UI-2025-002528 & UI-2025-00252

• Status of case: Unreported
• Hearing date: 24 Jul 2026
• Promulgation date: 26 Oct 2026
• Publication date: 11 Nov 2026
• Last updated on: 11 Nov 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002528
UI-2025-002529
First-tier Tribunal Nos: HU/64461/2023
HU/64465/2023
LH/07290/2024
LH/07291/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

26th October 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

(1) SS
(2) AS
(ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellants: Ms C Zapata Besso, Counsel instructed by Refugee Legal Support
For the Respondent: Mr D Simpson, Senior Home Office Presenting Officer

Heard at Field House on 24 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants, the sponsor and his brother, their maternal uncle, and the maternal uncle’s friend in Pakistan 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 and/or the other individuals listed in the above paragraph. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS

Anonymity
1. An anonymity order was made in the First-Tier Tribunal because the appellants are children and the sponsor and his brother are recognised refugees. It was considered that the importance of facilitating the UK’s obligations under the Refugee Convention and the potential detrimental impact on the sponsor and his brother and the appellants if their identities were made known outweighed the principle of open justice. I agree and have continued that order. I was asked at this hearing to extend that order in respect of the maternal uncle who has been assisting the appellants and in respect of his friend with whom the appellants are living. I was asked to do this because of the risk of jigsaw identification of the appellants. I consider it to be appropriate to extend the order. Whilst there may be many undocumented Afghan children living in Pakistan with extended family, friends or acquaintances, whose circumstances are broadly similar to that of the appellants, precise details of those with whom they live and to whom they are related clearly risks identifying the specific appellants and sponsor.
Background
2. The appellants are at the date of hearing aged 15 (almost 16) and 17 years’ old respectively. They are Afghan nationals, the full brothers of two recognised refugees in the UK, the elder of whom is the sponsor. The respondent accepted at the hearing in the First-Tier Tribunal, that Article 8 (1) ECHR is engaged on the basis that there is family life between the appellants and sponsor and their other brother in the UK.
3. The appellants’ parents are dead, and they have been living in Pakistan with a friend of their maternal uncle and the friend’s family since 2018 and 2019 respectively. They are undocumented in Pakistan. They applied in April 2023 (when aged 12 and 13 (almost 14)) for entry clearance as the children of a non-parent relative with leave to remain as a refugee (Appendix CNP of the immigration rules). Their applications were refused in November 2023, and they appealed to the First-Tier Tribunal who dismissed their appeals by decision promulgated on 5 March 2025. They appealed with permission to the Upper Tribunal and by decision promulgated on 26 May 2026 (see annex below), I found errors of law in the First-Tier Tribunal decision, set it aside albeit with many findings preserved and directed that the appeal be remade in the Upper Tribunal. What follows is the remaking decision.
The legal framework - eligibility requirements of Appendix CNP
4. The applications were decided by the respondent under Appendix CNP (which came into force in April 2023). I note that the appellants’ former representatives, when making submissions to the respondent on the application with supporting evidence pre-decision in September 2023, argued that the date of the application was such that it should be decided under the former provisions of the rules (rule 319X) relating to family reunion for relatives of a person with refugee status in the UK. However this was not an issue between the parties by the stage of the First-Tier Tribunal as both parties made submissions and made submissions before me relating to the provisions of Appendix CNP (which although not identical to the former provisions are very similar).
5. The version of Appendix CNP in the appellants’ bundle is not in fact the correct version under which the respondent made the decisions. I quote below from the version in force from April 2023 up to and including the date of the decisions (which is the version quoted in the respondent’s skeleton argument) although there are no material differences between that version and the version in the appellants’ bundle in relation to the issues between the parties.
“CNP 3.1. The applicant must:
(a) be aged under 18 on the date of application; and
(b) not be married or in a civil partnership; and
(c) not have formed an independent family unit; and
(d) have an existing, genuine family relationship with the UK based relative; and
(e) have satisfactorily established their identity and nationality.

