Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002526

First-tier Tribunal No: PA/01646/2024
PA/65898/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 November 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

BDS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Malik, instructed by Direct Access
For the Respondent: Mr K Ojo, Senior Presenting Officer

Heard at Field House on 4 November 2025

Order Regarding Anonymity

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

DECISION AND REASONS

Anonymity

1. The First-tier Tribunal ordered anonymity because the principal claim under consideration was for international protection. That claim having fallen away, I have considered whether anonymity remains necessary and proportionate. I have concluded that the presumption in favour of open justice is outweighed by the need to safeguard the appellant’s son, who has mental health problems. Whilst that concern does not extend to the appellant and her partner, there is a risk of “jigsaw identification” of the appellant’s son if either of them are identified publicly.

Introduction

2. The Upper Tribunal (UTJ Blundell and DUTJ Anthony) issued its first decision in this case on 27 August 2025. It concluded that the First-tier Tribunal had erred materially in law in allowing the appellant’s appeal on Article 8 ECHR grounds. It directed that the decision on the appeal would be remade following a further hearing. The hearing resumed before me on 4 November. This is my reserved decision following that hearing.

3. The appellant is a Brazilian national who was born on 23 October 1990. She entered the United Kingdom as a visitor on 8 December 2017. She overstayed at the end of that period and, in February 2019, she was joined by her son, R. He is also a Brazilian national. He was born on 28 September 2007, so he was eleven years old when he arrived in the United Kingdom.

4. On 15 October 2021, the appellant claimed asylum in the United Kingdom. Her son was dependent on her claim. She stated that she was in fear of a gang called Primeiro Comando da Capital (“PCC”) because her former partner was a member of the gang and had informed on the gang when he was arrested.

5. The respondent refused the application for asylum on 7 December 2023. She did not accept that the appellant had given a truthful account of events prior to her departure from Brazil and she did not accept that the appellant and her son would be at risk. She concluded in the alternative that the appellant and her son could relocate within Brazil so as to avoid any threat from the PCC. She went on to consider their human rights claim, and concluded that the removal of the appellant and her son would not be contrary to her obligations under the Human Rights Act 1998.

Proceedings on Appeal

6. The appellant appealed to the First-tier Tribunal and her appeal was dismissed by Judge Simpson on asylum grounds. The judge did not accept that the appellant was at risk from the PCC: [58]. He concluded that the Refugee Convention was not engaged in any event: [91]. The judge allowed the appeal on human rights grounds, however, because it was his assessment that the best interests of the appellant’s son outweighed the countervailing considerations relied upon by the respondent.

7. The appellant did not seek permission to appeal against the dismissal of her appeal on protection grounds. The Secretary of State sought permission to appeal against the decision to allow the appeal on human rights grounds. Permission was granted by First-tier Tribunal Judge Le Grys, and the Upper Tribunal (UTJ Blundell and DUTJ Anthony) allowed that appeal and directed that the decision on the human rights ground of appeal would be remade. I need not rehearse the reasons that we came to those conclusions in this decision.

8. In preparation for the remaking hearing, the appellant had filed and served a supplementary bundle of 34 pages. I also had before me the composite bundle which had been filed for the previous hearing in the Upper Tribunal, which ran to 259 pages.

9. In attendance at the hearing were the appellant, her partner and her son. The appellant and her partner gave evidence. She spoke excellent English but was in any event assisted by a Portuguese interpreter. The appellant’s partner was born in the United Kingdom and required no interpreter. The appellant’s son, who is now an adult, was available to give evidence but Mr Ojo opted to ask him no questions and he was not called in those circumstances.

10. I do not propose to rehearse the oral evidence. I will instead refer to it insofar as it is necessary to do so to explain my findings of fact.

Submissions

11. Mr Ojo submitted that the relationship between the appellant and her partner had not been considered in the respondent’s decision and that it represented a new matter. (Hydar (s 120 response; s 85 "new matter": Birch) [2021] UKUT 176 (IAC); [2021] Imm AR 1478 refers.) The respondent formally gave consent for it to be considered.

