UI-2025-002298 & Ors.

• Status of case: Unreported
• Hearing date: 24 Jul 2025
• Promulgation date: 15 Aug 2025
• Publication date: 2 Sep 2025
• Last updated on: 2 Sep 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-002298
UI-2025-002300
UI-2025-002299

FtT Nos: HU/54166/2024, HU/54167/2024, HU/54168/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
15th August 2025


Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
ENTRY CLEARANCE OFFICER
Appellant
and

AE
FE
PE
(ANONYMITY DIRECTION MADE)
Respondents


Representation:
For the Entry Clearance Officer: Mr K Ojo, Senior Presenting Officer
For AE, FE and PE: Mr D Bazini and Ms S Ferrin, Counsel, instructed by Wesley Gryk Solicitors LLP

Heard at Field House on 24 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, AE, FE and PE are granted anonymity.
No-one shall publish or reveal any information, including the name or address of AE, FE and PE, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. Although this appeal was bought by the Entry Clearance Officer, for the sake of continuity I shall refer to the parties as they were before the First-tier Tribunal: thus, the Entry Clearance Officer is once again “the respondent” and AE, FE and PE are “the appellants” or “the first appellant”, “the second appellant” and “the third appellant”, where appropriate.

2. The respondent appeals with permission against the decision of First-tier Tribunal Judge Manyarara (“the judge”), promulgated on 3 April 2025 following a hearing on 17 March of this year.

3. The appellants are Afghan nationals. The first appellant is the husband of the second and they are the parents of the third (their daughter, who has been an adult at all material times). For reasons which will become clear, the appellants fled Afghanistan in late March 2022 and travelled to Russia (attempts to escape with the assistance of the United Kingdom and/or German authorities had failed). Whilst in Russia with temporary protection status, the appellants made entry clearance applications on 14 November 2023, based on the adult dependent relatives provisions of the Immigration Rules (which, as of 1 June 2023, are contained in Appendix Adult Dependent Relative to those Rules). The United Kingdom-based sponsor was the adult son of the first two appellants in the brother of the third, AW, a British citizen who heard previously been recognised as a refugee in this country (“the sponsor”).

4. By decisions dated 14 March 2024, the respondent refused the applications on the following grounds. First, that the appellant’s were not related to the sponsor. Secondly, that appropriate care was available and affordable in Russia for the various (significant) health conditions suffered by the appellants and therefore the Rules could not be met. Thirdly, that the appellants’ circumstances did not demonstrate exceptional circumstances (i.e. unjustifiably harsh consequences for them and/or the sponsor) such that entry clearance should be granted notwithstanding the inability to meet the adult dependent relatives provisions of the Rules.

5. I note that within the consideration of Article 8, the respondent’s reasons for refusal letter stated that the appellants “may have a family life with your sponsor…”, although there was no express concession to that effect.

6. Having lodged in-time appeals against the respondent’s decision, the pre-hearing preparatory process was undertaken. The appellants provided a detailed skeleton argument (referred to as the “ASA”) and the respondent subsequently produced a review, dated 4 February 2025. The review expressly accepted the familial relationship between the appellants and the sponsor, whilst maintaining the other grounds of refusal. It reiterated the acknowledgement that family life “may exist” for the purposes of Article 8, although once again no express concession was made.

7. I note that the review began with a confirmation that it had been undertaken in line with the Senior President of Tribunals’ Practice Direction of the First-tier Tribunal, dated 1 November 2023. Amongst many other matters, this important document cemented the need for parties to adopt and act consistently with an issues-based approach and to comply with procedural rigour: [1] of the Practice Direction and see Lata (FtT: principle controversial issues) [2023] UKUT 163 (IAC). I shall return to this issue in due course.

The judge’s decision
8. What follows is only a summary of the judge’s decision. It is right to say that whether or not it contains material errors of law, the decision is a conscientious piece of work in respect of what was a difficult case.

9. The judge set out the relevant issues requiring determination at [20]: whether the appellants could satisfy the Rules and, if not, whether the respondent’s decision was a disproportionate interference with Article 8 rights because it gave rise to unjustifiably harsh consequences.