CNP 3.2. The decision maker must be satisfied that:
(a) the applicant can, and will, be accommodated and maintained adequately by the UK based relative, without access to public funds and in accommodation which the relative owns or occupies exclusively; and
(b) there are suitable arrangements for the applicant’s care and accommodation in the UK, which must comply with relevant UK legislation and regulations; and
(c) there are serious and compelling family or other considerations which make exclusion of the applicant undesirable.

CNP 3.3. Where an applicant does not meet the eligibility requirements of CNP.3.1. and CNP 3.2., the decision maker must consider whether a grant of permission to stay or entry clearance is appropriate based on exceptional circumstances which include where:
(a) the applicant has no parent with them; and
(b) the applicant has no family other than in the UK that could reasonably be
expected to support them; and
(c) there is an existing, genuine family relationship between the applicant and the
UK-based relative; and
(d) the applicant is dependent on the UK based relative.

CNP 3.4. Where the applicant does not meet the requirements in CNP 3.1. and CNP 3.2. and the decision maker is not satisfied that there are exceptional circumstances under CNP 3.3. consideration must be given to whether refusal of the application would be a breach of Article 8 ECHR, because such a refusal would result in unjustifiably harsh consequences for the applicant or their family member, whose Article 8 rights it is evident from the information provided would be affected by a decision to refuse the application.”

Remaking hearing
The issues between the parties
6. It was accepted in the First-Tier Tribunal that the relationship requirements of CNP 3.1 were met, and, as set out above, that Article 8 was engaged based on family life.
7. It was accepted in the First-Tier Tribunal that the requirements of CNP 3.2 could not be met because (a), the requirements relating to maintenance and accommodation without access to public funds could not be met.
8. The preserved findings of the First-Tier Tribunal mean that the appellants are not financially dependent on the sponsor. The appellants accept (see paragraph 12 c) of the appellants’ most recent skeleton argument), that this means CNP 3.3 (d) is not met.
9. The appellants argue that the list of exceptional circumstances in CNP 3.3 is non-exhaustive and they can show exceptional circumstances under CNP 3.3. The respondent disagrees.
10. Both parties agree that I must decide under CNP 3.4 whether refusal of the application breaches Article 8 ECHR on the basis it would result in unjustifiably harsh consequences for the appellants or the sponsor/their other brother, and as part of so doing I must assess the appellants’ best interests.
11. The appellants accept that when considering whether the decision breaches Article 8 ECHR, the provisions of sections 117B(2) and (3) of the Nationality, Immigration and Asylum Act 2002 are not met as the appellants do not speak English, and they would not be financially independent on arrival but would need to have recourse to social and welfare provision (see paragraph 16 of the appellants’ most recent skeleton argument).
12. The parties disagree as to the effect in this case of section 117B (1) of the 2002 Act.
The evidence and submissions
13. I had before me a consolidated bundle containing the appellant’s and respondent’s bundles before the First-Tier Tribunal and updating evidence, all of which I have taken into account. The sponsor was the only witness who gave evidence (through a Pashto interpreter) at the remaking hearing. I agreed that he should be treated as a vulnerable witness bearing in mind the brain injury he suffered in a moped accident in January 2022. Both representatives were aware of the need for appropriate questioning, and the only other adjustment was that breaks could be requested as and when necessary for the sponsor.
14. The sponsor confirmed the truth of the various witness statements he had made, explaining that he had mistakenly signed the first appellant’s name in the most recent statement rather than his own name. He explained in examination in chief that the second wife of the paternal uncle who raised the second appellant was still living in Afghanistan, but after both the paternal uncle and his first wife had passed away, the second wife said she could not take care of the second appellant and went back to her parents’ home which was why the second appellant had been sent to Pakistan to join their maternal uncle. The second wife was not a blood relative, and it had been two years since the sponsor had any contact with her.
