UI-2025-002448 & Ors.

• Status of case: Unreported
• Hearing date: 4 Feb 2026
• Promulgation date: 11 Feb 2026
• Publication date: 3 Mar 2026
• Last updated on: 3 Mar 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-002448
UI-2025-002449
UI-2025-002450


First-tier Tribunal Nos: HU/61815/2024
LH/07811/2024
HU/61819/2024
LH/07812/2024
HU/61821/2024
LH/07813/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 February 2026

Before

UPPER TRIBUNAL JUDGE BLUM
UPPER TRIBUNAL JUDGE GREY

Between

ENTRY CLEARANCE OFFICER
Appellant
and

TAJ (1)
YZJ (a child) (2)
YMJ (a child) (3)
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mr M. Biggs, Counsel instructed by GLD
For the Respondents: Mr D. Chirico KC, Counsel instructed by Safe Passage International

Heard at Field House on 4 February 2026

Although this is an appeal by the Entry Clearance Officer, to avoid confusion, we shall refer to the parties as they were in the First-tier Tribunal. The Entry Clearance Officer shall be referred to as the respondent and TAJ, YZJ and YMJ shall be referred to as the appellants. For the respondent we have used the feminine pronoun.

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity. 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. Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS

1. This is a decision of the Upper Tribunal (“UT”) to which both Judges have contributed. It is to determine whether the First-tier Tribunal (“FtT”) erred in law in allowing the appellants’ human rights appeal.
2. The respondent appeals against the decision of a Judge of the FtT (“the Judge”), who in a decision promulgated on 26 February 2025 allowed the appellants’ appeal under Article 8 ECHR.
3. The appellants are citizens of the Occupied Palestinian Territory. They were displaced from their home in Gaza due to the conflict initiated by events on 7 October 2023. They currently reside in Egypt and applied for entry clearance on 7 May 2024 seeking to join their sponsor in the United Kingdom. The sponsor is the wife of the first appellant and the mother of the second and third appellants, who are twins born in January 2016. The sponsor currently resides in the UK with leave to remain as a student until 30 May 2029 whilst she studies for a PhD at a prestigious UK University.
4. Following a hearing held at the FtT IAC in Birmingham on 29 January 2025, the Judge allowed the appellants’ appeal on the grounds that the respondent’s decision to refuse entry clearance would result in unjustifiably harsh consequences for the appellants and consequently amount to a disproportionate interference with rights protected by Article 8.
The FtT decision
5. In the decision the Judge recorded that the appellants could not meet the requirements of the Immigration Rules for family reunion on the grounds the sponsor does not have protection status. The Judge found that Article 8 was engaged on the basis of family life between the appellants and the sponsor. The Judge found at [9] that the refusal decisions interfere with the appellants’ Article 8 rights and the interference is of sufficient gravity as to potentially engage the operation of Article 8(1). The Judge went on to find that the decision was lawfully open to the respondent and was in pursuit of the legitimate aim of effective immigration control which promotes the economic well-being of the country.
6. The remainder of the decision, from [10] et seq, addresses the question of proportionality. The Judge starts her analysis of proportionality noting the need to strike a fair balance between the “weighty public interest” and the interests of the appellants. She directed herself in accordance with GEN.3.1 of the Immigration Rules that she was required to consider whether there are exceptional circumstances which would render the refusal of entry clearance a breach of Article 8 because such refusal would result in unjustifiably harsh consequences for the appellants or the sponsor.
7. At [11] and [12], the Judge noted the appellants and sponsor had lived together in Gaza until the sponsor was granted leave as a student to complete a one-year Master’s degree in the UK. However, the sponsor had been unable to return home at the end of her course of study because of the outbreak of conflict on 7 October 2023. The appellants fled Gaza in March 2024 and were granted entry to Egypt on a 45-day visa which has come to an end. In Egypt the appellants are living in a house with 13 other people. The sponsor speaks to the appellants daily, supports them financially, and has visited the appellants in Egypt.
8. From [13] to [16] the Judge considered the experts reports relied upon by the appellants, including the reports of a country expert, Alison Pargeter, concerning the circumstances and prospects for the appellants in Egypt, and the social work assessment report prepared by Phil Spencer, a social worker and International Safeguarding and Protection Manager at Safe Passage International. In relation to the report of Phil Spencer, the Judge noted his opinion that the minor appellants’ developmental needs were not being met and that they are likely to be suffering from trauma and would be unlikely to recover if kept away from their mother for much longer. The Judge found the reports “compelling and persuasive” and attached considerable weight to the views of the experts – [18].
9. At [18] the Judge found that it was in the best interests of the children, in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009, to be under the care and guidance of both parents and to join the sponsor in the UK, in a safe and stable environment, receiving an education and recovering from their recent trauma.
10. In relation to the minor appellants, the decision states at [17] that “it is clear, their safety, mental, emotional and physical well-being is in question and their living conditions are not likely to improve”. The Judge again acknowledged that the appellants could not satisfy the Rules but concluded that there were compelling and compassionate circumstances which “tip the balance” in favour of the appellants, particularly the minor appellants, and that the weight attached to the appellants’ family life outweighs the weight attached to the public interest at [20].
The grounds and permission
11. The grounds of appeal provide introductory observations regarding the decision, asserting that the Judge provided “extremely brief reasoning” in “essentially only two paragraphs”, and raise the following five grounds of challenge:
1) The Judge’s assessment of proportionality is vitiated by its failure to identify and apply the correct legal principles, and/or is inadequately reasoned and/or is flawed by a failure to consider material matters and/or is perverse. The respondent avers that the Judge failed to give appropriate weight to the public interest in light of the “precariousness” of the “claimed family life”.
2) The Judge’s finding that the refusal of entry to the UK “engaged” a right protected by Article 8 is inadequately reasoned.
3) The Judge erred by failing to properly assess, and to consider factors relevant to the assessment of, the nature and quality of the family life interfered with by the refusal of entry clearance.
4) The FtT erred by giving any or substantial weight to the appellants’ circumstances in Egypt and Gaza when considering whether Article 8 would be breached by refusing the appellants’ entry to the UK.
5) The FtT erred in considering the Article 8 ECHR rights of the appellants, rather than only considering the rights of their sponsor, given that the appellants reside outside the UK and have no or no sufficient connection to the UK.
12. Permission to appeal was refused by the FtT but granted by Upper Tribunal Judge Keith on 2 July 2025 in the following terms:
2. The ECO does not dispute the existence of family life. He says that the proportionality assessment of Article 8 is insufficiently explained, the weight attached by virtue of the sponsor’s limited leave to remain was erroneous, and the Judge failed to consider and apply Section 117B of the Nationality, Immigration and Asylum Act 2002 (ground (1); the Judge did not adequately explain why Article 8 was engaged, when the connection to the UK was tenuous (ground (2)); the Judge had failed to consider the sponsor’s ability to travel to Egypt regularly and to support her family (ground (3)); the Judge ought not to have placed weight on conditions in Egypt (ground (4)) and there was no extra-territorial jurisdiction to consider Article 8 and Al Hassan & Ors (Article 8; entry clearance; KF (Syria)) [2024] UKUT 00234 (IAC) was wrongly decided (ground (5)).
3. While the weight to be placed on a factor in a proportionality assessment is a matter for a Judge, absent an error because of perversity, and contrary to the grounds, the Judge’s reasons were sufficiently reasoned, it is at least arguable in relation to ground (1) that the Judge failed to make any assessment by reference to Section 117B of the 2002 Act. While the remainder of the grounds are weaker, as the Judge had specifically considered the sponsor’s visits and no issue appears to have been taken jurisdiction, as this is a challenge to a multi-factor assessment of proportionality, I do not limit the grant of permission. Permission is therefore granted on all grounds.