12. Mr Ojo did not seek to submit that the relationship was not a genuine and subsisting one. He did submit, however, that there was no real reason that any family life could not continue in Brazil. He invited me to apply the guidance given in Lal v SSHD [2019] EWCA Civ 1925; [2020] 1 WLR 858 and AA (Morocco) v SSHD [2025] EWCA Civ 144. Relocation would not cause the appellant’s partner any significant difficulty, he submitted. It was clear that the appellant had been untruthful in relation to her ties to the country. She said that she had lost contact with everyone apart from her mother, and that she had no contact with her siblings, whereas her partner had said that they speak regularly with her brother and her nephew. Such was the frequency of their contact, in fact, that the appellant’s partner had said that he was looking to learn Portuguese so that he could communicate with them more effectively.

13. Mr Ojo did not accept that the appellant or her son would experience very significant obstacles to integration on return to Brazil. They evidently had support there. Insofar as he required medical treatment for autism, mental health problems and difficulties with his eyes, there was nothing to show that it would be unavailable. The appellant’s partner had located and paid for a psychiatrist to provide a letter in this appeal. Whilst the appellant and her son would undoubtedly need some time to adjust to life in Brazil, there would not be very significant obstacles and it would not be unjustifiably harsh to expect them to do so.

14. Mr Malik accepted that the appellant and the sponsor do not live together but he submitted she was able to succeed under Appendix FM of the Immigration Rules because the relationship is genuine and subsisting. He submitted that there were insurmountable obstacles to the relationship continuing in Brazil. The appellant’s partner was born and raised in the UK and his whole family lived in this country. It would not be possible for him to move. Nor would it be possible for the appellant to seek entry clearance as a partner because the sponsor is not in employment at present. The appellant’s son was in any event over eighteen so he would not be able to accompany his mother if she obtained entry clearance.

15. Mr Malik submitted that there were very significant obstacles to the appellant and her son returning to Brazil. They had been in the UK for a number of years and there were obvious concerns about the son’s medical conditions. It would in any event be unjustifiably harsh to remove them from the United Kingdom because his mental health conditions were acute and there was only limited treatment available in Brazil.

16. I reserved my decision at the end of the submissions.

Analysis

17. I propose to consider the relationship between the appellant and her partner first, and to do so within the framework provided by Appendix FM of the Immigration Rules.

Immigration Rules – Appendix FM

18. The appellant’s partner is a British citizen who was born in this country. Mr Ojo did not suggest that the appellant and her partner were not in a genuine and subsisting relationship. That was a sensible and proper concession on the evidence. Whilst they do not live together, and have never done so, there is evidently a close relationship which has subsisted for two years. I accept the sponsor’s evidence that he has known the appellant for five years and that they have been in a committed relationship for the last two years. I attach weight to the statement made by the sponsor’s mother, who clearly knows the appellant and is able to speak to the strength of their relationship. I was also struck by the obvious warmth with which the sponsor spoke about the appellant and her son. He is plainly an important part of their lives and vice versa.

19. The appellant and her partner are not “partners” within the meaning of Gen 1.2 of Appendix FM because they are not married or engaged and they have not lived together for two years or more in a relationship akin to marriage. Mr Malik tended in his submissions to gloss over that point, but it does mean, without more, that the appellant cannot meet the requirements for leave to remain under Appendix FM.

20. Leaving that difficulty to one side for the moment, however, I come to the principal submission made by Mr Ojo under Appendix FM, which is that there are no insurmountable obstacles to the relationship continuing in Brazil. That is a stringent test, as the Supreme Court explained in R (Agyarko) v SSHD [2017] UKSC 11 [2017] 1 WLR 823. The threshold is reflected in paragraph EX2, which requires an applicant to establish that there would be “very significant difficulties which could not be overcome or which would entail very serious hardship for the applicant or her partner”. The focus of this provision is therefore on the circumstances of the appellant and her partner; the circumstances of the appellant’s son fall to be considered at the next stage of the enquiry prescribed by the Immigration Rules and under Article 8 ECHR more widely. I apply the guidance in Lal v SSHD, as cited by Mr Ojo, to the assessment which follows.

21. The appellant’s partner is British and has lived in the United Kingdom for his entire life. All of his family members are here. He was educated in this country and has undertaken some employment here, although he was unemployed at the date of the hearing before me. He has no experience of living in Brazil. He does not speak Portuguese and is evidently concerned that he could not live there. His mother works but she has arthritis and fibromyalgia and could not attend the hearing. He is taking his driving test on 9 December in the hope that he can drive for her.