10. The judge set out her findings of primary fact at [21]. She found the sponsor to be a truthful witness in respect of the appellants’ circumstances in Russia and the family’s circumstances more generally. The following facts were found to have been either admitted or proved:

(a) the appellants belonged to the Hazara Shia minority in Afghanistan and were residing in Russia;

(b) the first appellant was a surgeon, well-known for a specialism in operating on children with cleft lips and palates. He had worked for a German NGO and had been a member of a community-led organisation promoting the rights of the Shia minority. He had been abducted and tortured by the Taliban in the past;

(c) the second appellant was a teacher. She had taught young girls despite a ban on this when the Taliban first took power in the 1990s. She had been a member of a woman’s rights organisation in Afghanistan and had worked with the first woman’s community radio station in the north of the country. She advocated for equal rights for women and had spoken out against the dangers of child marriage;

(d) the third appellant had been a university student studying psychology. She had been unable to complete her studies in 2021 due to the Taliban’s assumption of power;

(e) the sponsor had fled Afghanistan in 2007 and had been recognised as a refugee in this country in 2010. He is married to a British citizen and they have two British citizen minor children;

(f) following the Taliban’s ascent to power in August 2021, the family went into hiding. The appellants, with the assistance of the sponsor, unsuccessfully sought assistance from United Kingdom and German governments;

(g) a German NGO with whom the first appellant had worked helped to arrange the family’s journey to Russia (that being the only country with a functioning consulate in Afghanistan in which was able to provide visas);

(h) once in Russia, the family were granted temporary protection status. This expired in January 2025. There were significant restrictions on the appellants;

(i) in the summer of 2022, the appellant’s requested assistance through the Afghan Citizens Resettlement Scheme operated by the United Kingdom government. This was refused in March 2023 because none of the appellant’s had worked as contractors for relevant organisations;

(j) the first appellant suffered from PTSD. The second appellant suffered from PTSD, panic attacks, anxiety, high blood pressure, and heart arrhythmia. The third appellant suffered from PTSD. The first and second appellants were entirely reliant on the care provided by the third, in conjunction with remittances provided by the sponsor. The third appellant was unable to afford mental health care for herself;

(k) the sponsor had been in contact with the appellant’s since their arrival in Russia and had been responsible for their maintenance;

(l) there would be no medical care available to the appellant in Afghanistan.

11. The judge then applied the primary findings to the relevant legal framework, beginning with the application of the adult dependent relatives Rules. She concluded that the relevant provisions were not met: [26]-[53]. This was seemingly on a narrow basis and one which, it would seem, might arise only rarely. Having considered the matter in some detail, the judge concluded that the appellants were neither “living in” Russia or Afghanistan for the purposes of the Rules. She reasoned that they were clearly not in what would ordinarily be the relevant country, namely Afghanistan. Their position in Russia was so precarious and lacking in any intent to remain there long-term that it could not be said that they were “living in” that country either. They were, as described by the judge, “in limbo”. It appears as though the judge found that all other aspects of the Rules were satisfied.

12. Turning to Article 8 outside of the Rules, the judge directed herself to the need for the appellant to demonstrate exceptional circumstances, which in turn required them to show unjustifiably harsh consequences. Well-known authorities were referred to in support of this.

13. At [63]-[72], the judge referred to a number of well-known binding authorities on family life within Article 8(1) and, in particular, the principles to be applied when considering whether such life existed between adults. In essence, the judge directed herself that the question of whether such family life existed was one of fact, to be assessed on the particular evidence in the case and in light of the test set out in Kugathas v SSHD [2003] EWCA Civ 31.

14. Having regard to the family’s circumstances as a whole, the judge found that there was a “shared family history”, that the sponsor had been providing support to the appellants, that the appellant’s were dependent on him, and that there was family life; there existed ties which went beyond the norm, including “effective, real or committed support”: [73]-[74].

15. The judge then directed herself that the character and intensity of the family life was relevant to the assessment of proportionality: [75]. She referred to a number of binding authorities on the correct approach to the balancing exercise and the need to strike a “fair balance” between the rights of individuals and the public interest: [76]-[78]. She directed herself to the need to consider the rights of the family as a whole: [80]-[81]. At [82]-[89], the judge essentially summarised her findings of primary fact and applied those facts to the proportionality exercise. She concluded that the sponsor could not be reunited with the appellant’s in either Russia or Afghanistan. She referred to the significance of the Rules, the public interest in maintaining immigration control, and the fact that Article 8 does not confer a simple choice as to where family members may reside. Part 5A of the Nationality, Immigration and Asylum Act 2002, as amended, was referred to.

