/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 November 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

RA
(ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr S. Jaisri, Counsel instructed by Direct Access
For the Respondent: Ms A. Nolan, Senior Home Office Presenting Officer

Heard at Field House on 17 November 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. This Order has been renewed due to the Appellant’s minority at the time of the hearing which outweighs the general principle of open justice.

DECISION AND REASONS

Introduction
1. This substantive decision should be read in conjunction with this Tribunal’s earlier error of law decision.
Procedural history
2. In the error of law judgment, this Tribunal concluded that the First-tier Tribunal materially erred in law on the basis of procedural unfairness when dismissing the Appellant’s appeal on 25 March 2025.
3. At §20, we recorded that Mr Jaisri had requested that the remaking appeal be kept in the Upper Tribunal despite the Appellant not having the benefit of a fair hearing at the First-tier Tribunal. Mr Jaisri confirmed that the Sponsor understood that a remaking in the Upper Tribunal would change the nature of the onward right of appeal should the appeal be dismissed.
4. On that basis we decided that the remaking appeal should be kept in the Upper Tribunal. The Sponsor attended and gave oral evidence via the Tribunal’s Middle Eastern Arabic interpreter; we are satisfied that there were no difficulties in understanding.
5. During the hearing we sought assistance from the representatives as to matters relating to the detail of the Appellant’s mother’s application for entry clearance and we received further evidence from the Respondent without objection from Mr Jaisri.
6. At the end of the oral evidence, we heard submissions from both representatives of which we have kept our own notes and at the end of the hearing we formally reserved our judgment.
Findings and reasons
7. In reaching our conclusions we have had careful regard to the Appellant’s error of law bundle, the Appellant’s bundle for the substantive remaking of 29 PDF pages, the Respondent’s bundle of 52 PDF pages (which was provided during the hearing) and the Appellant’s mother’s entry clearance application form submitted on 8 March 2024.
8. We have reminded ourselves that the burden of establishing the underlying factual matrix is upon the Appellant and the relevant standard of proof is the balance of probabilities. We have considered all the evidence, in the round, at the date of hearing.
Article 8 ECHR
Appendix FM – the child route
9. We have applied the Court of Appeal’s guidance in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109, and started our assessment by reference to compliance with the Rules.
10. We note from the outset that Mr Jaisri did not argue that the Appellant could meet the requirements of Appendix FM read with Appendix FM-SE at the date of the application.
11. We should however explain the non-compliance in more detail as it is relevant to the assessment of the weight and nature of the public interest in the Article 8(2) ECHR balancing exercise:
a. The Appellant made his application on 25 March 2024.
b. At the date of the application the Sponsor was employed by Fire Away Victoria Ltd.
c. The Sponsor’s average earnings in the 6-month period prior to the application were £21,600.
d. At the time of the application, E-ECC.2.1.(a) required a specified gross annual income of £18,600, (i) and an additional £3,800 for the first child, (ii) meaning a required gross income of £22,400.
e. Appendix FM-SE (at that time) also required that salaried employment be assessed by reference to payslips for a period of 6-months before the date of the application (paragraph 2(a)(i)). The relevant calculation method at paragraph 13(a) also operated by reference to the 6-month period before the date of the application.
f. By the date of the Respondent’s decision the rules had changed and E-ECC.2.1.(a)(i) required a specified gross annual income of £29,000. It was agreed between the parties, however, that the Appellant continued to benefit from the £22,400 figure as a consequence of the transitional financial requirement in E-ECC.2.5.
g. The Sponsor was therefore £800 short of the minimum income threshold of £22,400 at the relevant date - that being the date of the application.
h. In April the Sponsor’s monthly earning increased to over £1,900.
12. We add for completeness that, to the extent that the Sponsor appeared to suggest during the hearing that the Respondent had in fact miscalculated his earnings at the date of the application and that he had been told by his former employer’s accountant that he was earning £23,000, we reject that evidence.
13. It is clear from the way the Appellant put his case in the error of law hearing and by reference to paragraph 4 of the Sponsor’s witness statement (dated 30 October 2025) that it has always been previously accepted that the Sponsor’s earnings did not meet the minimum income threshold at the relevant time.
