Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002014

First-tier Tribunal Nos: HU/52466/2024
LH/00873/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BEN KEITH

Between

SM
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Joshi (Counsel)
For the Respondent: Ms Tariq, Senior Home Office Presenting Officer

Heard at Field House on 24 September 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.

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge P Lewis of the decision of 26 February 2025 in which the Judge dismissed the appellant’s human rights appeal.

2. The hearing was conducted before me in person. I heard submissions in relation to the of error of law. At the end of the submissions, I indicated that I considered that there was an error of law and that I would give written reasons.

3. I asked for submissions on disposal of the case. The Home Office sought an adjournment to take instructions I gave the presenting officer time to take instructions. She was though no fault of her own unable to do so. The issues in the case are narrow and I considered it to be in the interests of justice to hear the case on the same day. The only witness was present and spoke English. The presenting officer asked for time to prepare the case and was granted it. We commenced the hearing at 1500 in the afternoon. The presenting officer said she had sufficient time to prepare the case and so I heard the evidence.

4. For the reasons set out below I find there was an error of law and upon rehearing the matter I allow the appeal.

Error of Law

5. The appellant is a national of Ghana she applies to join her father the sponsor who resides in the UK with his partner. The appellant’s mother has left Ghana to live in the US. The issue in relation to error of law is not straight forward. The hearing before the First Tier took an odd turn of events.

6. In the First Tier the position of the Home Office in the refusal was that the appellant was not related to the sponsor or the father. At the hearing it was then conceded by the Home Office that as a result of a DNA report that the father was related to the daughter. However, the Home Office still maintained the refusal was properly made as the appellant was relying on the relationship with the step mother (Uk national) and not the father to support the application. The advocates agreed to proceed but it seems that everyone was led down a legal black hole and discussed the definition of “parent” within Appendix FM. The step-mother does not meet the criteria of Appendix FM.

7. Unfortunately for the appellant that discussion and argument was on the wrong premise and irrelevant to the real issue. The actual issue in the case was whether there were serious and compelling circumstance and unjustifiably harsh consequences if she were not allowed to enter the UK to join her father.

8. The reason that is the real issue is that the situation that the appellant find herself in is paradigm example. So much so that the facts of this case fit in my judgment perfectly within the Guidance. At page 15 of the Guidance the Home Office states a number of factors (my emphasis):

Factors that are more likely to indicate that there are serious and compelling reasons, if supported by evidence:

Only one parent is coming to the UK, but the other parent is:

• living somewhere which make it impossible for them to care for the child, for example they are filming in a hostile location, going on military manoeuvres, or there is another reason why it would not be safe for the child to live with them
• living in a country where the child cannot go, for example where being a single parent is not allowed
• planning to join the family after undergoing medical treatment or after completing their current work or study commitments within the period of the grant of permission that the child applicant is applying for
• looking after a relative overseas who requires care, such as an elderly parent
• no longer in a relationship with the parent coming to the UK, and unwilling to move to the UK, and the child currently lives with the parent coming to the UK

9. On the face of the facts the appellant’s mother is in the US and has no involvement with the upbringing of the children. In granting permission, the Upper Tribunal noted that:

15. I observe that the appellant’s father was permitted to enter this country, at a time when the appellant was unsuccessful in her application as a minor. It is presently unclear whether the appellant resided with her mother or father at the date of decision, though she stated that she resided with her father at the date of application for entry clearance. It is arguable that the First-tier Tribunal did not adequately engage with protected family life rights in circumstances where a child was separated from their father consequent to an adverse entry clearance decision.

16. I observe paragraph GEN.3.3, though it is not clear that the appellant relied upon paragraph GEN.3.2 of Appendix FM: “refusal would result in unjustifiably harsh consequences”.

10. Before me it was argued that the issue was that of unjustifiably harsh consequences I agree.

11. In any event the Judge did not in my view engage adequately with the facts on article 8 the judge stated:

44. In the alternative, Ms. Joshi submits that absence of a clear definition from the respondent as to what is a ‘legal parent’ amounts to serious and compelling reasons in which to allow the appellant’s appeal. The appellant does not advance any other reasons(s) as serious and/or compelling.

45. I have determined that there is a suitably clear framework determine the issue in this appeal. I do not find there are serious and compelling reasons to allow the appeal as Ms. Joshi suggests I should.