16. At [91], the judge restated the need for the appellants to demonstrate an “exceptional case” with “compelling reasons” as to why the public interest was outweighed. She concluded that the appellants had been able to do so. The appeals were allowed.

The grounds of appeal and grant of permission
17. Five grounds of appeal were put forward.

18. Under the heading “Making a material misdirection in law”, ground 1 asserts that the judge erred in “failing to properly consider” whether Article 8 was engaged. The judge provided “no reasons” for her finding that there was family life. The judge failed to consider that previous family life “must have been severely diluted” by the passage of time and failed to consider why there had been no visits by the sponsor. There is an allusion to family life having to exist “in an exceptional sense”. The grounds cite Kumari v The Netherlands App 440151/20 and Arshad v SSHD [2025] EWCA Civ 355. The judge failed to apply “the principles” in Arshad. The respondent’s decision only maintained the status quo.

19. Ground 2 asserts that the judge failed to provide adequate reasons for her finding on family life. There is reference to Strasbourg case-law. The ground ends with the assertion that, “The existence of a positive obligation under Article 8 therefore could not be presupposed, and considered to be a relevant matter, when assessing whether the decision ‘engaged’ Article 8 at all.”

20. Ground 3 asserts that the judge’s assessment of proportionality failed to consider material matters and was perverse. The judge had failed to take account of the appellant’s ability to access medical assessment and had failed to acknowledge the strong public interest in immigration control. The judge failed to “identify the precariousness of the relevant family life”. Reference is made to the fact that the United Kingdom “has chosen not to implement a scheme for family reunion in this context.” The judgment in Arshad is again cited, with reference to the existence of precarious family life. Finally, it is said that the judge failed to address section 117B(3) of the 2002 Act.

21. Grounds 4 and 5 are tied up together. In essence, they assert that the judge erred in having any regard to the appellants’ circumstances because they were outside of United Kingdom. The judge should have been concerned solely with the rights of the sponsor. The judge could not consider private life or Article 3. What was said by the Court of Appeal in Abbas v SSHD [2017] EWCA Civ 1393 was obiter and the decision of the Upper Tribunal in Al Hassan and Others (Article 8; entry clearance; KF (Syria)) [2024] UKUT 234 (IAC) is wrong.

22. Permission to appeal was granted by First-tier Tribunal Judge Parkes in a decision dated 27 May 2025. He stated that “The provisions of the ECHR only apply to those within the jurisdiction of the UK which the Appellant’s are not.” No consideration was given to the question of whether any of the points raised in the grounds of appeal had in fact been argued before the judge below.

Rule 24 response
23. Following the grant of permission, a detailed rule 24 response was provided on 24 June 2025.

Procedural matters
24. Once permission has been granted the Upper Tribunal issues standard directions requiring the party bringing the appeal to file and serve a composite error of law bundle containing all relevant materials. In this appeal, the standard directions were issued on 28 May 2025. The respondent failed to comply with these and a chasing notice was sent to the respondent on 11 July 2025. This contained a warning of possible costs implications for non-compliance together with a new deadline of 4pm on 14 July 2025 for the provision of an error of law bundle.

25. Despite initial non-compliance and the further opportunity to comply, the respondent failed to provide the error of law bundle.

26. In order to avoid the real possibility of an adjournment, and to her real credit, Ms Baxter of the appellants’ solicitors provided a comprehensive error of law bundle on 24 June. In addition to the core materials, the bundle contained an application for anonymity and to rely on new evidence if the case went on to the re-making stage. The new evidence consisted of an updated describing recent developments in the appellants ’circumstances. Accompanying that bundle was a covering letter including what I have treated as an application for costs in respect of the respondent non-compliance with the standard directions.

27. I issued oral directions at the error of law hearing to facilitate a decision on that application in due course. For the record, the appellant was to provide any further written submissions and a schedule of costs by 28 July 2025, with the respondent providing a response by 4 August 2025.