14. The Sponsor has provided no corroboratory evidence of the late claim to earnings of £23,000 and we therefore proceed on the previously agreed position that the financial rules were not met at the relevant date.
Exceptional circumstances
15. We commence by concluding that the Appellant and Sponsor have an Article 8(1) ECHR family life. The relationship was not a point of refusal, nor was it challenged by Ms Nolan.
16. In respect of Article 8(2) ECHR, the relevant test of exceptional circumstances in Article 8(2) ECHR is explained in Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 – the Tribunal’s emphasis:
“60. It remains the position that the ultimate question is how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions in issue in the present case do not depart from that position. The Secretary of State has not imposed a test of exceptionality, in the sense which Lord Bingham had in mind: that is to say, a requirement that the case should exhibit some highly unusual feature, over and above the application of the test of proportionality. On the contrary, she has defined the word "exceptional", as already explained, as meaning "circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate". So understood, the provision in the Instructions that leave can be granted outside the Rules where exceptional circumstances apply involves the application of the test of proportionality to the circumstances of the individual case, and cannot be regarded as incompatible with Article 8. That conclusion is fortified by the express statement in the Instructions that "exceptional" does not mean "unusual" or "unique": see para 19 above.”
The Appellant’s current circumstances
17. As part of our holistic assessment, we have factored in the Appellant’s mother’s grant of Leave to Enter when assessing the competing issues. On the basis of the further evidence provided by Ms Nolan, we are satisfied that the Appellant’s mother applied for entry clearance on the day the Appellant was to be born (8 March 2024). As the Sponsor explained at the hearing, that application was already well in train by that date, and it was merely submitted on that date.
18. The Appellant’s mother was successful in her application because the Sponsor’s finances were enough to support her alone (the £18,600 threshold) as the Appellant had yet to be born. The Appellant’s mother was granted Leave to Enter the UK on 27 May 2024, valid until 27 February 2027.
19. Although the Tribunal has not received any evidence directly from the Appellant’s mother, we are satisfied from the Sponsor’s unchallenged account that she currently resides in Egypt with the Appellant in her family’s home. Mr Jaisri submitted that there was no indication that the Appellant’s circumstances in Egypt were precarious in any way.
20. In assessing the Appellant’s best interests, we have applied the Supreme Court’s judgment in CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32 at §64, and the European Court of Human Rights’ decision in UNUANE v. THE UNITED KINGDOM - 80343/17 (Judgment : Remainder inadmissible : Fourth Section) [2020] ECHR 832 at §88.
21. We find that in principle it is in the Appellant’s best interests that he reside with both of his parents. We note the Sponsor’s evidence that he travelled to Egypt earlier this year to be with his wife and child; there are therefore no legal barriers to the Sponsor’s ability to enter Egypt.
The Sponsor’s circumstances
22. On the evidence before the Tribunal we find that the Sponsor is currently in different employment to that at the date of the application. The Sponsor has been working as a barber for ‘Dino’s For Hair Ltd’ since September 2025 and we have seen documentary evidence that he is earning £2,500 per month.
23. The Appellant’s submission is that the financial shortfall is now rectified by the current financial evidence meaning that the decision to refuse leads to an unjustifiably harsh impact upon his family life with his mother and the Sponsor.
24. In our view the assertion that the financial deficiency is rectified on the current evidence is not wholly made out.
25. We start by reiterating our previous observation that the Rules require the relevant financial circumstances to exist at the date of the application and in the 6-month preceding period. It is therefore clear that the current evidence of improved finances for the Sponsor does not lead to success under the applicable rules.
26. For completeness, the Sponsor has not been in his current employment for at least 6months, and he has not provided an employer’s letter that is compliant with paragraph 2(b) of Appendix FM-SE. This Tribunal does not therefore have written confirmation from the new employer of the Sponsor’s employment and gross annual salary (b(i)); the length of the Sponsor’s employment (b(ii)); the period over which he has been paid the level of salary relied upon (b(iii)) and the type of employment (b(iv)).
Weighing the competing sides of the balance
27. The failure to meet the financial rules is not determinative of the answer to the proportionality question as the Supreme Court explained in MM (Lebanon) & Ors, R( on the applications of) v Secretary of State and another [2017] UKSC 10 at §99, however, for the reasons we outline below, we find that the failure to meet those requirements is significant in this case.