4. I have considered whether the appeals should be stayed pending the Court of Appeal’s consideration of IA & Ors v SSHD (CA-2025-000713). I have decided not on the basis that the question of whether family life exists is not disputed in this case, in contrast to IA.
Rule 24 response
13. The appellants filed a Rule 24 response on 12 August 2025. The matters raised in the Rule 24 response are expanded upon in the appellants’ updated skeleton argument and are addressed in our assessment of the grounds below where necessary to do so.
14. In summary, the Rule 24 response asserts that the FtT properly focused on the case of the parties before it and on the issues outstanding. The Judge properly noted the absence of any challenge to the engagement of Article 8 by the respondent, identified the public interest in effective immigrations controls as a “weighty” factor in the proportionality assessment, and directed herself correctly as to the exceptional circumstances required in light of the concession that the appellants could not meet the requirements of the Rules. The response asserts that the respondent now seeks to advance a case that is materially different from the one she advanced before the FtT. It is submitted at [10] of the response that:
Taken as a whole, [the respondents’] grounds consist in part of legal submissions which were unforeshadowed before the FtT, are unsupported by authority, and are wrong; and in part of a series reiterations of [the respondents'] case on the fact, and disagreements with the weight the FtT attached to matters on which [the respondent] relies. In reality, the FtT was plainly entitled to reach the conclusions it did for the reasons it gave.
15. The Rule 24 response refers to grounds 4 and 5 in particular as advancing “hard-edged legal submissions which were wholly unforeshadowed in [the respondent’s] case before the FtT” and which set out a case which is fundamentally different to that ran in the refusal decision, the review in the FtT, and in oral submissions at the FtT hearing.
16. In addition to setting out the appellants’ position in response to the grounds, the Rule 24 response asserts that the Judge should in any event have allowed the appellants’ appeal on the basis that the sponsor would be entitled to a grant of humanitarian protection under the terms of the Secretary of State’s policy on Gaza (Country Policy and Information Note Palestine: Humanitarian situation in Gaza Version 4.0 November 2024) and the appellants, as members of the sponsor’s pre-flight direct family, would then be entitled to family reunion as of right under Appendix Family Reunion (Sponsors with Protection) of the Immigration Rules, which was suspended on 4 September 2025 after the FtT decision.
Proceedings in the First-tier Tribunal
17. In light of the submissions in the Rule 24 response and appellants’ skeleton argument, that the respondent now seeks to advance a case which is fundamentally different to that before the FtT, it is relevant for us to examine the key documents from the proceedings in the FtT to identify the issues in dispute between the parties and the case advanced by them before the Judge.
18. We remind ourselves of the Upper Tribunal decision in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) (“Lata”) which states at [28]:
If follows that 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.
19. We also have considered the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal (“PD”) of 1 November 2024, in particular concerning the requirements of an appeal skeleton argument, the respondent’s review, and the substantive hearing and issues based approach.
20. At [11.1] the PD requires that the parties should come to the substantive hearing ready to “identify the disputed issues that the Tribunal is being asked to decide in the case”. At [11.4] the PD states:
The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision.
21. In relation to the respondent’s review in the FtT the PD provides, in so far as relevant, as follows:
The respondent must provide a review in accordance with rule 24A(3) of the Procedure Rules, within 14 days of receipt of the bundle and ASA or the appellant’s explanation of their case. The review must:
…
(c) explain whether the respondent agrees that the schedule of the disputed issues is correct and, if not, the correct list of disputed issues, including whether there are any further issues that the respondent wishes to raise;
(d) the respondent’s brief submissions on each of those issues including whether the respondent opposes or accepts the appellant’s position on each issue, with cross-referencing to paragraphs in the decision under appeal, pages in the respondent’s bundle, any country information evidence schedule, and/or any additional evidence relied upon;
…
Refusal decisions dated 22 August 2024
22. The three decisions in respect of the appellants are in virtually identical terms and state that the applications were considered under the Immigration Rules and that consideration was also given to whether leave should be granted “Outside of the Rules”. The refusal decisions will be referred to in the singular. The decision states:
Although Article 8 is a universal right it is also a qualified one and must be considered and weighed against the public interest, including the interests of national security, public safety, and the economic well-being of the country.
23. The decision examines the circumstances set out by the appellants. Whilst acknowledging the psychological trauma faced by the appellants in Gaza, the decision-maker refers to the fact the appellants are now in a safe country and that the sponsor can travel freely to visit the appellants in Egypt and can communicate with them freely. The decision acknowledges that the appellants entered Egypt with time-limited leave but states that Egypt is not deporting people to Gaza at this time and is a signatory to the 1951 Refugee Convention, although the appellants have not attempted to seek protection from the Egyptian authorities.
24. The decision acknowledges the appellants’ difficult living conditions but states that the appellants have access to suitable housing, they are living with wider family who can provide support to the minor appellants, and they have food and clean water. The appellants will be able to seek medical treatment if they attain proper status in Egypt and the first appellant’s need for a hernia operation is not a medical concern of sufficient severity to justify entry to the UK.
25. Having examined the appellants’ circumstances in Egypt, including the best interests of the children, the decision-maker concludes that refusing the applications would not give rise to unjustifiably harsh consequences and are not sufficiently compelling or exceptional to warrant a grant of leave outside the Immigration Rules, bearing in mind the public interest in proportionate immigration control and maintaining the integrity of the Immigration Rules.
Appellants’ appeal skeleton argument (“ASA”) of 12 November 2024
26. The ASA identifies two issues in dispute:
1) Whether Article 8 ECHR is engaged and the decision constitutes an interference with it?
2) Whether the refusal is in breach of Article 8 as amounting to a disproportionate interference with the appellants’ and sponsor’s rights, and considering the best interests of the minor children?
27. The ASA submits that there is plainly family life between the appellants and sponsor such as to engage Article 8. Family life was subsisting between the appellant and the sponsor prior to the sponsor leaving Gaza, and has been maintained since then with visits by the sponsor, calls and financial support.
28. Referring to the intensely-fact sensitive approach to be adopted in line with Singh v Secretary of State for the Home Department [2015] EWCA Civ 630, the ASA sets out the appellants’ and sponsor’s current circumstances and submits that it would be unduly harsh and disproportionate to refuse the appeal.
29. The ASA sets out the current situation in Gaza and why family life cannot continue there and the fact the appellants are currently overstayers in Egypt without access to education, healthcare, employment or any state services. Relying on the country expert evidence of Alison Pargeter, reference is made to the possibility of overstayers facing a fine, arrest or deportation, and that it would be very difficult for the first appellant to regularise his legal status in Egypt.
30. It is contended that the exclusion of the minor appellants from the UK is not consistent with their best interests.
31. Addressing the sponsor’s circumstances, it is submitted that she recently started a PhD at University and cannot relocate to Egypt for the duration of this course and that the sponsor’s private life rights would be breached were she expected to relocate to Egypt.
32. In relation to proportionality, the ASA asserts that it is for the respondent to demonstrate that interference with family life is justified and that in this case the respondent is under a positive obligation to grant family reunion outside the Rules.
33. Addressing section 117B Nationality, Immigration and Asylum Act 2002, the ASA refers to there being no adverse immigration history and that permitting the appellants to enter would be an exercise of, and consistent with, effective immigration control and it would not be detrimental to its maintenance. It is averred that the first appellant is proficient in English, has a university degree, that the sponsor is well-placed to ensure her family are able to speak English as she is a qualified ESOL teacher, and the sponsor can financially support and adequately accommodate her family in the UK.
34. The appellants filed a supplementary skeleton argument on 28 January 2025 addressing updating evidence from Alison Pargeter, further updating country evidence in relation to Egypt and Gaza, and addressing the sponsor’s visit to the appellants in Egypt in December 2024.