The hearing
28. The updated witness statement from the sponsor confirmed that the appellants had been forced to leave Russia removed to Afghanistan, and had instead travelled to Iran. They had resided there on a highly precarious basis. At the outset of the hearing, Mr Bazini informed me that the Iranian authorities and subsequently forcibly returned the appellants to Afghanistan, where they currently reside in hiding.

29. As a preliminary matter and having regard to the above, I decided that an anonymity order was appropriate in this case. Although there is no international protection claim in play, the factual circumstances of the appellants is such that there is, on any rational view, a significant risk to their safety in Afghanistan. Mr Ojo did not object to the making of an order.

30. I asked Mr Ojo if there was any explanation for the wholesale non-compliance by the respondent with the standard directions. All he was able to say was that there had been an “administrative error”. I do not attach any blame to him personally, but that is, quite frankly, inadequate. The non-compliance was complete and persisted notwithstanding the Tribunal’s administrative staff chasing the matter up. The respondent was unable to provide any detail, let alone any evidence, as to what in fact had occurred and why.

31. The failure is inimical to the respondent’s duty to assist the Tribunal with furthering the overriding objective. It put the appellants’ solicitors to expense and effort in doing all they could to ensure that the error of law hearing was effective.

32. Turning to the substance of the respondent’s challenge, I raised with Mr Ojo the question of whether any of the points raised in the grounds of appeal had in fact been put to the judge, whether in writing or orally. Although the judge’s decision did not include a recitation of the submissions made, the content of her decision did not reflect the arguments now sought to be relied on by the respondent. Mr Ojo was unable to assist.

33. I put the same question to Ms Ferrin, who had appeared before the judge and was in a good position to provide further information: Abdi v ECO [2023] EWCA Civ 1455, at [25]. She categorically confirmed that none of the arguments in the grounds of appeal had been put forward by the respondent to the judge.

34. I have no hesitation in finding that Ms Ferrin’s confirmation is reliable. In addition to her having been at the hearing below, the respondent has not asked for the audio recording of the hearing, the HOPO’s minutes of the hearing was, as described by Mr Ojo, “not helpful”, and there is no other indication whatsoever to contradict Ms Ferrin’s recollection.

35. Having addressed these preliminary matters, Mr Ojo stated that he was relying on the grounds of appeal and had nothing more to add.

36. Mr Bazini relied on the rule 24 response. He described the respondent’s overall conduct in respect of this appeal as a “disgrace”, with particular regard to fact that the grounds of appeal were all new points. This had led to not only waste of time, but also real-world consequences for the appellants, who had now been forced back to Afghanistan whilst waiting for this appeal to be determined.

37. Mr Bazini submitted that the judge had correctly directed herself in respect of the fact-sensitive assessment of family life. The judgments in Kumari and Arshad made no difference to the relevant test for family life in cases such as the present. The judge had clearly had regard to the public interest and the inability of the appellants to satisfy the Rules, albeit that the failure had been on what he described as a “technicality”. In assessing proportionality, the judge had simply followed binding case-law. The assessment was multi-faceted. There had been no evidence from the respondent in respect of any decision not to create a scheme for persons in the appellants’ situation and in any event, the balancing exercise was fact-specific. The judge had specifically found that the family life could not be enjoyed outside United Kingdom.

38. There was no reply from Mr Ojo.

39. At the end of the hearing I announced to the parties my decision that the judge’s decision did not contain any material errors of law and that accordingly the respondent’s appeal was dismissed, with written reasons to follow.

Discussion and conclusions
40. There are two important overarching considerations when approaching my assessment of whether the judge materially erred in law. The first is the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal. Over the course of many years, the higher courts have emphasised the importance of the application of such restraint before interfering with a first-instance decision. Examples include: Biogen Inc. v Medeva plc [1996] UKHL 18, at [54]; SSHD v AH (Sudan) [2007] UKHL; [2008] 3 WLR 832, at [30]; Fage UK Ltd. v Chobani UK Ltd. [2014] EWCA Civ 5, at [114] and [115]; UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095, at [19]; MA (Somalia) v SSHD [2020] UKSC, at [45]; Lowe v SSHD [2021] EWCA Civ 62, at [29]; Volpi v Volpi [2022] EWCA Civ 464, at [2]; HA (Iraq) v SSHD [2022] UKSC 22, at [72]; Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51]; and most recently Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47].

