Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002208
First-tier Tribunal No: HU/00277/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

ADRIATIK METALIA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Aziz, Counsel
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 25 November 2025

DECISION AND REASONS

1. The appellant, a citizen of Kosovo, appeals against the decision (“the decision”) of First-tier Tribunal Judge Zucker (“the judge”) dated 26 February 2025 dismissing his appeal against the respondent’s decision to refuse Indefinite Leave to Remain outside the Immigration Rules.

2. The appellant was born in 1970. He arrived in the UK in March 1996 without leave and in the following November claimed international protection as a refugee. In 2001, and before that application was refused on 13 April 2004, the appellant received a custodial sentence of four-and-a-half years. Two unsuccessful appeals against refusal of asylum were lodged in 2004. On 20 May 2008 he became appeal rights exhausted.

3. The appellant then made his first application for Indefinite Leave to Remain outside the Immigration Rules on 17 June 2008, which was refused with no right of appeal. After an out of time application for Leave to Remain submitted on 25 November 2011 and judicial review concluded on 20 August 2012 with permission to proceed refused, the appellant was granted discretionary leave from 14 August 2013 for three years. Having applied in time, the appellant was granted further discretionary leave from 20 October 2017 to 20 October 2020. On 20 October 2020, he made a further application, which was refused on 3 October 2021. This was the application that the judge considered.

4. The respondent accepts that the appellant has a child (“the child”), fourteen years old at the time of the decision, who is a British citizen and residing in the UK. It being accepted that the appellant is a foreign criminal for the purposes of section 117D(2) the Nationality, Immigration and Asylum Act 2002, the parties agreed that the issues before the judge were: (a) did the appellant have a genuine and subsisting relationship with a qualifying child; and (b) would the effect of dismissing the appeal and therefore requiring the Appellant to leave the United Kingdom be unduly harsh for that child? The judge decided these in the negative.

5. Permission to appeal was sought on the basis of grounds dated 13 March 2025 and refused by a judge of the First-tier Tribunal on 11 April 2025. The grounds considered by Upper Tribunal Judge Owens, which are undated, as developed in submissions before me may be summarised as follows:

a. Ground 1: The judge placed too much weight on the absence of testimony from the child.
b. Ground 2: The judge failed properly to consider corroborative evidence, which included a handwritten letter from the child.
c. Ground 3: The judge considered the claim on the basis of what he expected to see rather than properly evaluating what was provided; and was wrong not to treat the appellant as a vulnerable witness solely due to the absence of a formal medical report.

6. In granting permission to appeal out of time on 25 September 2025, Upper Tribunal Judge Owens considered:

“It is at least arguable that the judge failed to properly assess the evidence that did exist of the ongoing relationship between the appellant and his son and that the judge at [19] unreasonably placed too much weight on the failure of the appellant’s 14 year old son to attend court to give evidence without considering whether that was appropriate in accordance with relevant caselaw and principles.”

7. As to the second limb of ground 3, I have heard no submissions on whether the appellant should have been treated as a vulnerable witness and so do not address that part of the grounds any further. Ms Aziz, for the appellant, has instead concentrated on ground 1: arguing that if I find that ground 1 is made out, I will inevitably find that ground 2 and the first part of ground 3 are as well.

8. Before turning to ground 1, I should say that I granted permission to the appellant to rely on two additional documents not before the judge: a statement from the appellant and a statement from his child, both dated 21 November 2025. These short statements go to the nature of the relationship that father and child state they share: the child says that “I believe that I get on well with my father and that he understands me better than my mother”. However, I make clear that I have set aside the judge’s decision for the reasons I give below: not on the basis of this new evidence.

9. In support of ground 1, Ms Aziz she relies upon Re W (Children) [2010] UKSC 12. While the specific issue in Re W was to consider when a court should direct children to give evidence in family proceedings brought under the Children Act 1989, Ms Aziz relies on it for the general proposition that there is no presumption that children should give live evidence in proceedings. At paragraph 24 of that decision, Lady Hale stated:

“When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. A fair trial is a trial which is fair in the light of the issues which have to be decided.”

10. The judge’s approach, submits Ms Aziz, was erroneously different. [19] of the decision reads as follows.

“The consequence of the Appellant being required to leave the United Kingdom would, on Appellant’s case, have a significant effect upon the child and have a financial consequence also. That the only witness in this circumstance was the Appellant himself was I find insufficient when no sufficient reason was given as to why, at the very least the Appellant’s son, aged fourteen could not attend other than it being said that he was, ‘very sensitive’”.

11. She says that instead of the judge considering whether it was appropriate for the child to give evidence, the judge took as his starting point that the child should have given evidence; and then went on to fall into further error by considering the lack of oral evidence from the child symptomatic of shortcomings in the appellant’s evidence as a whole. I reproduce [18] in full:

“I have read the letter which the Appellant’s son has written, and I have seen the photograph of that young man holding the letter as well as some photographs of something of a get-together. However, I find that these various documents have been produced for the purpose of the appeal in an effort to evidence a situation which I do not find on balance exists. There is, I find, an absence of sufficient evidence of continuity of the relationship of the Appellant and his son throughout the relevant period and whilst I look to the situation as it is at the time of the hearing, I simply find the evidence lacking.”