15. In cross-examination the sponsor said that initially the appellants were going outside the house and things were normal, but when Pakistan started to deport Afghans it became difficult and it was hard for them to leave the house, to go to school, go to education, or even to socialise. He said that there was a more difficult period over the last two or three years and recently things had become even more difficult. He agreed that the appellants had been provided by the uncle’s friend with food and drink and accommodation, but he said there were three people staying in one room and they were not getting any education. He agreed that as they were living with the friend and his family including his children, they might have good connections with them. It was put to him that it was a period where the appellants were relatively stable and relatively safe, and he responded that they were not safe at all, they could be caught at any time by the authorities which was why they were not leaving the accommodation. They had no family connections with the uncle’s friend, they were living there as there was no other option; their uncle had a connection with his friend, but they did not have any direct connection with him and there was no relationship either. The sponsor’s last visit to Pakistan was a couple of years ago, as it was really difficult to visit now as Pakistan were not issuing visas to Afghans, particularly refugees. He and the appellants were in contact over the telephone. He repeated that there was a very strong fear that the appellants would come to the attention of the authorities, so they were not going out. In the past things were different, they were going to the mosque and getting an education but now that had been stopped and they weren’t getting anything. The sponsor said he had the information about this from the appellants, they spoke on the phone and shared everything, and he asked them about their life and how they felt, what their needs were.
16. I asked the sponsor whether he had tried to obtain a visa for Pakistan to see the appellants and he said that when he had a visa in the past he had used an agency and when he contacted the agency again they said that it was extremely difficult and they could not get him a visa, it said on the relevant website that visas were not being issued for refugees from Afghanistan with travel documents.
17. Mr Simpson referred to the submissions in his skeleton argument. He submitted that whilst the factors in CNP 3.3 were not exhaustive, those four factors were cogent factors to consider, and they were set apart from CNP 3.4. Not meeting one factor was highly damaging to the overall assessment, he submitted. His submission was that it was CNP 3.4 which I had to consider.
18. He said that the respondent noted what was set out in the social worker’s reports, but they were two and three years outdated. The appellants’ wish to be in the UK with their brothers was noted. Since the date of the report and the witness statements another two years had passed where the appellants had been living with the friend’s family. The preserved findings indicated that they were able to leave the house and have more social interactions than the social worker’s report suggested. The appellants had been living with the uncle’s friend’s family for 6 years and the family had gone out of their way to care for them; by comparison in the UK they would be going to a foster family who did not know them personally.
19. If, he submitted, I found that it was in the appellants’ best interests to come to the UK then the guidance in IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516 needed to be considered. The best interests of the children were not the paramount consideration. The review had made clear that there was no provision to come to the UK to seek asylum. The preserved findings about the appellants’ essential living needs being met, that there was no reason to conclude that the friend would act to deprive them of food and accommodation, that they had experienced a period of relative stability in living with the friend, and that at the date of the hearing before the FTT they were in receipt of Islamic education and engaging in social interaction most days were significant. It was relevant to note that they had left Pakistan and returned to Afghanistan to obtain documents, and they must have passed checkpoints in the process. They had received identification numbers from UNHCR, the sponsor had been able to take the appellants out shopping and to take them to barbers, to engage in society that was highly relevant to the overall assessment and there had been no adverse incidents in six years. He submitted that there was no real risk of the status quo ceasing at any moment.
20. It was said that the situation had worsened. Reliance was placed by the appellants on the May 2026 Mixed Migration Centre report about the protection and assistance needs of Afghan children and youth in Pakistan. However the report explained that the “illegal foreigners repatriation plan” had been launched in October 2023 and it was after this time that the appellants had obtained documents from Afghanistan, the sponsor had visited and the appellants went out on a daily basis. They had continued to be safe. Their period of risk as an undocumented unaccompanied child returning to Afghanistan would be coming to an end as they reached 18.
21. When considering proportionality, it was significant as regards the public interest that key immigration requirements such as speaking English and being financially independent were not met. That meant taxpayers’ money would be spent, and it made effective integration more difficult. That Article 8 ECHR assessments were within the rules did not limit the public interest but were to make the rules clearer; it did not mean that an applicant thereby was in the same position as someone who met the substantive immigration rules. That the complete requirements of CNP 3.1 – 3.3 were not met was relevant to the high public interest. A key part of the requirements was that they would not be accommodated or maintained by the sponsor so that there was a strong public interest to overcome.
