Tribunal decisions

The decision

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

First-tier Tribunal No: PA/01646/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

B.D.S
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr B Hulme (Senior Home Office Presenting Officer)
For the Respondent: Mr A Malik (Counsel)

Heard at Field House on 5 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.

No-one shall publish or reveal any information, including the names or address of the respondent, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Simpson (“the Judge”) who dismissed the appeal of BDS on asylum grounds but allowed the appeal on human rights grounds (“the decision”). For convenience, we shall refer to the parties as they appeared before the First-tier Tribunal (“FtT”). Therefore, we shall refer to the Secretary of State as ‘the respondent’ and to BDS as ‘the appellant’.
2. We have decided to maintain the anonymity order originally made in these proceedings by the FtT because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Brazil. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the right of the public to know of her identity.
Background
3. The appellant is a national of Brazil. The appellant made a protection claim on 15 October 2021. She has a son whose claim is dependent on her claim. The respondent made a decision on 7 December 2023 to refuse the protection and associated human rights claim. The appellant appealed to the FtT and her appeal was heard on 24 February 2025. In the decision dated 8 April 2025, the Judge dismissed the appeal on asylum grounds but allowed the appeal on human rights grounds.
Appeal to the Upper Tribunal
4. The respondent applied for permission to appeal to the Upper Tribunal (“UT”) on 14 April 2025. Permission was granted by First-tier Tribunal Judge Le Grys on 22 May 2025 on the following terms:
“3. The grounds are arguable. […] The appeal is then allowed on Article 8 grounds, with the Judge concluding at [101] that the best interests of the child remaining in the UK outweighed “the considerable weight in favour of return.” There is little more to indicate why the Judge has reached this conclusion, and how the competing interests have been balanced. As such, it is arguable that the reasons are not sufficient for the reader to understand how the decision has been reached, or to be confident that all relevant matters and no irrelevant matters have been taken into account, and that this accordingly amounts to an error of law.”
Upper Tribunal Hearing
5. Mr Hulme addressed the panel on the matters set out in the respondent’s application for permission to appeal which can be categorised as follows: The Judge materially erred in a) failing to give reasons or any adequate reasons for findings on material matters; b) making a material misdirection of law on any material matter. We heard submissions in response from Mr Malik. Mr Hulme then addressed us on matters arising from Mr Malik’s submissions.
6. At the end of the submissions, we rose to consider the arguments we heard. On resuming the hearing, we indicated our decision is that the Judge’s decision did involve the making of a material error on a point of law; that we would be setting aside the decision on Article 8 and that we would provide written reasons in due course. We indicated we were minded to retain the case in the UT for redetermination on the Article 8 issue.
7. Mr Hulme indicated he was ready to proceed but accepted the appellant may wish to provide further evidence. He was content for the panel to decide whether the remaking could proceed today or whether there should be a resumed hearing. Mr Malik made submissions that it was appropriate in this instance to remit the matter to the FtT for remaking. Mr Malik stated that the appellant would wish to provide further evidence regarding her son’s medical condition and further evidence regarding his education in the UK.
8. Having considered the submissions of both Mr Hulme and Mr Malik, we indicated that we would retain the matter for remaking in the Upper Tribunal. Our reasons for doing so are set out in detail below. We accepted Mr Malik’s submission that it would not be possible to remake the decision today given the appellant wanted an opportunity to provide further documentary evidence. We therefore directed that the decision on the appeal would be remade on a different day.
Analysis and Conclusions
9. Having heard oral arguments and having carefully considered the decision, we are satisfied the decision did involve the making of material errors on a point of law. Our analysis of the material errors are dealt with under five separate headings below.
‘Very Significant Obstacles’
10. Given the date of the decision under appeal, the relevant applicable Immigration Rule for determination of private life claims would be paragraph 276ADE. The only applicable provision of paragraph 276ADE to minors would be paragraph 276ADE(1)(iv). However, the appellant’s son had not, at the time of the decision under appeal (nor at the date of the hearing before the Judge), lived continuously in the UK for at least seven years. Therefore, there was no provision of paragraph 276ADE that could apply to the appellant’s son.
11. At paragraph 95 of the decision, the Judge stated:
“The appellant and her son are a family unit […] Her son will be 18 shortly, however at the time of writing he is a minor. It is not suggested that I can make different decisions in respect of each individual and in any event I find that the son would face very significant obstacles to integrating into life in Brazil were to he (sic) to return alone.”
12. Although the Judge reminded himself that the appellant’s son was a minor, the Judge nonetheless proceeded to conclude that the appellant’s son would face ‘very significant obstacles’ to integrating into life in Brazil were he to return alone. The language used by the Judge indicates that the Judge had in mind paragraph 276ADE(1)(vi). We find paragraph 276ADE(1)(vi) could only apply to the appellant and not her son. We are satisfied that this in itself was a material misdirection of law by the Judge.
13. Secondly, even after such a conclusion was expressed by the Judge, we find there was no attempt by the Judge to explain why he was of the view the appellant’s son would face ‘very significant obstacles’ to his integration on return to Brazil alone. We find the remaining paragraphs 96 to 102 appear to relate, not to the ‘very significant obstacles’ test (apart from one sentence which we deal with below), but to the best interest assessment and the proportionality assessment under Article 8.