41. For present purposes, the essential principles derived from these authorities can be summarised as follows:

(a) Although "error of law" is widely defined, the Upper Tribunal is not entitled to set aside the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one;

(b) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that the judge was “plainly wrong”;

(c) What matters is whether the decision under appeal is one that no reasonable judge could have reached;

(d) The judge must consider all the relevant evidence relied on by the parties, although it need not all be specifically addressed in the judgment;

(e) The weight attributed to relevant evidence is pre-eminently a matter for the judge;

(f) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable;

(g) The reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract;

(h) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account;

(i) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out;

42. I confirm that I have had regard to these propositions, amongst others, when considering the respondent’s challenge.

43. The second consideration is that of procedural rigour and the manner in which a party should conduct litigation in this jurisdiction. Putting to one side the non-compliance with directions and the apparently unconcerned attitude adopted by the respondent to that, this case represents what in my judgment is an example of what might be described as something close to disdain for a number of the propositions elucidated by the Court of Appeal and the authoritative guidance provided by the Upper Tribunal in respect of the issues-based approach, as set out in Lata, TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 164 (IAC), and Rai and DAM (Grounds of Appeal - Limited Grant of Permission) [2025] UKUT 150 (IAC) (for reference and to avoid unnecessarily increasing the length of this error of law decision, I have set out the judicial headnotes of the three Upper Tribunal decisions in an annex).

44. For present purposes, the relevant principles can be distilled down to the following. Parties are obliged to set out their respective cases clearly and on an issues-based footing in advance of a hearing in the First-tier Tribunal. At the very least, material arguments must be put at that hearing even if they have not been advanced beforehand (subject to questions of fairness to the other party). This approach assists the tribunal in reaching fair and efficient decisions, allows for appropriate conciseness in those decisions, and avoids the impermissible treatment of first-instance hearings as a “dress rehearsal”, as to which see Fage at [114].

45. In the present case, the broad issues relating to Article 8 had been identified by the respondent and remained issue before the judge: there was no express concession as to the existence of family life and it was not accepted that exceptional circumstances had been shown. However, as stated previously, I am satisfied that none, or virtually none, of the particular substantive points raised in the five grounds of appeal were in fact argued before the judge (I acknowledge that the judgment in Arshad post-dated the hearing and so could not have been the subject of submissions at the time). For example: the specific considerations relating to the existence of family life were not raised; Kumari was not cited nothing said about its potential impact; there had been no references to Strasbourg cases in respect of positive obligations; and the territoriality argument on Article 8 and the proportionality exercise formed no part of the respondent’s case.

46. That the grounds of appeal do not reflect the case which had been put to the judge by the respondent is anathema to the approach required by the First-tier Tribunal’s Practice Statement, the authoritative guidance from the Upper Tribunal, and the impermissibility of treating first-instance hearings as dress rehearsals.

47. The unedifying manner of the respondent’s approach is only compounded by the failure even to acknowledge in the application for permission the fact that all or virtually all of the points raised in the grounds had not been argued below. Indeed, the silence, so to speak, arguably came close to potentially misleading the judge who considered the application for permission to appeal.

48. In the event, the judge who granted permission does not appear to have enquired whether any of the matters set out in the grounds were raised at first instance. He might have considering the respondent’s refusal letter, the review, or indeed the contents of the judge’s decision itself. I appreciate that deciding application for permission to appeal does not involve an in-depth interrogation of the case. However, it is always important for judges to be cognisant of whether grounds of appeal are predicated on matters which were canvassed at first instance: see TC, at [5] of the judicial headnote.

49. Finally, one might infer that the (presumably) considered decision of Mr Ojo not to elaborate on any of the grounds of appeal notwithstanding the fact that virtually all of the arguments contained therein had not been canvassed below, was indicative of a lack of confidence in the challenge. At the very least, the absence of any oral submissions self-evidently added nothing to the respondent’s case.

50. Bringing all of the above together, I conclude that the respondent’s challenge fails on the simple basis that the matters raised in the grounds of appeal were not raised before the judge. Except for the reliance on Arshad (which, for reasons set out later, could not have made any material difference to the judge’s decision), those matters could and should have been argued below and not left for the application for permission to appeal. The grounds have treated the hearing before the judge as a dress rehearsal. As was made clear in Lata, a failure to have taken the points at first instance presents a real obstacle to the success of grounds of appeal based on the new arguments. In the circumstances of this case, the obstacle is insurmountable.