Respondent’s review of 9 December 2024 (“the review”)
35. The respondent’s review in response to the ASA states:
7. Whilst the R accepts that Article 8 is engaged between the As and sponsor, it is maintained that the refusal decision is proportionate and will not result in unjustifiably harsh consequences to the As or sponsor.
36. The remainder of the document addresses the issue of proportionality and whether the refusal gives rise to unjustifiably harsh consequences for the appellants and/or their sponsor.
37. The respondent refers to the sponsor’s application for leave to remain as a student and submits that because the sponsor “has always been in the UK studying, there could have been no intention of the family living together during this time” and contends that the sponsor made the decision to leave her family in furtherance of her studies. The respondent submits that it is open for the sponsor to complete her studies and then return to live with the appellants in Gaza, or another country if this is not possible.
38. In the review the respondent maintains that a breach of Article 8 would only arise if the proposed entry clearance will add significantly to how the family relationships are currently maintained and refers to the fact the appellants and sponsor have maintained their relationship for a number of years without the appellants having entry clearance. On this basis the respondent asserts that the refusal decision is not an interference with the A’s and sponsor’s relationship in its current form.
39. The review acknowledges the current situation in Gaza and the appellant’s evidence concerning conditions for them in Egypt but refers to evidence from Alison Pargeter that the Egyptian authorities are not deporting people back to Gaza at this time. The review states that the appellants are in a safe country with access to basic needs including food and water, and secure channels of communication to keep in contact with the sponsor. Further, the sponsor can visit the appellants as she has done previously and can continue to support the appellants financially, enabling access to private healthcare if required.
40. The review states that section 55 of the Borders, Citizenship, and Immigration Act 2009 has been taken into account and acknowledges that the best interests of the children are a primary consideration, but they are not the only consideration, and the best interests of the children cannot on its own warrant a grant of leave outside the Rules. The respondent placed limited weight on the Social Work Assessment Report because the author did not hear the children’s wishes directly and the review notes that the report indicates that the children’s basic needs are currently being met.
41. In relation to section 117B NIAA the respondent refers only to the public interest in the effective immigration controls.
Procedural history in the Upper Tribunal
42. The error of law hearing was listed before a Presidential panel for 15 and 16 October 2025. However, by the time of that hearing, the Court of Appeal hearing in CA-2025 000713: Secretary of State for the Home Department (“SSHD”) v IA & Ors (“IA”) had been brought forward to be heard on 4 and 5 November 2025. Having considered the grounds of appeal in IA and the proximity of the Court of Appeal hearing in IA, the UT decided, in accordance with the Overriding Objective, to stay the proceedings in this appeal pending the handing down of the Court of Appeal decision in IA. It was considered that if the SSSHD was successful on her grounds before the Court of Appeal in IA, it was likely to have a critical impact on the similar grounds raised in this appeal.
43. The Court of Appeal handed down judgment in IA on 26 November 2025 and the error of law hearing in this appeal was re-listed for 4 February 2026.
The Court of Appeal decision in IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516
44. This case concerned the appeal by the SSHD against the decision of the UT allowing the appeal of a family of six in Gaza, who appealed the refusal of entry clearance applications to join the brother of the father in the claimant family.
45. At this juncture we merely set out the summary of the Court of Appeal’s conclusion on the three grounds of appeal in IA. We refer below to further relevant passages from the Court’s judgment in our analysis of the grounds in this appeal.
46. In relation to the grounds pursued by the Secretary of State in IA these were summarised at [5] of the judgment as follows:
The Secretary of State for the Home Department (the SSHD) is appealing the UT’s decisions as to the existence of family life and its conclusions on the proportionality balance under article 8(2). The SSHD contended that: (a) on a proper understanding of the law as to the meaning of “family life”, the family and the sponsor did not enjoy family life under article 8(1), (b) even if such family life did exist, the UT was wrong at [166] to consider the free-standing article 8 rights of the family, rather than just those of the sponsor, in undertaking the proportionality balance required by article 8(2), and (c) the UT gave the wrong weight to the risks to the lives of the family and their dire situation in the Gaza warzone, and gave the wrong weight to the importance of UK immigration control and the short-lived family life that had existed in this case.
47. In summarising the Court’s conclusion on these grounds, the judgment states:
9. We have decided that the SSHD’s appeal should be allowed on grounds 1 and 3 and in part on ground 2. Our reasons can be summarised briefly here.
10. First, the consistent jurisprudence of the European Court of Human Rights (the ECtHR) has been that “family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties”” (see Kumari v. The Netherlands 44051/20, 10 December 2024 (Kumari) at [35], and Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 (Beoku-Betts) at [39]). The FTT did not apply that test, but instead asked itself whether the sponsor had provided “real, effective or committed support” to his brother and the family (see [18] and [25] of the FTT decision). The real, effective or committed support test is lower than the additional elements of dependence test. Applying the proper test, neither the brother nor his family had shown that they had family life with the sponsor for the purposes of article 8(1).
11. Secondly, if there had been family life between the sponsor and his family (as found by the FTT), it would have been appropriate to have regard to the unitary nature of that family life (see Beoku-Betts at [4], [20] and [41]-[43]). We accept, however, that, in undertaking the proportionality balance under article 8(2), the court is looking primarily at the article 8 rights of those persons within the jurisdiction of article 1 of the ECtHR (in this case, the sponsor).
12. Thirdly, we have concluded that the UT made several errors in undertaking the proportionality balance under article 8(2). Even if, contrary to what we have decided, family life had existed between the sponsor and the family, the balance should not have been determined in favour of granting the family entry clearance. Very exceptional or compelling circumstances had not been shown. The UT was wrong to pay so little regard to the immigration control policies of the SSHD and the UK Government, as reflected in the Rules, as expressing what was necessary in the interests of the economic well-being of the UK and for the protection of the rights of the citizens of the UK. The UT wrongly over-stated the importance of the family’s short-lived family life with the sponsor (had it existed at all), the best interests of the children of the family and the admittedly serious risks faced by the family in Gaza.
48. The relevance of the judgment in IA in relation to this appeal is in respect of the second and third grounds before the Court of Appeal.
Error of law hearing
49. The parties provided detailed updated skeleton arguments in advance of the hearing, and we heard detailed submissions from both Mr Biggs and Mr Chirico at the hearing. We are grateful for the representatives’ most helpful written and oral submissions. We will not rehearse the content of the oral and written arguments here, but in our analysis of the grounds of appeal, where necessary to do so.
50. Mr Biggs advised us that the respondent no longer pursued ground 5.
51. The appellants’ skeleton raises an objection to the submissions made at [32] to [35] of the respondent’s updated skeleton argument in relation to ground 4, on the basis that these amount to new matters which were not previously raised in the respondent’s grounds of appeal, or the skeleton argument served prior to the hearing in October 2025, and were not raised below in the FtT.
52. The respondent had not applied to amend her grounds of appeal prior to the hearing. Mr Biggs made an application to amend the grounds at the hearing, and we indicated that we would permit Mr Biggs to argue the ground de benne esse and we would make a decision on whether to grant permission to amend ground 4 after the hearing. We also indicated that we would hear arguments and any evidence in relation to remaking the decision to enable us to remake it without further hearing, in the event that we found the FtT decision was vitiated by an error of law.
53. Having carefully considered the respondent’s application to amend the grounds of appeal we refuse the application. No adequate reason was provided for the delay in making the application. In terms of delay, we remind ourselves that the original grounds of appeal were filed with the FtT in March 2025. The renewed application for permission on the same grounds was submitted to the UT on 2 June 2025. We take into account to the importance of procedural rigour, especially so in view of the delay in the substantive consideration of this appeal due to the stay of proceedings ordered on 16 October 2025. The decision ordering the stay clearly indicated at [20] that the appeal warrants expedition. The UT and appellants could have fairly expected that any application for permission to amend would have been made at the latest when the respondent was required to provide her position statement following the handing-down of the Court of Appeal decision in IA on 26 November 2025. Following an extension of time requested by the respondent, the position statement was filed with the UT on 15 December 2025.