14. Thirdly, it was also unclear to us or anyone trying to understand how the Judge came to his conclusion that the appellant’s son would return to Brazil alone when the Judge clearly believed the appellant and her son were a family unit. The presumption arising from them being treated as a family unit is that they will be returned together rather than some form of separation; that is the “real world” approach of which Lewison LJ spoke at [58] of EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874.
15. Fourthly, as stated above, the only other reference to the ‘very significant obstacles’ test can be found at paragraph 99 of the decision where the Judge stated:
“I am not satisfied that the appellant has shown that she and her son would face very significant obstacles to reintegration back into life in Brazil if they were to leave together.”
16. We find there was a failure to explain how the conclusions expressed at paragraph 95 and 99 are consistent with each other. We find there was also a failure to consider the real world situation in this case, namely that mother and son would not be separated on removal as they are a family unit. In addition to our finding that there was a material misdirection of law by the Judge, we find the Judge failed to give reasons or any adequate reasons for his findings on the very significant obstacles test.
Best Interest Assessment
17. The Judge concluded at paragraph 98 of the decision as follows:
“The son came to the United Kingdom when he was 12 years old and he has spent all of his formative teenage years in the United Kingdom. He is currently studying and undergoing medical treatment. I am satisfied that pursuant to s.55 it would be in his best interests to remain in the United Kingdom at least until his studies and medical treatment are complete.”
18. Mr Hulme submits in reliance on the respondent’s written grounds that the Judge’s findings are flawed due to the Judge’s failure to provide adequate consideration and reasoning for why the best interest assessment was in favour of the appellant’s son remaining in the UK.
19. We are persuaded by the submissions made by Mr Hulme as to a material error of law. We find the Judge does not make any reference to the appellant’s son’s nationality as a Brazilian national even though nationality is of particular importance in assessing the best interests of any child (see paragraph 30 to 32 of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, per Lady Hale). We find there was an absence of consideration for the fact that the appellant’s son, a national of Brazil, if returned, would be returning to his country of nationality where he has lived for most of his life with his mother. We find the Judge does not say why it is unreasonable to expect the appellant’s son to do so. We find there is also an absence of consideration as to the resultant social and linguistic disruption of remaining in the UK as well as any analysis of the loss of connection to his homeland; the advantages of growing up and being educated in his own country, in his own culture and speaking in his mother tongue. We find that a composite part of the best interest assessment includes the child’s nationality which the Judge failed to take into account. We find the Judge’s focus on the appellant’s son’s need to complete his education here in the UK and the need to access medical treatment in the UK does not explain why these could not take also place in Brazil. We find there is an absence of focus on the real world fact that the appellant has no right to remain in the UK; that the appellant’s son if removed, is likely to be removed to Brazil with his mother and that the interests of the appellant’s son has to be considered in the this context (EV (Philippines) refers). We find the Judge failed to provide reasons or any adequate reasons for his findings on material matters.
‘Unduly Harsh’
20. The Judge concluded at paragraph 98 of the decision as follows:
“I find that if he is to stay it would be unduly harsh for him to remain without his mother.”
21. The Judge concluded at paragraph 99 of the decision as follows:
“Clearly mother and son could continue their family life in Brazil and it would not be unduly harsh to do so.”
22. Mr Hulme submits that the Judge had committed a material misdirection of law by applying the ‘unduly harsh’ test within HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 which has no application in this case. Mr Malik stated in his submissions that the reference to ‘unduly harsh’ within the decision is a reference to the ‘unjustifiably harsh consequences’ test of GEN 3.1 of Appendix FM.
23. Having carefully considered the decision, we find there is simply no support for the submission made by Mr Malik. We find the decision makes no reference to the ‘unjustifiably harsh consequences’ test which appears in the Immigration Rules and the authorities (R (Agyarko & Anor) v Secretary of State for the Home Department [2017] UKSC 11; [2017] 1 WLR 823, for example.) We would be satisfied that the Judge intended to apply the ‘unjustifiably harsh consequences’ test if there was identification and analysis (however brief) of the relevant test and the relevant facts which were considered. In the absence of any direct or indirect reference to ‘unjustifiably harsh consequences’ for the appellant or her son, and/or to the test in GEN 3.1 of Appendix FM, we find it cannot be inferred that the Judge had in mind or intended to refer to the ‘unjustifiably harsh consequences’ test. We find there are only two references to the test and both employ the phrase “unduly harsh”. We find the phrase ‘unduly harsh’ must therefore be a reference to the deportation test considered in HA (Iraq) which is evidently not applicable in this case. We find the Judge failed to apply the correct test. Given the importance of applying the correct test, we find this was a material error of law.
Section 117B
24. Mr Hulme stated in his submissions that it unclear how the Judge had carried out the assessment required by section 117B. Mr Malik argued that the section 117B assessment carried out by the Judge was one that was open to him and that it was not an irrational assessment.