22. Family life could continue, he submitted. What he described as the relative period of stability when living with the friend’s family had meant that the appellants could be visited by the sponsor and that it was said to be slightly more difficult now did not mean that it would always be more difficult. Family life could continue through messages and calls, and this would not damage the public interest. It had not been shown that there was any real increase in risk to undocumented children in 2026 at least not to the level of unjustifiably harsh consequences as they had family and private life in Pakistan. The risk to the appellants would be reducing, even the risk in Afghanistan would be reducing as the age profiles targeted by the Taliban were 14 – 17. In this case he submitted there were no exceptional circumstances or unjustifiably harsh consequences.
23. Ms Zapata Besso referred me to her skeleton argument. She asked me to note the preserved finding that the sponsor was generally credible. There was no reason to doubt his credibility about the deteriorating situation in Pakistan affecting both the appellants and his ability to visit them; that was consistent with the background material that even those who were documented were subject to a very hostile environment and a lack of protection for their rights.
24. It was accepted by the First-Tier Tribunal and did not seem in dispute that family life consisted of visits and remote contact. The nature of family life was already being curtailed. If the risk of deportation from Pakistan materialised then it would extinguish family life, but it was already curtailing family life and its future development.
25. Although, she submitted, the appellants were not seeking to go behind the preserved finding that they were not financially dependent, there was an element of dependency as the sponsor provided emotional support and the appellants were emotionally dependent on him. She accepted that did not mean that CNP 3.3 (d) was met but she submitted it was relevant for exceptional circumstances. CNP 3.3 looked very much like considering whether family life existed with a non-parent relative. She referred me to page 11 of her skeleton argument and the respondent’s policy on family life to see what “exceptional” meant. She said that meant that CNP 3.3 reflected the Article 8 analysis. Although the appellants were not strictly financially dependent on the sponsor, the respondent accepted that family life existed and taking that into account, it was not clear why the respondent said the public interest weighed against the appellant because not all the requirements of CNP 3.1 – 3.3 were met. There was nothing that she could see to say that where the main parts of the rules under a particular route were not met that weighed in the public interest against an appellant. It could not be held against the appellants that there was no route for them as there was a route for children in these circumstances. It would be double counting if it was held against them that they did not meet the requirements of CNP 3.2 when the public interest considerations there were a lot like those set out in section 117B (3).
26. The appellants were still children. They were illiterate and there were difficulties taking statements from them. I could not infer that the position had improved in the two years since their statement and the social worker’s reports. The sponsor’s broad evidence today was that the appellants were living in the same situation as at the time of the previous hearing, they went out less, but that was consistent with the approach towards Afghans. It could not be suggested that the sponsor was not credible or that the situation for the appellants had improved.
27. It was only relevant that there was no provision to enter the UK to seek asylum if that was what the appellants were trying to do. They were not. They were seeking to join their brother under a route designed for children to join non-parent relatives with protection status. The risk was increasing rather than reducing as time went on and that the appellants were able to cross the border with an adult to obtain documents says nothing about the risk to them as unaccompanied minors. They had travelled to Afghanistan before March 2025 which was when the mass migration report indicated that the risk had increased. It was May 2023 there was reference to them going though checkpoints with the uncle’s friend en route to the UNHCR to obtain identification numbers and it had been 2024 that the sponsor had visited and taken them to the barbers. The risk to the appellants had heightened rather than reduced. The mixed migration report highlighted that detention was identified as the biggest danger by Afghan children in Pakistan, but they also identified a high risk of deportation. Caregivers as well as children reported a high risk of detention for boys and young men. That cardholders now accounted for over two-thirds of returnees from Pakistan did not mean that those undocumented were at no risk. The report referred to documentation being perceived as offering some protection against deportation but that no longer protected people, opportunities to gain regular status were unavailable and UNHCR documentation did not confer legal protection under Pakistani law. The facts had to be assessed as at the date of the hearing; I could not rely on what was said about the risk period coming to an end.