54. We are not persuaded that the matters the respondent now seeks to argue in the reformulated ground 4 arise from any change or statement of law from the judgment in IA. Whilst the Court of Appeal considered matters on weight in the proportionality assessment conducted by the UT, it did not clarify the law relating to the best interests of the child or the weight accorded to it.
55. We acknowledge that there would be no or little prejudice to the appellants if we granted permission to amend. They were on notice that the respondent sought to argue these matters from the respondent’s skeleton filed on 14 January 2026. However, due to the late application and the absence of a good reason for the delay, we refuse permission to amend. In case we are wrong to refuse permission, we have considered the substance of the new ground 4 below.
Analysis
56. We remind ourselves that restraint should be exercised when examining the reasons given by the FtT Judge for her decision. There are several authorities on the point, but we particularly have in mind what Lord Hamblen said in HA (Iraq) v SSHD [2022] UKSC 22, at [72] that:
It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
i. They alone are the Judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
ii. 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 – see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
iii. 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 – see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.
57. We also keep in mind, throughout our consideration of the decision and grounds, the guidance on decisions and reasons provided to Judges of the FtT by the Practice Directions (“PD”).
58. The PD of the Immigration and Asylum Chamber of the First-tier Tribunal of 1 November 2024 provides, in so far as relevant, as follows:
15.1. This section is to be read in conjunction with the Practice Direction on Reasons for Decisions which applies in general to the First-tier Tribunal.
15.2. In the giving of reasons, as always in the conduct of Tribunals business, judicial time should only be spent on tasks that are essential to achieving the efficient and effective administration of justice. Written reasons should only be provided where they are expressly required by the Procedure Rules or where the interests of justice otherwise compel written reasons being given, and, in every case where they are required, only to the extent and in the terms necessary to dispose justly of the matter in hand. Any practice of routinely providing written reasons that do not need to be provided fails to make full and effective use of judicial time, which is a precious resource in the justice system.
…
15.4. Where written reasons are given, they must be concise and focused upon the disputed issues on which the outcome of the case has turned.
15.5. The reasons provided for any decision should be proportionate to the significance and complexity of the disputed issues that have to be decided. Reasons need refer only to the issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved. It follows that the Tribunal need not identify all of the evidence relied upon in reaching its findings of fact, or elaborate at length its conclusions on any issue of law.
15.6. Stating reasons at greater length than is necessary is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate Court or Tribunal, and is therefore inconsistent with the Overriding Objective. In some cases, succinct paragraphs containing the necessary self-directions and addressing the disputed issues will suffice. For a procedural decision the reasons required will usually be shorter still.
15.7. When determining permission to appeal applications the Tribunal must take account that it is important to exercise appropriate restraint when considering a challenge based on the adequacy of reasons. Case law emphasises the importance of a realistic and reasonably benevolent approach – decisions under appeal must be read fairly and not hypercritically. Expert Tribunals should be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear that they have failed to do so. It should not be assumed that a Tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision.
59. The PD of the Senior President of Tribunals: Reasons for decisions of 4 June 2024 provides, in so far as relevant, as follows:
5. Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.
6. Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved.
7. Stating reasons at any greater length than is necessary in the particular case is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate court or tribunal, and is therefore inconsistent with the overriding objective. Providing concise reasons is to be encouraged. Adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice. For a procedural decision the reasons required will usually be shorter.
8. Judges and members in the First-tier Tribunal should expect that the Upper Tribunal will approach its own decisions on appeal in accordance with the well settled principle that appellate tribunals exercise appropriate restraint when considering a challenge to a decision based on the adequacy of reasons. As the Court of Appeal has emphasised, a realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically.
9. As an expert tribunal, the First-tier Tribunal will generally be taken to be aware of the relevant authorities within the jurisdiction being exercised, and to be applying those cases without the need to refer to them specifically, unless it is clear from the language of the decision that they have failed to do so. The Upper Tribunal will not readily assume that a tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision. Thus, a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.
The proportionality assessment (Ground 1 and amended Ground 4)
60. In relation to ground 1, it is argued that the FtT failed to properly identify the strong public interest supporting the respondent’s decision and the weakness of the sponsor’s particular family life in the United Kingdom, and failed to adequately factor these matters into its assessment of proportionality. There are a number of distinct submissions in the grounds and Mr Biggs’ skeleton in relation to the Judge’s proportionality assessment. We will endeavour to address each in turn but take into account the general proposition underlying this ground of challenge, that the Judge erred in her assessment of proportionality.
Weight attached to the public interest
61. The first submission in support of ground 1 is that the Judge failed to adequately identify and fully appreciate the significant weight to attach, at a general level, to the UK’s immigration policy as reflected in the Immigration Rules in a case where the appellants are unable to satisfy the Rules.
62. Mr Biggs accepted that the Judge records in the decision, at the outset and when summarising her conclusions regarding “compelling and compassionate circumstances, over and above the rules”, that the appellants do not satisfy the Rules. However, Mr Biggs submits this was not enough and that it is not apparent from the substance of the Judge’s reasoning that she properly appreciated the weight to attach to the public interest. He submitted that the Judge’s self-direction referring to the “weighty public interest” was insufficient.
63. In support of his submissions Mr Biggs’ referred us to Arshad v SSHD [2025] EWCA 355 and the Court of Appeal judgment in IA at [162] and [166]. We return to these cases below.
64. In response to Mr Biggs, Mr Chirico submitted that whilst reviewing the FtT decision, it was necessary to consider the context of the appellants’ circumstances and entry clearance application, what the Judge knew about what was in dispute between the parties and the actual “pleadings” before the FtT. It was, he submitted, clear and obvious to the Judge that the appeal concerned an entry clearance application made outside of the Immigration Rules by members of the sponsor’s core family to join her in the UK. Insofar as there were matters where it was “completely obvious” they were not disputed, the FtT, as an expert tribunal, did not need to expressly state these matters in the decision, and did not need to make findings on matters which were not disputed. In Mr Chirico’s submission, the Judge’s assessment and findings must be viewed in this context.
65. In Mr Chiroco’s submission, it is apparent from the beginning to the end of the decision that the Judge is aware that the public interest is a weighty consideration throughout. It was obvious to the Judge that the appellants had to establish something compelling in order to outweigh the strength of the public interest. There was nothing more that the Judge was required to say and no “magic wording” that the Judge should have adopted. It was submitted that the FtT was plainly aware of the fact the appellants do not meet the requirements of the Immigration Rules, of the fact the sponsor has limited leave to remain in the UK, and of the weight to be attached to the public interest in circumstances where the Rules are not met. Further, that the very rationale behind the need to show “exceptional” or “compelling” circumstances is the need to show something particularly weighty to outweigh the interest in immigration control where an application falls outside the Rules
66. We accept that there is no ‘magic wording’ required for the Judge to direct herself regarding the weight of the public interest, although in our view it is a matter which could have been expressed in the decision with greater clarity and force. However, we remind ourselves that it was always the appellants’ case they did not meet the Rules (owing to the sponsor’s choice not to claim Humanitarian Protection) but that there were exceptional or compelling circumstances which outweighed the public interest. This is clear from the letter accompanying the appellants’ entry clearance applications (HB/347), the appeal skeleton argument, and is also reflected in the respondent’s review (HB/1067). In this context, the Judge’s entire focus was on whether the appellants’ circumstances were sufficient to outweigh the public interest. On this basis, and having regard to the decision itself, we accept that the Judge had the public interest in mind from the beginning to end of her analysis. The decision refers to the appellants’ inability to meet the Rules at [7], at the outset of the section setting out the Judge’s findings and conclusions, and returns to this at [17] when concluding on the balancing exercise. At [10] the Judge directs herself on the “weighty public interest” and the need for the appellants to demonstrate “exceptional circumstances” and that refusal would result in “unjustifiably harsh consequences”.