51. In case I were wrong in respect of my primary conclusion, I turn to consider each of the grounds of appeal on their merits.

52. I preface what follows by reiterating the context in which they must be considered. First, none, or virtually none, of the particular arguments set out in the grounds were canvassed before the judge. Secondly, the grounds have not been elaborated upon before me. If the respondent’s disinclination to provide oral submissions was born out of a belief that the grounds were so self-evidently meritorious that nothing more was required, this was misplaced for the reasons set out below. Thirdly, none of the judge’s primary findings of fact have been challenged.

53. Ground 1 is not made out. First, it is unclear what is actually meant by “failing to properly consider” the Article 8(1) question. Secondly, the judge self-evidently applied the appropriate test for family life as between adults, as set out in the binding authorities: a fact-sensitive assessment requiring something beyond normal ties of affection. She did “properly consider” the relevant question. Thirdly, it is plain that the judge was well-aware of the family’s particular circumstances, both past and present. There is nothing to indicate that relevant considerations were not taken into account and, not every step of the reasoning process need be set out by a judge. The issue of visits by the sponsor to the appellants or vice versa was, on any view, misplaced: the respondent has not in any way explained how the sponsor could have visited Afghanistan or Russia, nor has it been suggested that the appellant’s could have obtained visit visas whilst in Afghanistan or Russia. Reference to “exceptional” family life in the grounds is also misplaced: there is no test of exceptionality: Rai v ECO [2017] EWCA Civ 320. Fourthly, having direct himself correctly in law, the judge adequately explained why, on the facts, there was family life between the appellants and the sponsor. There was sufficient dependency to demonstrate ties beyond the norm. That finding was rationally open to the judge. Fifthly, ground 1 does not explain how Kumari alters the test for family life between adults and I conclude that it does not demonstrate that the judge materially misdirected herself. It reiterates well-established principles in respect of family life, and confirms that cases are fact-sensitive. Sixthly, ground 1 does not explain why the judge materially erred in law by failing to apply “the principles” in Arshad. It is plain that the judge did not conclude that the existence of family life in and of itself rendered the respondent’s decision disproportionate. Indeed, she specifically addressed the nature and quality of the family life when considering proportionality.

54. Ground 2, which is related to the first, is not made out. In my judgment, references to the respondent’s refusal simply maintaining the status quo indicate a misapprehension on the respondent’s part. Clearly, the refusal of entry clearance would maintain the status quo in any given case: the separation of family members necessarily continues. However, that status quo can be a disproportionate interference with family life (if such family life has been found to exist, as here) where there are exceptional circumstances. The judge found there to be such circumstances (resulting in unjustifiably harsh consequences). She did not presuppose any positive obligation resting with the respondent, but instead carried out a proportionality exercise which resulted in an outcome favourable to the appellants on the facts of the case. The references to Jeunesse v The Netherlands (2015) 60 EHRR 17 and Konstatinov v The Netherlands App No. 16351/03 takes the respondent’s challenge no further. They simply confirm that the boundaries of where a positive obligation may arise do not lend themselves to precise definition: in other words, cases are fact-sensitive. That is the approach adopted by the judge.

55. Ground 3 is not made out. The judge took account of the limited healthcare assistance available in Russia which had been funded entirely by the sponsor. She also took account of the fact that the third appellant was unable to access treatment. The judge unarguably took account of the importance of the public interest in maintaining effective immigration control: specific reference was made to the public interest in refusing leave to enter to those who could not speak English, who were not financially independent, and he did not meet the requirements of the Rules: [84]. The judge confirmed that Article 8 did not simply allow individuals to circumvent the Rules (which themselves represent the respondent’s stated position as to where the public interest lies) and correctly recognised that the Rules ordinarily strike the balance between individual rights and the public interest. The judge acknowledged the mandatory considerations contained in section 117B of the 2002 Act.

56. As to the respondent reliance on precariousness, this too is misplaced. Precariousness is a consideration which fixes to relationships between family members who are together in this country and where one or more of them is here unlawfully or otherwise with limited status. The respondent’s reliance on Arshad is rather beside the point. Arshad concerned an individual who was in this country as an overstayer. The Court was not concerned with an entry clearance scenario. In any event, as Mr Bazini rightly pointed out, the judge had in any event found there to exist exceptional circumstances.