28. Mr Jaisri submitted that the Sponsor had not previously provided an employer’s letter and that this requirement had been waived by the Respondent, but we cannot accept that submission. At page 6 of the Respondent’s bundle the Entry Clearance Officer expressly states that the Appellant submitted wage slips, an employment letter and bank statements. In any event, it is the Tribunal’s task to gauge to what degree the Appellant’s new financial evidence complies with the applicable rules and this includes a requirement for an employer’s letter.
29. In assessing for ourselves to what extent the new evidence complies with the underlying financial requirement policy in Appendix FM & FM-SE, we have concluded that although the Sponsor’s earnings do potentially meet the preserved threshold of £22,400 (and indeed the current requirement of £29,000) on their face, there is, as yet, insufficient evidence to establish that the Sponsor’s employment and earnings are secure in the way that could reasonably be expected from a case with at least 6-months of salaried employment and an accompanying, compliant employer’s letter.
30. In our view the financial policy in Appendix FM read with FM-SE is one which seeks sufficient evidence both in detail and temporally to show that the relevant family would not be caused to any recourse (or further recourse) to public funds.
31. On our analysis the financial evidence is not yet sufficient to satisfy us on the balance of probabilities that the underlying rationale of the policy is otherwise met in this case. We find that this is relevant both to the assessment of the public interest as weighed against the interference with the Appellant’s family life in the UK and the Appellant’s best interests.
32. We recognise that maintaining the refusal would mean that the family unit would remain separated and that this would no doubt cause distress to the Sponsor and his wife We accept that there would as a result of that distress be an impact on the Appellant, although we note that he is not yet two years old and that he has never lived consistently with the Sponsor.
33. The importance of migrants being financially independent is however emphasised by Parliament at section 117B(3) of the Nationality, Immigration and Asylum Act 2002. In applying this statutory provision, we have looked to the likely financial circumstances of the family in the UK, as per Secretary of State for the Home Department v Kapp [2025] EWCA Civ 1203 at §101.
34. As we have explained we are not satisfied that the Appellant has established that his Sponsor is able to sufficiently support him as required to the current or previous minimum income threshold.
35. To the extent that Mr Jaisri tentatively relied upon the possible relevance of R (Chikwamba) v Secretary of State for the Home Department [2008] UKHL 40 and Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 00129 (IAC), we note that he did not particularise that submission further but in any event, we find that the ratio of that authority does not apply here.
36. In reaching that conclusion, we have reminded ourselves of the Court of Appeal’s recent analysis of the principle in Butt v Secretary of State for the Home Department [2025] EWCA Civ 189 at §§18-20.
37. Simply put, the appeal before us is not a removal case and our finding is that the Appellant’s financial evidence does not meet the requirements of the Rules or the underlying policy rationale under the assessment of exceptional circumstances. This is not therefore a case in which the appellant is certain to be granted entry clearance in the event that he sought it.
38. Whilst the length of ongoing separation may well be for a number of months, we take the view that it is not unjustifiably harsh to expect the Appellant to wait for a further period of time to make a Rules compliant application for entry clearance. On the Sponsor’s evidence he is currently earning £30,000 which exceeds the current minimum income threshold of £29,000 and he will be expected to provide the other financial evidence required in Appendix FM-SE.
39. Furthermore, Appendix FM-SE also allows for applicants to rely upon any salaried job offer or sufficiently evidenced prospective employment/self-employment for their partner (paragraphs 4, 8A & 21A(2)(b)) or potential, credible third-party support (21A(2)(a)). There is also the further option for the Appellant to make representations in respect of exceptional circumstances should it be necessary under GEN.3.1. or 3.2.
40. In our judgment, the best interests of the Appellant and the wider right to a family life is outweighed by the countervailing considerations described above. We therefore find that the public interest does outweigh the Appellant’s family life with the Sponsor in the UK and that he has not established that there are unjustifiably harsh consequences arising from the challenged decision.
Notice of Decision
The Article 8 ECHR appeal is dismissed.

I Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 November 2025