22. The appellant stated that her mother is dead and that she has not had contact with her father for many years. She also stated that she has no contact with any other family members in Brazil. The latter claim was starkly contradicted by the evidence given by the appellant’s partner. In answer to one of my own questions, he stated that the appellant and he speak regularly with her brother and his son. He spoke with clear affection for them and explained that he had downloaded an app for his mobile phone so that he could learn Portuguese and speak to them more easily.

23. In the circumstances, I do not accept that the appellant would be as bereft as she claims on return to Brazil. There is clearly a family member in Brazil with whom she retains a good relationship and there is no reason to think that he would be unable to provide her, her partner and her son with some short-term support whilst they re-established themselves in Brazil. Whilst the appellant has some mental health problems, she could work on return to Brazil, and she could support her partner whilst he learns enough of the language to seek employment of his own. English is widely spoken in Brazil in any event.

24. The sponsor was evidently somewhat concerned about the prospect of leaving his mother in the UK whilst he joins the appellant in Brazil. Whilst I accept that he is naturally concerned about that prospect, the evidence does not show that the sponsor’s mother would be unable to manage without him. She would surely prefer him to be in the UK, and for him to be able to drive her from place to place (assuming that he passes his driving test) but there is nothing before me to suggest that she is unable to use taxis or public transport. She can remain in contact with him via telephone and modern means of communication.

25. The appellant sought in her evidence to suggest that she was at risk from the PCC but that claim was resolved adversely to her by the First-tier Tribunal, and I proceed on the basis that she would not be at risk from the gang. In those circumstances, the obstacles which she and her partner would encounter are as set out above. I do not consider those obstacles to meet the stringent test in paragraph EX2. Returning to Brazil would be unsettling for the appellant, and probably rather daunting for the sponsor, but the difficulties could be overcome.

Immigration Rules – Private Life

26. Mr Malik also submitted that there would be very significant obstacles to the re-integration of the appellant to Brazil such that paragraph 276ADE(1)(vi) of the Immigration Rules should avail her. Since her son is now an adult, he also made that submission in respect of him.

27. I have already found that there are no insurmountable obstacles to the appellant returning to Brazil. Those conclusions apply mutatis mutandis to the question posed by this part of the Rules. It is clear from the recent authorities of the Court of Appeal that the two thresholds are comparable and that similar considerations apply: NC v SSHD [2023] EWCA Civ 1379. As for the appellant’s son, there are various additional considerations to which I must now turn.

28. The appellant’s son has been in the UK since 2019. The appellant asked me to note that this is a significant time for him. He has only just turned eighteen, and all of his teenage years have been spent here. He is still enrolled in education and is seemingly progressing well. He expresses concern in his own witness statement about his lack of familiarity with the educational system in Brazil and, more fundamentally, about the fact that his ability to communicate in Portuguese has reduced over the years that he has been interacting with an English-speaking peer group. The appellant’s son also notes the importance of his friends, and of his girlfriend. He has been in a relationship with her for three years or so, and it is a stable and supportive relationship. There is no statement from her and she did not give evidence before me but the appellant’s son’s evidence was not challenged by Mr Ojo.

29. The appellant’s most significant concern about her son’s return to Brazil, however, was in relation to his diagnosis of autism and his mental health. Mr Malik sought to attach some significance to that point in his submissions. The principal difficulty in that regard, however, is that there is very little evidence in support of either point. The appellant’s son states at [9] of his statement that he was diagnosed with “low level autism” in Brazil. The appellant’s mother stated in her screening interview that he had “autism to a certain degree”. There is also a letter from Tower Hamlets’ Resettlement and Migration Team dated 18 February 2025 at p143 of the composite bundle. That makes reference to the appellant’s son having been diagnosed with “high function [Autism Spectrum Disorder] back in Brazil”, and to the appellant’s son having refused to accept the diagnosis. According to that letter, therefore, the condition has not been confirmed in the UK for that reason.