57. Ground 3 alludes to the absence of a family reunion scheme as having been a relevant consideration. There was no evidence about this before the judge (indeed, the point had of course not even been raised below). In any event, I agree with Mr Bazini’s submission that this was not a relevant consideration over and above the maintenance of effective immigration control. At most it would have been of neutral value.

58. Nothing produced by the respondent demonstrates that the absence of a Rules-based scheme on a particular matter (or for that matter a free-standing published policy) constitutes a separate public interest consideration which will separately count against an individual. Agyarko v SSHD [2017] UKSC 11 requires decision-makers to strike a fair balance between competing individual and public interests and this was predicated on the existence of Rules and the inability of the individual to satisfy them: [47]-[48], [57]-[60]. The judgment provides no support for respondent’s (apparent) contention that the judge should have factored in the two distinct considerations of a failure to meet the Rules and the absence of a scheme. It must be the case that the absence of a statement of policy within the Rules is the corollary of the existence of Rules: they do not amount to separate considerations, each liable to the attribution of considerable weight against an individual’s case.

59. Further, the decision of whether to establish a resettlement scheme is a matter for the Executive and/or Parliament. However, in the present case the judge was not considering a “resettlement” scenario in which the appellants were seeking international protection; she was concerned with a family life claim under Article 8. If she had thought that the whole case amounted to little more than a contrived attempt to obtain resettlement through the back door, it might have been open to her to find that family life did not in fact exist at all. But she did not do so. Thus, the statutory scheme under sections 82 and 84 of the 2002 Act, combined with the well-known authorities on the correct approach to the appellate jurisdiction, entitled (indeed, required) the judge to follow a conventional step-by step route through to the proportionality exercise. Once family life had been found to exist, it was for the appellants to demonstrate exceptional circumstances and that was the basis on which the judge correctly approached the question of proportionality.

60. I can take grounds 4 and 5 together as both relate to what might be described as a territoriality point. I conclude that the points raised do not demonstrate an error of law by the judge. She clearly considered the family unit as a whole, as she was bound to: [81]. The contention that the judge was precluded from considering any of the appellants’ circumstances when undertaking the proportionality exercise is misplaced. First, it is the common experience within this jurisdiction that the respondent herself routinely considers the circumstances of overseas appellants when making decisions on Article 8. Indeed this is what occurred in the present case. Secondly, the Rules themselves contain provisions relating to applicants from overseas which are directly related to Article 8: see, for example, paragraph ADR.7.1 of Appendix ADR provides for exceptional circumstances resulting in unjustifiably harsh consequences for “the applicant” and/or the United Kingdom-based sponsor. GEN.3.2(2) of Appendix FM contains a similar provision. The contention in the grounds appears to directly conflict with the Rules.

61. Secondly, the judge found as a fact that family life existed between the appellant and the sponsor and had considered the family unit as a whole. That was the “jurisdictional peg” which then permitted the judge to consider the appellants’ circumstances: SSHD v Abbas [2017] EWCA Civ 1393, [16]-[19] and [25]. The Court in that case was simply following well-established principles set out in the domestic and Strasbourg jurisprudence. Further, the respondent has failed to demonstrate that the decision of the Upper Tribunal in Al-Hassan is wrong. I conclude that Al-Hassan simply reflects the correct approach to cases involving family life between individuals who are geographically separated.

62. It follows from the above that, having exercised appropriate judicial restraint, there are no material errors in the judge’s decision.

63. The rule 24 response raised an additional matter which it is said the judge should have factored into her proportionality assessment. She concluded that the appellants could not satisfy the Rules because they were not “living in” Russia or Afghanistan. That was described in the rule 24 response as a “technicality”. In light of my conclusions that all of the respondent’s grounds fail, it is unnecessary for me to decide this point. For the sake of completeness, I conclude that the narrow basis for non-compliance with the Rules was, in the particular and unusual circumstances of this case, a relevant consideration which the judge should have taken into account. However, the assessment actually undertaken by the judge was of itself sufficient.

64. I conclude by adding an observation. Subject to any onward appeal, I would strongly urge the respondent to implement the decision of the First-tier Tribunal expeditiously. On any view, the appellants are in a dangerous position in Afghanistan.