28. When considering proportionality, although the appellants were not financially independent and could not meet the maintenance requirements that needed to be weighed in the balance against the fact that the reason the sponsor could not support the appellants was because he suffered a traumatic head injury after he gained refugee status which affected his ability to work and study and he was trying his best in the circumstances. It was only his lack of means and his own needs which meant he could not look after the appellants. I was referred to the section in the skeleton argument about factors relevant to the proportionality balance, the nature of family life, the brothers’ shared history, why they were separated, that they were the sole surviving members of the core family and that they resumed contact at the first available opportunity. When considering the weight to be attached to family life, I needed to consider the reasons for separation and should give family life considerable weight.
29. Paragraphs 43 – 47 of the skeleton argument referred to the emotional toll of the situation on the sponsor. The friend who looked after them also described how the appellants were affected by the situation and it was in this context that I should consider the submissions at paragraph 50 about the social worker’s report. The hardship suffered by the family and the best interests of the children should be given considerable weight.
30. At the conclusion of the hearing, I reserved my decision.
Findings and reasons
The appellants’ circumstances in Pakistan and the risk to them in Afghanistan
31. My starting point as to the conditions in which the appellants live are the preserved findings set out at 29 [vii]. I will of course return to their precarious circumstances in terms of their risk of removal to Afghanistan, but the updated evidence does not indicate any change to their living conditions, which were found to be adequate in the sense that their essential living needs were being met and there was no real evidence of neglect and no suggestion of any abuse. They are still living with the uncle’s friend and his family in a crowded house, sharing a room with one of his children. The sponsor realistically accepted that they might have good connections with the friend and his family including his children. The preserved findings included that there was no reason to conclude that the friend would act to deprive the appellants of food and accommodation, and I do not consider that anything has changed in that respect.
32. It is accepted as I have set out above that the appellants are not financially dependent on the sponsor although he does send money via the friend when he can. The preserved findings from the date of the First-Tier Tribunal hearing were that the maternal uncle sometimes sent money although it was not a lot (the friend’s evidence was that otherwise he, the friend, supported the appellants) and there was no reason to conclude that the maternal uncle would not continue to provide some money and give other support as he had done to date (which included help to obtain the appellants’ taskiras from Afghanistan). I have no further evidence about the maternal uncle or his position and there is therefore no reason to depart from the preserved findings. The First-Tier Tribunal judge found that it was the maternal uncle who made the arrangements and the decision to leave the appellants with his friend in Pakistan and that he was now living in New Zealand, but she could not make any further findings given the lack of real detail as to the reasons and basis on which he had residence in New Zealand or evidence as to New Zealand immigration provisions which it was said meant that the uncle could not sponsor the appellants to live in New Zealand as he was not their father. I have no further evidence either. The friend said in his witness statement that he consulted both the sponsor and the maternal uncle when making decisions for the appellants, but as the First-Tier Tribunal noted there was no detail of the types of decisions which were being made.
33. It is clear that the sponsor is in regular telephone contact with the appellants (he says at least once a week, sometimes more) and that he provides them with emotional support. I accept what the sponsor says in his most recent witness statement that he is the only adult they can talk to about how they feel and what is on their minds. I accept this because not only has the sponsor been found to be a credible witness and he was not challenged on this aspect of his witness statements, but it makes sense against the factual background. The friend with whom the appellants live is often working away from home, and the appellants’ witness statements express their concern that although they are treated well, they are not living with family members, and they worry that as they become older they may not be able to live with the family, for example they are not permitted to eat with the friend’s wife, because they are not members of the family. It appears perfectly credible that against this background the appellants may be more likely to express fears and worries to a brother rather than to the friend. I have no detail of the contact the appellants have with the maternal uncle, but it is noteworthy that the second appellant never lived with the maternal uncle (unlike the first appellant), and I find it natural that in circumstances where the maternal uncle is not planning (whether because he is not able or because he is not willing) to sponsor the appellants to live with him in New Zealand, the sponsor’s natural feelings of responsibility for the appellants mean that he is the person who checks up on them and reassures them about what is going to happen.