30. I am conscious of the fact that autism is a spectrum condition: p238 of the Equal Treatment Bench Book refers. Unfortunately, I have nothing in the evidence before me to provide any accurate guide as to where on that spectrum the appellant’s son’s autism lies. The references to “low level autism” and to him being high-functioning suggest that he is at the less severe end of the spectrum but I do not know that with any degree of certainty. Mr Ojo understandably made no submissions about the severity of the condition, preferring to submit that the appellant’s son could obtain treatment for his ASD in Brazil. In anticipation of that submission, the appellant obtained a letter from a “Pedagogue” named Andresa Maria Bandeira da Silva dated 17 August 2025. I reproduce the substance of the letter verbatim:

I hereby declare that the student […] is undergoing psychopedagogical monitoring under my professional care, attending weekly online sessions, since August 14, 2025. According to reports, [he] suffers from anxiety , depression and absession. He has suicidal tendencies, having attempted suicide by cutting himself with shards of glass. While living in Brazil, he was diagnosed with AD (Autism Spectrum Disorder). His greatest concern is that his son’s condition will worsen if he is forced to return to Brazil due to his history of mental disorders, since he country whare [sic] he currently resides (England) has a superior healthcare system to that of his home country (Brazil). Based on the descriptions, it was concluded that the child faced difficulties with socialization of adaptation, impacting his life. The mother was advised to seek a neurologist, a psychiatrist and a psychologist specializing in mental disorders. There is currently no estimated end date for monitoring.

31. That short statement gives no indication of the Pedagogue’s qualifications, role, or their ability to opine on the state of healthcare provision in Brazil. Literally, a pedagogue is a teacher, and there is nothing in the letter which suggests that the author has any medical qualifications. Mr Ojo tended to accept in his submissions that the author was a medical professional but I do not think that was correct. The appellant’s mother has also undertaken some research on the internet which is said to highlight the deficiencies in the provision which is made for individuals with ASD in Brazil but it is not at all clear to me that the appellant’s son even requires treatment for his ASD. He has apparently not received any such treatment in the UK, and the evidence is insufficient to establish that his removal would deprive him of necessary ASD treatment.

32. As will be apparent from the extract above, the appellant’s more pressing concern is that her son requires treatment for depression and for the suicidal tendencies he has in the past exhibited. In that respect, I note the letter from Docklands Outreach dated 13 August 2025, which confirms that he received counselling intervention between March and June 2025. The appellant stated that he had returned to that counsellor in more recent times, and I proceed on the basis that that is indeed the case. There is no cogent documentary evidence before me to show that similar provision is unavailable in Brazil, however. The appellant is an articulate and committed mother, and I have no doubt that she will ensure that her son receives the support which is necessary to address any such concerns. I also note that he has recently had surgery on one of his eyes at Moorfields but, again, there is nothing before me to suggest that he would not receive excellent follow-up care in Brazil.

33. I accept that returning to Brazil will represent a serious upheaval for the appellant’s son. He has lived in this country since he was twelve years old and he has become integrated. He has been educated here and has settled into a peer group and a relationship. Relocation will disrupt his education. As a person with ASD, he will find relocation even more unsettling. But he will return with his mother and she will be able on the evidence to ensure that the obstacles he will face to integration are mitigated such that they are not “very significant”.

34. In the circumstances, I do not find that the appellant or her son are able to meet the requirements of the Immigration Rules. It remains for me to consider Article 8 ECHR outside the Immigration Rules.

Article 8 ECHR

35. For the purposes of that assessment, I am prepared to proceed on the basis that the appellant and her partner have a family life despite the fact that they do not cohabit. I also accept that the appellant and her son have a private life in the UK, formed through a combination of the factors to which I have already referred, and augmented by the studies which the appellant has herself been undertaking in recent times. The real question in this case is whether the removal of the appellant and her son is a proportionate measure.

36. I consider it to be so. The appellant overstayed her visit visa. She brought her son to the United Kingdom whilst she was an overstayer. She pursued an asylum claim which was not found to be well-founded. There is a cogent public interest in the maintenance of immigration control in such a case. The appellant and her son both speak good English but they are not financially independent, since they live in accommodation provided by the government. The private lives which they have formed in the UK were formed at a time when they were in the UK on, at best, a precarious footing. Those factors serve to strengthen the public interest in immigration control still further as a result of s117B of the Nationality, Immigration and Asylum Act 2002.

37. The consequences for the appellant and her son will be as described above. They will certainly experience a degree of hardship on return to Brazil but that hardship will not be such as to engage either EX1 or 276ADE(1)(vi) of the Immigration Rules. Balancing the competing considerations on the scales of proportionality, I have no doubt that the considerations on the respondent’s side of those scales outweighs the private and family life enjoyed by the appellant and her son in the United Kingdom.

Notice of Decision

The decision of the First-tier Tribunal having been set aside in part, I remake the decision on the appeal by dismissing it on human rights grounds.

Mark Blundell

Judge of the Upper Tribunal (IAC)
10 November 2025