67. We note that the wording adopted by the Judge in referring to the “weighty” public interest, mirrors that used by the respondent in her review dated 9 December 2024, which states at [19] “The As do not satisfy the Immigration Rules, which is a weighty factor in the proportionality assessment.” There is no reason for us to consider that the Judge attached a different meaning to the use of this term, than that intended by the respondent herself; that it is a matter of considerable weight.
68. We have carefully considered the judgement of the Court of Appeal in IA and in particular the passages we were referred to at the hearing. In relation to his submission on the Judge’s treatment of the public interest Mr Biggs’ referred us [166] which states:
In our judgment, the UT, despite saying at [147] that it was placing considerable weight on the fact that the Rules were a statement of the SSHD’s policy reflecting the public interest in maintaining effective immigration control, failed to do so. In this area too, the UT’s close focus on the effect that the war was having on the family wrongly distorted the article 8(2) balance in the family’s favour. Again, the words of article 8(2) were not given their proper effect. As we have said, article 8(2) does not prohibit interference by a public authority with the exercise of the right to family life, if that interference is “in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country … or for the protection of the rights and freedoms of others”. Immigration control is to be assumed in this respect, and in the view of the SSHD, to be in the public interest and protective of the economic well-being of the country. The UT gave the wrong weight to the SSHD’s policies as reflected in the Rules, which did not allow families from this war zone to join family members settled in the UK.
69. We remind ourselves that the Judge did not have the benefit of the guidance from IA to which Mr Biggs referred us. However, the Court of Appeal did not alter the previous position regarding the weight to attach to a failure to satisfy the Immigration Rules. The Rules are a statement of the Secretary of State’s (“SSHD”) policy reflecting the public interest in maintaining effective immigration control. As stated at [167] of IA, “The courts must, as Lord Reed said in Agyarko, and we would respectfully endorse, attach considerable weight to the SSHD’s immigration policies at a general level, alongside considering all the factors which are relevant to the particular case”. This is a well-settled principle. The Court found at [168] that the UT “could only, in effect, override those policies in very exceptional or compelling circumstances”.
70. In particular focus in IA was the absence of a resettlement scheme for residents of Gaza akin to that which had been introduced in relation to Ukraine. In relation to the UT’s treatment of this issue, the Court found at [166] that “The UT gave the wrong weight to the SSHD’s policies as reflected in the Rules, which did not allow families from this war zone to join family members settled in the UK.”
71. In Mr Chirico’s submission it was “crucial” to have in mind the key points of distinction between the circumstances of the appellants and those of the claimants in IA, when considering the passages in IA to which Mr Biggs refers and other obiter but persuasive findings on ground 2 (territoriality in Article 8 claims) and ground 3 (proportionality) in IA.
72. In contrast to the appellants in this appeal who share an undisputed ‘core family life’ with their sponsor, in IA the family in Gaza had not cohabited with their sponsor, who had not seen his claimant brother for seventeen years, and the relationship was short-lived and only developed after the start of the war in Gaza, “rekindled in the knowledge that the family had no right to enter the UK” (IA at [151]). In the absence of entry clearance, the claimants would remain together in Gaza as a family unit comprising a father, mother and four children. The Court of Appeal found that the UT had wrongly over-stated the importance of the “short-lived”, “recently revived” family life which was “contingent” on obtaining entry clearance. In the examination of the best interests of the children and the family’s risk of death in Gaza, and the UT’s assessment of the weight attached the claimants’ “family life” in the proportionality assessment, the Court of Appeal found at [157] that “The UT’s decision is replete with references to the dire situation faced by the family and the children as a result of the war in Gaza”.
73. Mr Chirico’s characterised the Court’s decision in IA as essentially finding that where there is no relevant resettlement scheme, you cannot “sneak” children from a warzone into the UK using an Article 8 argument. In his submission, the circumstances of the appellants in this appeal are very different. This was an application by the husband and two young children of a sponsor currently in the UK in order to resume a pre-existing genuine and close family life. Family life had been established in Gaza where the sponsor had been the children’s primary carer. The intention when the sponsor took up her scholarship was only to come to the UK for the duration of a one year course. However, the family has now been separated since September 2022, due to events outside of their control arising from the events in Gaza which arose two weeks before the sponsor’s intended return home on 29 October 2023.
74. The Court of Appeal found that despite saying it placed considerable weight on the public interest, the UT had failed to do so, and the UT’s focus on the effect the war was having on the claimants wrongly distorted the proportionality assessment in the family’s favour. We accept that the wording used by the UT in IA in identifying the weight to attach to the public interest was more strident than that used by the Judge in this appeal. However, for the reasons already mentioned and those we come to below, we do not find from either the wording adopted or the substance of the Judge’s reasoning, any indication that the Judge did not appreciate the weight she was required to attach to the public interest. We remind ourselves that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. Although the Judge could have done more, taking into account the narrow disputed matters in this appeal apparent from the ‘pleadings’, and the drive for a concise approach to decision-writing in the FtT focused on the principal disputed issues, we find that the Judge did enough. This conclusion should also be considered in the light of our assessment of the further grounds advanced by the respondent relating to the proportionality assessment, as discussed below.
Precariousness
75. The issue of precariousness was raised in the grounds in relation to the asserted precariousness of the appellants’ family life and the precariousness of the sponsor’s immigration status in the UK.
76. In the grounds of appeal, the respondent asserts that the FtT failed to appreciate that the appellants’ family life was “(extremely) precarious”, and to properly factor this into the assessment of proportionality insofar as this factor goes to both the weakness of the relevant family life and the weight of the public interest. In Mr Biggs’ submission the precarious nature of the family life arises as a result of the sponsor’s precarious status in the UK; that the sponsor chose to be in the UK and maintain family life with her husband and children across borders, and her family could have no legitimate expectation that they could continue to develop family life with the sponsor whilst she remained in the UK. Furthermore, Mr Biggs submitted that the sponsor could chose to move to Egypt in order to resume family life.
77. With reference to Lata, our initial observations are that the respondent had never advanced a case in the FtT that the sponsor could chose to move to Egypt to be with her family. This was therefore not a matter for the Judge to determine and there can be no error of law in not taking this matter into account. A consideration of the evidence before the Judge, including expert country evidence, demonstrate that this is not a serious proposition. It has not been suggested in these proceedings or in the FtT that the sponsor and her family should return to Gaza to resume family life.
78. A further observation we make at this stage is our view that Mr Biggs has mischaracterised the sponsor’s continued residence in the United Kingdom in relation to his submission that the sponsor has chosen to enjoy family life across borders. The undisputed evidence of the sponsor is that she came to the UK in the autumn of 2022 to study for one academic year having received a scholarship for an MA Degree. It was intended as a temporary venture for a defined time and purpose. She made trips home to Gaza during this period in January and May 2023. We accept that the sponsor’s initial decision to come to UK was a matter of choice. However, her continued separation from her family since October 2023 due to the intervention of war was not. The sponsor had booked her flight to return home permanently for 29 October 2023. Had the conflict in Gaza not arisen just a few weeks earlier, the sponsor would have been reunited with her family there. However, the sponsor has now been separated from her husband and young children for three and a half years. For the period since October 2023, we reject the characterisation of the sponsor’s continued separation from her family as a matter of choice.
79. Instead of claiming humanitarian protection after the conflict in Gaza arose, the sponsor applied for Graduate Leave to Remain on 20 December 2023, which was granted until 10 January 2026, since when she embarked on a PhD and was granted Study Leave to Remain on 16 September 2024 which is valid until 30 May 2029.