34. At the time of the First-Tier Tribunal hearing in February 2025 although the appellants were not able to attend school or receive any form of secular education, they received Islamic education for a short period of time after attending morning prayers at the mosque which they did most days which also meant they engaged in social interaction (see the preserved finding at 29 (vii)).
35. The sponsor’s evidence in his most recent witness statement made only a few days before the hearing was that because of the risks with the police everywhere looking for Afghan people and arresting and deporting them, the appellants no longer went as often to the mosque, only once a week or so, and did not go anywhere else because of the risks. He said in evidence at the hearing that “they are not leaving anytime” and in the past they had been going to the mosque and getting an education there, but now that had also been stopped, and they were not getting anything. The apparent difference with his witness statement was not pointed out to him in cross-examination.
36. Despite that inconsistency and that the sponsor suggested that the difficult period started two or three years ago (as opposed to more recently, after the date of the last hearing) I am satisfied that it is more likely than not that the appellants are now only going out once a week to attend the mosque, as the sponsor said in his witness statement. I consider, as I explain in the paragraph below, that the sponsor is a credible witness and that what he says accords with the background material which suggests Afghan children in Pakistan are increasingly afraid to go out.
37. When assessing the sponsor’s evidence, I bear in mind firstly that he was found to be a credible witness by the First-Tier Tribunal and secondly that he is a vulnerable witness; his brain injury means that he has memory issues, and difficulties with concentration and focus. That may well account for difficulties in describing when things happened, and a slightly different account given on different occasions. That the problems facing Afghan children in Pakistan have increased in the past year or so is highlighted by the mass migration report dated May 2026 which describes Afghans as “increasingly afraid to go out” (p 5 report), and implementation of the plan taking a hardline stance against Afghans in Pakistan (which had started in October 2023) intensifying after March 2025 (p 7 of report). The report described the recent “uptick of deportations” (over half of all returns and close to two thirds of deportations since autumn 2023 taking place between the beginning of April and the end of November 2025) having drastically exacerbated the vulnerability of Afghan refugees and migrants, “forcing them into the shadows” (p 7 report). 28% of children and youth were reported by caregivers as not attending any education services including Koranic schools (p 14 report). 58% of boys considered that they were at risk of detention, and 25% at risk of deportation (p 21 report). It is right that proof of registration card holders now accounted for over two-thirds of returnees (up from 7% in April 2025) but although attention may have shifted to cardholders, I consider that does not mean that undocumented Afghans are left alone, they must account for up to a third of the returnees.
38. Because I have found the sponsor to be a credible witness, I accept that the reason he has not visited Pakistan again to see the appellants is because, as he says, Pakistan is not issuing visas to Afghan refugees who only have travel documents. The sponsor described to me contacting the agency who originally helped him obtain a visa for Pakistan, and I am satisfied that he would have tried to visit his brothers again if he were able to do so.
39. I share the concern of the First-Tier Tribunal judge as to the weight that can be given to the opinions of the independent social worker expressed in her reports of June 2023 and 2024. This is because, as the First-Tier Tribunal judge said, she gave no real details of the work she has carried out and gives no detail to indicate any work done with persons of the appellants’ cultural background and/or any understanding or experience of the context and care arrangements or family dynamics in Afghanistan and Pakistan. It is for example difficult to see how she is able to say that the appellants’ parents “exhibited very strong family values” when it is based on inference from what was reported to her which could only have been observed by children and does not specifically take account of the fact the second appellant was not brought up by his parents but given to an uncle to raise. Again as the First-Tier Tribunal judge said, the reports refer in general terms to shared trauma and experiences although the sponsor’s brother was not interviewed and each of the four (the two appellants, the sponsor and his brother) have had quite separate experiences (for example the second appellant never lived with either the sponsor or his brother, and the brother went to a madrassa after the death of his parents). I note that the social worker’s fear that “most likely it would appear that (the friend) will soon be compelled to eject the children due to threats to his own family” has simply not been borne out.