12. The letter referred to is a one-page handwritten letter from the child is undated, though I understand that it was written in or a little before February 2025. The child writes that “I see my dad every weekend”. [20] of the decision goes on to state:

“In all the circumstances, and having considered the totality of the evidence, I find that the Appellant has not established that he has a genuine and subsisting relationship with his son. It seems to me that the photographs of the get-together have been produced solely to bolster a weak case.”

13. Ms Aziz concludes that instead of evaluating the evidence he had, the judge presumed that he should have had the oral evidence of the child before him: which incorrect presumption in itself makes out ground 1. The lack of evaluation led him wrongly to find the evidence was thereby “lacking” at [18] and “weak” at [20], thereby falling foul of both ground 2 and the first part of ground 3.

14. Developing ground 2 further, Ms Aziz observed that the child’s handwritten letter is supported by a two-page document entitled “statement of arrangements for child”, signed by the appellant and the child’s mother and witnessed, which is considered at [16] and [17]. The judge said of it at [17]:

“There was no statement from the person purporting to have witnessed this document. The Appellant’s ex-partner did not attend before me, nor the witness to that document, nor did the Appellant’s son who is now fourteen years of age.”

15. Ms Aziz argues that notwithstanding this, the significance of this document is that it confirms under the heading of “living arrangements” that the appellant “will have weekly contact with the child from Friday afternoon until Sunday evening and/or such other contact as the parties agree from time to time”. This supports the child’s description of contact arrangements between himself and the appellant; and indeed the child’s mother’s statement dated 8 August 2016, which stated that the appellant had “maintained weekly visits with our son since we parted”. Moreover, the document records that the appellant is “to pay a sum of £50.00 per week towards the maintenance of the Child”, which is close to the appellant’s oral evidence, recorded at [16], that he pays the child’s mother about £350 per month.

16. Taking Ms Aziz’s arguments together, Mr Tufan makes two main submissions. Firstly, even if the judge should not have expected the child to give oral evidence, the judge was entitled to assess the evidence he did have in the round and consider it inadequate. There is nothing to suggest that the judge failed to give the child’s handwritten letter proper weight just because the child gave no oral evidence: it is plain from its being referenced at [18] that he took the letter into account. It is clear, says Mr Tufan, that the judge found the evidence not to be lacking just because there was no oral testimony from the child but also, among other things, because there was no further word at all from the child’s mother, notwithstanding that she had apparently been supporting the appellant’s claim. At [17], the judge was right to be anxious that there was no more recent statement from the child’s mother than that dated 8 August 2016: itself only comprising a single page. The interval between her statement, and the statement of arrangements for the child, is therefore some nine years.

17. Secondly, Mr Tufan submits that even if I were to agree with Ms Aziz’s submissions, the decision is saved at [21] for reasons that are uninfected by any error in how the child’s evidence should be approached. I set out [21] in full:

“Even if I am wrong, I do not find that it would be unduly harsh for the Appellant to maintain a relationship with his son from Albania. No sufficient evidence was put before me to explain why the Appellant would not be able to work in Albania and remit money to the United Kingdom. Remote communications are available, the Appellant’s son would be able to visit the Appellant in Albania and as the Appellant is not being deported it would be open to the Appellant to apply to return to the United Kingdom for visits.”

18. I cannot agree with either of Mr Tufan’s submissions. Firstly, while it is true that the judge made wider criticisms of the evidence in support of the appellant’s claim, it is plain from reading [19] that the judge placed considerable weight in his decision on the lack of oral evidence from the child. I cannot see any other interpretation of the judge’s remark that “at the very least” the child could have given oral evidence than to give it its natural reading: that the child’s being allegedly “very sensitive” was insufficient reason for the child’s non-attendance. Nothing in [19] or the rest of the decision demonstrates that the judge had the relevant case law and principles governing children’s evidence in mind, as set out in Re W; nor that he applied those principles to the circumstances of this particular child. The judge has thereby fallen into an error of law under ground 1 by placing too much weight on the absence of testimony from the child.

19. I have some sympathy with Mr Tufan’s submission that the appellant’s evidence as to his relationship with his child was not voluminous. But I consider that the error under ground 1 cascades into the finding at [20] of the decision that the evidence overall is “weak” [20]. Moreover, the finding at [18] that the child’s letter was one of “various documents…produced for the purpose of the appeal in an effort to evidence a situation which I do not find on balance exists” follows directly on from [17], where the judge reflected on the lack of oral evidence from anyone but the appellant. I do consider that the judge’s assessment of the child’s letter and the family photographs he refers to was contaminated by his assessment of the child not having given oral evidence. That assessment led the judge to conclude at [20] that “It seems to me that the photographs of the get-together have been produced solely to bolster a weak case”. Ground 2 therefore also articulates an error of law.

20. To the extent that the judge appeared to have expected, in the absence of other evidence, the child to have provided oral testimony, the first limb of ground 3 is also made out. This, however, discloses no further error than that already articulated by ground 1.

21. As to Mr Tufan’s second submission, I consider that these errors also infect the alternative brief reasons provided in [21]. His conclusion that it would not be unduly harsh for the appellant to maintain a relationship with the child while living abroad is dependent on the finding at [20] that there was no genuine and subsisting relationship, which in turn is undermined by the judge’s approach to the child’s evidence. [21] does not save the decision from the material errors of law I have already identified.

Notice of Decision

1. The judge’s decision involved the making of errors of law and is set aside.
2. I do not preserve any findings of the decision.
3. The matter is remitted to the First-tier Tribunal to be heard by a different judge.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 March 2026