12. It was noted in the permission decision that it was not clear exactly how it was put in the First Tier. If it matters I would find that it is obvious within the meaning of the case of Robinson [1998] QB 929 that the circumstances should have been considered in the round in the First Tier. In any event it is argued before me that the Home Office Guidance at the very least should have been considered properly and a decision made on the facts relating to family life made.

13. The Home Office position was that the appellant resided with her mother in Ghana. That position is unsupported by evidence and given that the Home Office found the father to be a credible witness is in my judgement an untenable submission.

14. The arguments have been set out in writing in this case and argued before me today. In my judgment the First Tier Tribunal has not adequately reasoned the Article 8 issue. Firstly, there is no discussion of family life or the facts, secondly because the wrong test was applied by not referring to unjustifiably harsh consequences, thirdly, because there are insufficient reasons and finally because on examination of the Home Offices own guidance it seems taking the facts that were before the First Tier tribunal that this case falls within the required definition.

15. For all the above reasons I find there is an error of law.

Reconsideration

16. The case then proceeded to reconsider the appeal. The appellant’s father gave evidence.

17. The witness identified himself and confirmed his address. He adopted his witness statement at page 43 of the Upper Tribunal bundle, confirming it was true to the best of his knowledge and belief.

18. He gave evidence that before coming to the UK, he lived with the appellant in Ghana at his father's property, which he shared with his four children. The appellant currently resides there with her three siblings, aged 16, 12 and 7. The children are cared for periodically by their paternal aunt, Irene, who attends to them once or twice a week. The aunt lives approximately 40 minutes' drive away and has been caring for the children since the left Ghana. She stays overnight at the house perhaps twice a week. He stated that whilst he has other siblings, the aunt is the closest family member. He confirmed that his other siblings also attend to Stacey, and that the children refer to the aunt as “Mummy”.

19. The appellant attends school in Ghana and travels there independently. She was 17 years old when the witness came to the UK. When asked why only she was the subject of this application, the father stated that he does not have the means to bring all his children to the UK but would do so if he could. He explained that he wishes his children to be with him.

20. Regarding the children's mother, the witness stated that his last contact with her was when he requested a letter through a friend. The mother informed him at that time that she would be leaving for the United States in 2024. He has no further evidence of her whereabouts and confirmed she is a Ghanaian national.

21. The witness confirmed that he asked the aunt to care for the children. She is married with one child under 18. He sends money to the aunt, who manages it for the children's care. He communicates with the appellant almost every day.

22. When asked why he had not provided a witness statement from the aunt, he stated he had no reason and did not think it necessary.

23. I find the witness to be a credible witness. He gave his evidence in a straightforward and consistent manner. He was candid in his responses, including when he did not have information, such as regarding the appellant’s friendships. His evidence regarding the care arrangements and his communication with his daughter was coherent and plausible. He answered questions directly, including under cross-examination, and did not attempt to embellish his evidence. There were no material inconsistencies in his account. I accept his evidence.

24. I should note that the Home Office in submissions looked to criticise his answers and say that although he was credible, he was not telling the truth and there was no evidence. I explained that since there had been no cross-examination that indicated any disagreement or putting an alternative case to the witness that those submissions were in my judgment impermissible.

25. The Home Office was invited to apply to reopen cross-examination to put the case to the witness and I allowed the advocate to do so. The question asked in further cross-examination was to ask the witness why he gave inconsistent answers to the questions about contact with the appellant’s mother. He replied he did not.

26. In my judgment he did not give inconsistent evidence.

27. Submissions from the Home Office was that the was and “emptiness around the evidence”. By that I take it to mean that the appellant had not made out her case. The Home Office made the following submissions – the appellant was credible, there was an emptiness of evidence, the test was not met.

28. I asked for clarification on the position as to whether the facts of this case sat withing the Guidance specifically that the mother is “no longer in a relationship with the parent coming to the UK, and unwilling to move to the UK, and the child currently lives with the parent coming to the UK”. There were no effective submissions made on the point other than to submit that there was not enough evidence.

29. In my judgment there is enough evidence. The appellant falls squarely within the definition and I find it is a factor that tips the balance. The witness was credible and believable. The only real issue was whether the appellant’s mother is still in Ghana. I find as a fact that on the evidence he has moved to the US. I do not begin to understand the domestic arrangements that have left the children being cared for by the aunt. However, on the facts of this case I find it would be unjustifiably harsh to prevent the appellant to enter the UK to live with her father.

30. I therefore allow the appeal.

Notice of Decision

1. There is an error of law.
2. The appeal is allowed

Ben Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2025