25. We find the Judge’s assessment pursuant to section 117B is set out at paragraph 100 of the decision. In relation to subparagraph (ii), we find the Judge correctly reached the assessment that the appellant and her son’s ability to speak English was a neutral factor. In relation to subparagraph (iii), we find the Judge made a finding that there was no evidence that the appellant was financially independent. The Judge then concluded as follows:
“This weighs against her appeal, however the impact is not great.”
26. We find the Judge’s conclusion that “the impact is not great” is incorrect as a matter of law. Section 117B(3) of the Nationality, Immigration and Asylum Act 2002 states that it is in the public interest that those who seek to remain in the UK are financially independent. That statement is not qualified in Part 5A or in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536, and we do not understand why the judge minimised the impact on the scales of proportionality in the way that he did.
27. Mr Malik accepts in his oral submissions that there is no evidence that the appellant’s son’s medical treatment and education was privately funded. If so, we find that the appellant’s son’s medical treatment and education, if publicly funded, the cost of which should have been relevant to the respondent’s side of the scales and should have featured in the Judge’s assessment here at subparagraph (iii). As Lewison LJ explained at [60] of EV (Philippines), the UK “cannot provide medical treatment for the world” nor can it “educate the world”. The absence of any consideration to those factors on the respondent’s side of the scales, is in our view a failure to take into consideration material matters in the section 117B assessment. We consider that this error of law was material given the importance of the section 117B assessment.
Proportionality/ Balancing Exercise
28. Mr Hulme’s principal argument is that the Judge has not set out how the balance has been reached so as to enable the losing party in this case to understand why they have lost. Mr Hulme submits that it is not clear from the decision how the judge had reached the findings that he did; how the Judge applied the balance sheet approach and how the result is reached from the points considered. Mr Hulme argued that this is because multiple points relevant to balancing exercise are not referred to and it cannot be inferred that it was taken into consideration. Mr Malik submits that the decision does not disclose any material error of law.
29. Whilst we accept the Judge did list the factors he had taken into account at paragraph 100, we find that the factors listed were not all of the relevant factors he was required to take into consideration in the balancing exercise. Furthermore, we agree with Mr Hulme that at paragraph 101, the Judge fails to reason out how considerations on one side of the balance sheet outweighs the other side. The Judge stated:
“I find that the weight to be accorded to the son’s interest in remaining in the United Kingdom at this time outweighs the considerable weight in favour of return and that it would be disproportionate to expect him to remain in the UK alone. I am satisfied that refusal is a disproportionate interference with the Article 8 rights of mother and son.”
30. We find the Judge has failed to set out the “pros” and “cons” or any reasoned conclusions as to whether and how the countervailing factors outweigh the importance attached to the public interest in the maintenance of immigration control. We find it was especially important that he did so in a case where he found that the “appellant has attempted to manipulate the international protection regime” and as a consequence “the public interest is enhanced”. We are satisfied that the conclusions that the Judge had reached is not supported by any or any adequate reasons. As there was a legal duty on the Judge to provide a reasoned explanation for the conclusions reached, we consider that this failure constitutes an error of law. Given the importance of the balancing exercise in the outcome, we further consider that this error of law was material.
Remaking
31. The effect of paragraph 7 of the ‘Practice Statement Immigration And Asylum Chambers of the First Tier Tribunal And the Upper Tribunal’ regarding disposal of appeals in the UT is that where, following the grant of permission to appeal, the UT concludes that there has been an error of law, then the general principle is that the case will be retained within the UT for the remaking of the decision. The exceptions to this general principle is set out in paragraph 7.(2)(a) and (b) which we have considered carefully alongside the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
32. We find that on the facts of this case, the appellant has not been deprived of a fair hearing or other opportunity for her case to be put. This is because her protection claim was thoroughly considered and dismissed and there has been no challenge from the appellant against the decision. In relation to the Article 8 of the ECHR claim, we find that this was allowed by the Judge but the Judge fell into material error for the reasons we have already set out above. We find that the nature and extent of any necessary fact finding in the remaking will be confined to one issue namely Article 8 of the ECHR. Within that, the UT will need to remake the best interest assessment, section 117B assessment and the proportionality balancing exercise. We find there is no suggestion that there has been any unfairness arising from the way the case had been dealt with below such that it requires the matter to be remitted to the FtT. We have concluded that this case should follow the general procedure and be remade in the UT and not be treated as an exception under paragraph 7.2(a) or (b).
Directions
33. We accept Mr Malik’s submission that the appellant should have an opportunity to provide further documentary evidence. The directions we made are the following:
a) The appellant to file and serve any further evidence she seeks to rely on by no later than 4pm 19 August 2025.
b) The matter to be listed for a resumed hearing for the first available date after 26 August 2025, if possible before one or both of us.
Notice of Decision
c) The Secretary of State’s appeal is allowed.
d) The making of the FtT’s decision did involve the making of a material error on a point of law. The decision is set aside.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 August 2025