80. The respondent refers to the sponsor’s immigration history in her review. The point made in the review in this regard is that the sponsor chose to leave her family. There is, however, no direct submission in the review that the sponsor’s precarious immigration status weighs against the appellants in the proportionality assessment. Following questions from the panel, Mr Biggs accepted that section 117B(5) of the Nationality, Immigration and Asylum Act 2002 is not relevant because the application was not made by the sponsor and the FtT decision is based on family life rather than the sponsor’s private life.
81. We accept that the sponsor’s status in the UK is a relevant matter in the overall individualised assessment of the appellants’ circumstances. Indeed, the only reason why the appellants were unable to meet the Rules (Appendix Family Reunion) was because of the sponsor’s status, due to the sponsor having chosen not to apply for humanitarian protection (in the hope of returning home to Gaza). This being the case, even if the sponsor’s immigration status had not been directly referred to in the decision, it must have been factored into the proportionality assessment due to the recognition that the appellants do not meet the Rules. In any event, at [11] of the decision, the paragraph immediately following the Judge indicating that she adopts the balance sheet approach, the Judge refers to the sponsor’s immigration status in the UK. Although the Judge does not use the word ‘precarious’, we note that was not a word used in the ‘pleadings’ before her. We find that it cannot be said the Judge was unaware the sponsor was not settled in the UK as this was the very reason why the appellants could not meet the Rules. Furthermore, we infer from the Judge’s findings at [11] that this was part of her proportionality assessment and appropriately weighed, particularly in view of the absence of submissions before her on this matter.
82. The submission regarding the precariousness or tenuousness of the relevant family life was also a point not raised in the refusal decision or the respondent’s review and the FtT cannot be found to have erred in failing to consider a matter which was never raised. The Judge engaged with the case that was presented to her. In relation to this submission, as well as others, we find that the respondent is seeking to reargue her case on a different basis to that she previously advanced. However, we have engaged with this point to demonstrate its inapplicability to the facts of this case.
83. Whilst the authorities relied upon by Mr Biggs make mention of precariousness in relation to family life, we find that none of them provide support for Mr Biggs’ submissions in the circumstances of this case that involves pre-existing family life. Rather the circumstances considered in the cases Mr Biggs relies upon involve family life created or developed whilst a claimant had precarious immigration status. In relation to Arshad, the case involved a claimant who was a long-term overstayer and had developed (with his sister) and created (with her children) family life in the UK whilst he was here unlawfully. One of the passages Mr Biggs referred to underscores the difference between Mr Arshad’s family life and that of these appellants. At [19] of the judgment it states:
First, the F-tT categorised Mr Arshad’s relationship with his sister and her three children as ‘family life’. The UT did not disagree with that classification. There is, however, a range of different types of relationship which may amount to ‘family life’. This, it seems to me, is what the Secretary of State was hinting at in her first ground of appeal to the UT. The family life of parents who live together with their young children is at the core of family life. It is, self-evidently, entitled to greater weight in any proportionality balance than more distant relationships, such as the relationships between adult siblings who have spent periods of their adult lives in separate households, and the relationships between a resident uncle and young children who have both parents living at home. The fact, therefore, that a fact-finder has classified a relationship or relationships as ‘family life’ for the purposes of article 8 is only a starting point. It is necessary to understand the nature and quality of the relationship before it can be weighed against other considerations.
84. In reliance on Arshad (supra) and the decision of the Grand Chamber of the ECtHR in MA v Denmark (6697/18) July 2021, Mr Biggs submits that the Judge failed to take into account a “mandatory consideration” in respect of the precariousness of family life. He referred us in particular to [134(ii)] of MA.
85. The respondent did not rely on MA in her case before the FtT. There was just a brief reference to [145] of MA in the appellants’ skeleton argument. Although Mr Biggs accepts that the respondent had not relied on MA in the FtT, in his submission, the FtT, as a specialist tribunal, was required to consider this “mandatory factor”, whether it had been raised or not. In reply, Mr Chirco submitted that there does not exist a separate precariousness principle in the manner argued by the respondent, that there is no authority for this and it was not brought to the FtT’s attention. In Mr Chirico’s submission MA does not establish some mandatory, hard-edged principle which the Judge failed to take into account. In his submission, to the extent that [134] to [135] of MA contain important guidance which the respondent considered to be directly relevant to this case, she had the opportunity to identify and make submissions about it in her decision, review, and submissions before the FtT. She did not. We find there is force in Mr Chirico’s submission that the Judge did not err in failing to take into account guidance that she was not referred to.
86. In any event, had the Judge been referred to MA at the hearing and considered the guidance on which the respondent now relies, we are not persuaded that the Judge would have reached a different conclusion having regard to the full guidance in MA and the circumstances of the appellants.
87. MA concerned the refusal of the Danish authorities to grant the applicant’s wife a residence permit in Denmark based on family reunification. The applicant was a Syrian national who, at the time, had been granted temporary protection in Denmark for a 12 month period. He made the application which was the subject of the decision after he had resided in the Denmark for just five months. He subsequently made a successful family reunification application after he had resided there for two years and ten months. The Court found that the refusal of family reunification whilst the applicant had temporary protection, and the requirement that he should wait for a three year period, amounted to a violation of the applicant’s Article 8 right to family life.
88. Reflecting on principles from the Strasburg jurisprudence, at [134] to [135], the Court set out some broad principles; factors which have previously weighed against an applicant in an Article 8 assessment, and those that have weighed in their favour. In relation to circumstances where the Court had previously been reluctant to find there was a positive obligation to grant family reunification, at [134] the Court identified the presence of one or several of the following factors (which we summarise): (i) where family life was created when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious; (ii) The person requesting family reunification had limited ties to the host country, which by implication was usually the case, when he or she had only stayed there for a short time, or stayed there illegally; (iii) there were no insurmountable obstacles in the way of the family living in the country of origin; and, (iv) the sponsor could not demonstrate that he or she had sufficient independent and lasting income, other than welfare benefits, to provide for the basic cost of subsistence of his or her family members.
89. At [135] the Court identified circumstances where it had generally been prepared to find that there was a positive obligation on a state to grant family reunification including: (i) the person requesting family reunification had achieved settled status in the host country or had strong ties with that country; (ii) family life had already been created; (iii) both the person requesting family reunification and the family member concerned were already staying in the host country; and, (iv) children were involved, “since their interests must be afforded significant weight”.
90. Although we do not find that the Judge erred in failing to engage with the passages in MA that she was not referred to, had the Judge been referred to them it is not a given that she would consider the matters on which Mr Biggs relies as weighing against the appellants. The Court in MA found that the applicant’s Article 8 rights had been violated when he had just 12 months’ temporary protection. The sponsor has leave to remain until 20 May 2029 and has been studying and working in the UK since September 2022. On the basis of the extensive evidence before the FtT, we are not persuaded that the Judge would consider the sponsor to be a person with “limited ties” to the host country, or that her residence, although limited leave to remain, would necessarily be characterised as a “short-term residence or temporary residence permit” referred to at [134(ii)]. Other factors/circumstances considered at [134] and [135] of MA are likely to have been matters which would weigh in the appellants’ favour had they been considered.