Anonymity
65. For the reasons set out previously, I make an anonymity direction in respect of all three appellants.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The appeal of the Entry Clearance Officer is accordingly dismissed.
The decision of the First-tier Tribunal stands.


H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 25 July 2025
ANNEX: JUDICIAL HEADNOTES IN LATA, TC, AND RAI AND DAM
Lata
“The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.

2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.

3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.

5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.

6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.

7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”

TC
“1. Practice Statement No 1 of 2022 (‘the PS’) emphasises the requirement on the part of both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues in a particularised yet concise manner. This is consistent with one of the main objectives of reform and a modern application of the overriding objective pursuant to rule 2 of the Tribunal Procedure (FTT)(Immigration and Asylum Chamber) Rules 2014. It ensures that there is an efficient and effective hearing, proportionate to the real issues in dispute.

2. A PS-compliant and focussed appeal skeleton argument (‘ASA’) often leads to a more focussed review, and in turn to a focussed and structured FTT decision on the issues in dispute. Reviews are pivotal to reform in the FTT. The PS makes it clear that they must be meaningful and pro-forma or standardised responses will be rejected. They provide the respondent with an important opportunity to review the relevant up to date evidence associated with the principal important controversial issues. It is to be expected that the FTT will be astute to ensure that the parties comply with the mandatory requirements of the PS, including the substantive contents of ASAs and reviews.

3. The identification of ‘the principal important controversial issues’ will lead to the kind of focussed and effective FTT decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues. The procedural architecture in the FTT, including the PS under the reformed process, is specifically designed to enable these principal important controversial issues to be identified and for the parties’ preparation, as well as the hearing to focus upon them.

4. FTT decisions should begin by setting out the issues in dispute. This is clearly the proper approach to appeals under the online reform procedure where at each major stage there is a requirement to condense the parties’ positions in a clear, coherent and concise ‘issues-based’ manner.

5. The need for procedural rigour at every stage of the proceedings applies with equal force when permission to appeal to the UT is sought and in the UT, including a focus on the principal important controversial issues in the appeal and compliance with directions. The requisite clear, coherent and concise ‘issues-based’ approach continues when a judge considers whether to grant permission to appeal. This means that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal.

6. The reasons for the permission to appeal decision need to focus upon, in a laser-like fashion, those grounds which are arguable and those which are not. To secure procedural rigour in the UT and the efficient and effective use of Tribunal and party time in resolving the issues that are raised, it is necessary for the grant of permission to clearly set the agenda for the litigation for the future.”

Rai and DAM (insofar as is relevant)
“Grounds of Appeal
1. Section 11(1) of the Tribunals Courts and Enforcement Act (“the 2007 Act”) makes provision for an appeal to the Upper Tribunal on any point of law arising from any decision except an excluded decision.  In applying for permission to appeal to the Upper Tribunal, practitioners have a duty to carefully consider whether a challenge to the judge’s findings of fact, or the application of the facts to the legal framework, is material to the outcome of the appeal.  Grounds of appeal are not an opportunity to present a list of errors no matter what the relevance of the error is to the outcome of the appeal.

2. Whether a party is represented or not, they are required to identify the arguable errors of law in the grounds of appeal, adequately, so that the arguable error can be considered by a judge.

3. Each point of law, where there is more than one, must be clearly and succinctly identified as a numbered ground of appeal with sufficient detail so that the Tribunal and the parties are able to identify the essential issue raised by that ground. The grounds of appeal will rarely need to be lengthy. Each ground of appeal should identify succinctly, in clearly numbered paragraphs or (sub paragraphs):
a. The relevant passage(s) in the decision of the FtT.
b. Any relevant primary or secondary legislation only to the extent necessary to do so.
c. Any authority binding upon the judge that is capable of supporting the ground.
d. Brief submissions proving a short explanation to support the ground.

4. The Upper Tribunal is likely to take robust decisions and not permit grounds to be advanced if they have not been properly identified and pleaded, or where permission has not been granted to raise them. 

5. Where there is any issue as to the grounds of appeal upon which permission has been granted, or the scope of the grounds that leads to an adjournment, the Tribunal may impose sanctions, including the making of orders for wasted costs against the parties or their representatives.”