91. Drawing together our conclusions thus far, we find that the decision indicates that the Judge was aware from the outset that the applications were made outside the Rules on account of the sponsor’s immigration status, and that these matters were appropriately considered in the balancing exercise in the Judge’s fact sensitive assessment, balancing the overall circumstances of the appellants’ and sponsor’s family life against a “weighty” public interest. We refer to refer Mobeen v SSHD [2021] EWCA Civ 886 at [67] which states:
The ADR ECR fall next for consideration. The FtT Judge’s failure to refer to these rules expressly may be understandable, given that the appellant had never applied for entry clearance under them. However, it is inconceivable that the (specialist) FtT Judge was unaware of the legal framework. He was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
92. The decision demonstrates that the Judge considered the sponsor’s immigration status in the balancing exercise. It was specifically referred to at the start of her “balance sheet approach” and the sponsor’s status was the very reason why the appellants were unable to satisfy the Rules which she considered a weighty factor. We are not persuaded that there is an additional precariousness matter which should have weighed against the appellants.
Section 117B Nationality, Immigration and Asylum Act 2002 (“NIAA”)
93. A further submission under ground 1 is that the Judge erred in failing to engage with relevant mandatory statutory factors under section 117B NIAA. We accept that a failure to consider a relevant statutory factor which should weigh against the appellants would amount to an error of law. In relation to this submission, the respondent’s skeleton argument refers to section 117B(1), (2), (3) and (5) as relevant.
94. For the reasons set out above, we find that the Judge did consider and properly engage with section 117B(1) regarding the public interest in the proportionality assessment. Mr Biggs fairly accepts that the Judge did not need to cite the statutory provision.
95. As previously stated, following questions from the panel, Mr Biggs accepted that section 117B(5) was not relevant.
96. In relation to subsections (2) and (3), Mr Chirico referred us to the ASA before the FtT (HB/347) which addresses section 117B at [32]. The ASA states, with references to supporting evidence in the FtT bundles, that the first appellant is university educated and proficient in English and that the sponsor is a qualified ESOL teacher and is extremely well-placed to ensure her family are able to speak English. We record, although it does not form part of our assessment, that the first appellant observed the UT proceedings (for over six hours of legal argument) without the aid of an interpreter. In relation to subsection (3), the ASA states that the appellant can adequately maintain and accommodate her family without recourse to public funds and refers to evidence of the sponsor’s two bedroom flat and her financial circumstances, including income from her academic scholarship, her employment as a college lecturer and at the University, and a grant from the British Council.
97. Although there was no direct concession of these submissions in the respondent’s review, which post-dates the ASA and makes specific reference to it, no challenge was raised in respect of these matters. The only reference to section 117B in the review can be found at [19] which merely states “The R makes reference to section 117B and Article 8(2) regarding the maintenance of effective immigration controls in the interest of the public and economic wellbeing. The As do not satisfy the Immigration Rules, which is a weighty factor in the proportionality assessment.”
98. There was no challenge in the FtT as to the first appellant’s ability to speak and understand English, or the experience and ability of the sponsor as a teacher of English as a foreign language to assist her children. We have considered whether the Judge should have factored into her assessment the fact that the minor appellants, who were nine years of age, do not speak English. We were referred to no authority which would indicate that this should weigh against the appellants pursuant to section 117B(2). We note that those under the age of 18 at the time of an application are exempt from the English language requirements under the Immigration Rules. This is apparent from the Rules themselves and the respondent’s guidance, Assessing the English language requirement, Version 12.0, 1 May 2025. In these circumstances, we are persuaded that this is not a matter which would weigh against the appellants and consequently the Judge did not materially err in failing to expressly address section 117B(2).
99. Regarding section 117B(3), it is apparent that the respondent raised no challenge before the FtT in relation to the sponsor’s financial circumstances for which there was ample evidence. Having considered the evidence before the FtT, we are satisfied that the appellants would be financially independent of the state and that this would be a neutral factor in the proportionality assessment. The Judge did not materially err in failing to expressly address this subsection; it would have made no difference. The Judge was entitled to approach the proportionality assessment on the basis that subsections (2) and (3) were not disputed by the respondent and were not relevant to the proportionality assessment because they were neutral factors applying Rhuppiah v SSHD [2018] UKSC 58.
100. A further new point raised for the first time before the Upper Tribunal, is the contention that the FtT did not address the potential need for the appellants to access NHS treatment. In Mr Bigg’s submission this matter must be taken into account in the assessment of financial independence for the purposes of section 117B(3). We refer, to Lata and find that we are not required to consider this point which is far from Robinson-obvious (R v SSHD, IAT ex parte Anthony Pillai Francis Robinson [1997] EWCA Civ 2089).
101. We were referred to no authority to show that financial dependency on the state is found where a person receives treatment on the NHS. If such treatment was a relevant consideration to financial independence, it is surprising that it was not mentioned in UT (Sri Lanka) [2019] EWCA Civ 1095 and Rhuppiah where the issue of financial independence for the purposes of section 117B(3) was discussed at length.
102. It would have been obviously unfair for the Judge to have taken the issue of whether the appellants would need NHS funded medical care into consideration under 117B(3) without the matter being raised as a disputed issue. Had this issue been of sufficient concern to the respondent to have been mentioned in the decision letter or her review, it could have been addressed with evidence and argument at the FtT hearing, with submissions made as to the potential availability of private health insurance or treatment from charities who support people such as the appellants.
103. Whilst it would have been preferable for the Judge to specifically reference to provisions in section 117B and to identify those matters which are neutral in the balancing exercise, we do not find that she made a material error of law in failing to do so.
‘Reformulated’ Ground 4 – whether the Judge gave too much weight to the appellants’ circumstances in Egypt and the children’s best interests.
104. Although we have refused permission for the respondent to amend her grounds of appeal at this very late stage, we address the matters raised by Mr Biggs in relation to the reformulated ground 4 in our assessment of the FtT proportionality assessment.
105. In Mr Biggs’ submission the Judge committed the same error as the UT in IA by placing too much weight on the appellants’ difficult circumstances in Egypt and gave “dispositive” weight to the children’s best interests. This is a submission which has been ‘transposed’ from the Court of Appeal judgment in IA in which, at [161], the Court found that the UT was wrong to accord the weight it did to the risks the family faced in Gaza and to the best interests of the children in the family.
106. As previously stated, we find there are no parallels to be drawn between the circumstances of the claimants in IA and the appellants’ case and their family life with the sponsor. In IA the Court of Appeal criticised the weight the UT attached to the claimants’ grave circumstances and what they had to endure living in a warzone in Gaza, and the best interests of the children in question in leaving that warzone. In so doing, the Court found that the UT failed to give effect to the SSHD’s immigration policy which did not include a resettlement policy concerning Gaza and only paid “lip-service” to the exceptional circumstances required in these circumstances.
107. The focus of the best interests of the minor appellants in this appeal is entirely different. Although the appellants were in Gaza for six months during the conflict before they managed to gain entry to Egypt, they are no longer in a warzone. This case is not about the risks to the children in a warzone and an attempt to escape those risks. That the appellants are living in difficult circumstances is unquestionable, but the reason for seeking entry clearance is for reunification with the sponsor, their wife and mother. It is not to use Article 8 to effectively circumvent the absence of a resettlement scheme for Gazans. IA concerned the claimed family life between two adult siblings and the claimant brother’s family. The claimants’ family life with one another would continue without entry clearance to the UK. This appeal concerns core family life between a married couple and their two young children which was developed in Gaza long before the recent conflict, and the continued separation of members of that close family unit.
108. The appellants adduced extensive evidence in the FtT including numerous witness statements, an expert social work assessment report on the family, and a country expert’s reports on Gaza and Egypt. The credibility and reliability of the evidence adduced, and the expertise of the experts was not challenged by the respondent. The respondent’s review states that she placed limited weight on the social work report of Phil Spencer because the children were not interviewed and so the social worker did not hear the children’s wishes directly. At the time of writing the report the minor appellants were just eight years old and in the professional opinion of Mr Spencer it was not appropriate to conduct a remote interview with the children due to their young age. However, it is clear that the Judge fully accepted the evidence and attached weight to the experts’ reports.
109. The Judge found the experts reports to be “compelling and persuasive” and attached considerable weight to them. The decision includes key aspects of the experts’ reports and conclusions the Judge derived from them. The Judge found that the appellants’ separation from the sponsor is “having a detrimental impact on them” at [12], that the children are suffering from trauma and are unlikely to recover if they are kept apart from their mother (who had always been their primary carer) for much longer at [15], and that the visits by the sponsor are not sufficient to meet the needs of the children at [16]. Having accepted the expert evidence without qualification, what the Judge was not required to do was to rehearse the detail of the reports in the decision. We accept that the Judge effectively adopted the contents of the reports as her findings.
110. Amongst other things, the social work report provides evidence on: the emotional interdependence of the sponsor and first appellant; the genuine, close emotional interdependence between all family members; that video calls and occasional visits are insufficient to meet the twins’ needs for a relationship with their mother and the need to be physically present with both parents at their age; the children’s mental health has been significantly impacted by the separation from their mother and their experiences; both boys had returned to being incontinent which is associated with high levels of stress and trauma; at such a young age the separation from a parent is traumatic in itself and both children have been impacted by the extended separation from their mother; as the separation has become more long-term, the impact has become more pronounced; reunification is likely to lead to a recovery from the appellants; there are significant concerns regarding the first appellant’s mental health due to current circumstances which affects his parenting and therefore the children’s well-being; the continued separation from her family is having a significant negative impact on the sponsor who described feelings of anxiety, depression and guilt and suffering from insomnia.
111. The appellants’ case is that the continued separation of the family unit is detrimental to each member. Given the unitary nature of family life, particularly the core family of a married couple and their young children, it is unsurprising that the evidence of what the appellants have had to endure is significantly impacting the sponsor. The Judge’s focus on the appellants’ circumstances and the children’s best interest in the proportionality assessment must be seen in the context of the evidence before her, the pleadings in the FtT, and the legal test applicable in a case that does not meet the Rules. The Judge was required to consider whether there were exceptional or compelling circumstances such that the refusal would give rise to unjustifiably harsh consequences. Such an enquiry necessarily involves as assessment of the appellants’ current circumstances in Egypt. This was the respondent’s focus in the refusal decision and review, and was appropriately factored into the balance sheet exercise by the Judge when conducting a fact-sensitive assessment.
112. It is trite that, as a starting point, it is in the best interests of children to be with both their parents. Nothing in IA suggests a change to longstanding jurisprudence indicating this approach. The best interests of the children here very clearly favour reunification with their mother. We reject the submission that the Judge treated this factor as a “trump card” which was determinative of the appeal. Reading the decision as a whole, and having regard to the careful wording of Judge, it is apparent that this factor, although undoubtedly persuasive, was a factor that was given appropriate weight in the balancing exercise. At [17] and [19] of the decision the Judge refers to the interests of the minor appellants and the compelling and compassionate circumstances which “tip the balance” in favour of the appellants. We readily infer from this use of language that the Judge conducted a careful balancing exercise following a fact sensitive assessment. It was reasonably open to the Judge to attach the weight she did to the matters weighing in the appellants’ favour. The Judge answered the case put before her, on the basis of the evidence before her.
Ground 3 – whether the Judge erred in failing to assess the nature and quality of the relevant family life
113. In relation to this ground Mr Biggs submits that the Judge failed to assess, adequately or at all, the nature and quality of the relevant family life. In his submission, this matter is relevant to the FtT finding that Article 8 is engaged as well as the proportionality assessment.
114. It is not clear to us whether the submissions on this ground add anything to the submissions already addressed on the asserted tenuousness or precariousness of family life in relation to ground 1. In oral submissions Mr Biggs addressed this ground alongside ground 1.
115. It seems to us that the respondent’s case is that the FtT should have focussed on how family life was being conducted after the sponsor came to the UK in 2022 and to consider what it was that made family life, enjoyed in the way it had been post-September 2022, difficult to continue.
116. We have been referred to no relevant authority which supports this submission, and are not remotely persuaded that the Judge should have only focussed on the way in which family life was conducted after the sponsor came to the UK and somehow ignored the pre-existing family life enjoyed in Gaza before the sponsor decided to come to the UK for a temporary and defined period of study. We do not find any assistance for the respondent’s position from [142] of IA to which Mr Biggs referred. As discussed previously, the circumstances of the claimants in IA are different in key respects to the appellants in this appeal. The appellants’ family life was not created post-conflict and is not contingent upon obtaining entry clearance. The FtT had extensive evidence of how the continued separation of the family is impacting all family members including the sponsor, who is within the UK and the jurisdiction of Article 1 ECHR. The evidence indicates that the refusal decision undoubtedly interferes with the sponsor’s family life with the appellants.
117. We refer to our analysis and conclusions above in relation to grounds 1 and 4. The Judge was fully aware of the family’s current and previous family circumstances and why the sponsor had come to the UK. There was an adequate assessment of the family life relationships by reference to the detailed and accepted experts’ reports. There was no argument in the FtT that the sponsor should move to Egypt to resume family life.
Ground 2 – whether the Judge’s finding that refusal of entry clearance engaged a right protected by Article 8 is inadequately reasoned
118. We conclude with our analysis of ground 2. Some key aspects of the submissions on this ground have already been addressed above.
119. At [9] of the decision it states:
I find the decision interferes with the appellants’ Article 8 rights. I find the interference is of sufficient gravity as to potentially engage the operation of Article 8(1). However, I accept it was a decision that was lawfully open to the respondent to make and is in pursuit of the legitimate aim of effective immigration control, which promotes the economic well-being of the country.
120. Mr Biggs submits that the Judge failed to provide any, or any legally adequate, reasons for the conclusion that refusing entry clearance to the appellants engaged their rights to family life protected by Article 8.
121. In response, Mr Chirico submits that the respondent expressly conceded that Article 8 was engaged in her review at [7] and therefore the Judge was not required to give reasons for something that was not in issue before her. In his submission, contrary to the respondent’s position now before the UT, there was nothing unclear about the concession made in the review.
122. We accept there is some merit in Mr Biggs’ submission that the wording used at [7] of the review lacks absolute clarity. However, we are satisfied that the intention of the respondent was to concede this issue because the latter part of [7], after referring to Article 8 being engaged, immediately focuses on the proportionality question. In addition, the remainder of the review is predominantly, if not entirely, focussed on this issue.
123. We accept that the Judge was entitled to consider that engagement of Article 8 was not a disputed issue before her on the basis of the content of the respondent’s review. Furthermore, even if the respondent had not intended to concede the matter of whether Article 8 was engaged, the Judge’s reasons provided at [9] referring to an interference of “sufficient gravity” were adequate in the circumstances of this case.
124. Although we do not find the Judge to have erred in law in relation to the engagement issue, if there was any error in this regard, it would be, in our view, undoubtedly be immaterial. In a situation where young children and a spouse are seeking to reunite with their mother and partner to resume the extremely close relationship they previously enjoyed with one another (and where there was no intention at the time of separation of them not resuming that relationship), the interference with the family’s ability to develop these natural relationships (including between young children and their primary carer) is undoubtedly impeded by the refusal of entry clearance. The refusal of entry clearance means that the appellants and sponsor are limited to conducting their family life remotely and with occasional visits. The requirement for interference to engage Article 8(1) is that it is ‘real’, but it is not a high threshold (AG (Eritrea) v SSHD [2007] EWCA Civ 801. Consequently, we find that it was inevitable that the Judge would find that Article 8 was engaged even if the matter had not been conceded.
125. In relation to all of the grounds advanced by the respondent, for the reasons set out above, we conclude that there was no material error of law in the decision of the Judge.
126. The decision of the FtT allowing the appellants’ appeal on Article 8 human rights ground is confirmed.
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 decision of the First-tier Tribunal shall stand.


S. Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 February 2026