40. However, the reports still have value as a record of what the social worker was told about the feelings and wishes of the individuals involved and her impressions of how the appellants presented. I appreciate the preserved findings that the appellants are in reasonable physical and mental health for their age, but whilst they might not be suffering from clinical depression, I am satisfied that they do not feel happy and as the sponsor says, their lives are very empty. When the social worker saw the appellants over a videocall in 2024, the second appellant was described as becoming shaky and tearful and he said the situation was “leading to depression” for him because they could not have a free life or make friends and they worried about the sponsor and his health. The first appellant explained that they had been worried about the sponsor because he had become different since his accident and was more and more forgetful and they wanted to be with him and help him get better. He explained that the sponsor would ring them and forget that he had spoken to them earlier and then forget what he wanted to tell them. The second appellant had told the social worker the year before how hard it was to live there with no studies, being stuck in one place all the time, sitting inside all day and missing their families and needing to be with their brothers as soon as possible. The first appellant had described being happy when they think about coming to join their brothers, that there was nothing in Pakistan to occupy them, that the friend’s children were much younger than them and that they ate alone, separated from the family and only had each other.
41. The social worker’s report is two years old, but on my findings the position has not changed for the better for the appellants, rather their lives have become more restricted. Of course, I must bear in mind that the appellants have an incentive to describe themselves as unhappy. However I am satisfied they have both suffered traumatic events; the first appellant was present at the age of about 4 when his father and brother were taken by the Taliban and his mother and sister killed, which was how the maternal uncle came to be looking after him. The second appellant was given to an uncle to raise and at the age of 9 or so, after his uncle’s death, found his uncle’s first wife, who had been a mother to him, dead in her bed and was then sent to Pakistan to join the first appellant. The friend described to the social worker that they suffered nightmares. I find it understandable that they would be feeling unhappy or depressed particularly now their lives are more restricted; they are of an age when education and forming relationships with peers is particularly important, but they stay inside most of the time with little to occupy them and they are of course aware of the risks which they might face if they are caught. In this context I consider it significant that the mixed migration report describes 70% of the children they surveyed as feeling depressed and 57% intending to move to another country with many expressing hope for resettlement.
42. I find that the appellants are at real risk of being returned to Afghanistan. That they have not already been found and returned does not mean that they are somehow immune from return or that their connections would be able to prevent their return. The sheer number of Afghans in Pakistan (around 3.7 million) means that even if the rate of returns which went up recently according to the mixed migration report (839,000 returns and 70,600 deportations over 8 months in 2025 – amounting to more than half of all returns and close to two-thirds of all deportations since the middle of September 2023 when the repatriation plan began) can be sustained, it would still take a few years for everyone the authorities wanted to remove to be removed.
43. It is right that the appellants returned to Afghanistan in August of 2024 to obtain taskiras, taken by the friend and meeting the maternal uncle there. That they were able to cross the border twice is an indication of some connections, money to pay smugglers/bribes or simply the adults knowing where to cross without (at that time) difficulty; it does not indicate that they would be able to remain permanently in Pakistan without being removed. As I have noted above, the mixed migration report indicates an “uptick in deportations” since that time. I observe that the preserved findings indicate that they have not been able to access services in Pakistan such as education, so that clearly even if the uncle or friend has some connections, it has not enabled them to live in Pakistan as if they were children who had that nationality.
44. I appreciate that the appellants are growing towards adulthood as the appeal process continues, but I must consider them as they are now. If they were detected and removed to Afghanistan, they would be returning to Afghanistan as unaccompanied children. The CPIN of May 2026 indicates in its executive summary that depending on their individual circumstances and the place of return, unaccompanied children may face a real risk of persecution or serious harm from the Taliban or from non-state actors. The body of the CPIN indicates that the Taliban typically recruit boys aged 14 to 17 (paragraph 3.2.7) and that there are no very strong grounds supported by cogent evidence to depart from the country guidance of AA (unattended children) Afghanistan CG [2012] UKUT 16 that unattached children may be exposed to serious harm. In the case of the appellants, the First-Tier tribunal judge found that they had no male relatives living in Afghanistan and I am satisfied from the sponsor’s evidence at the hearing that the only female “relative” is the second wife of the paternal uncle who raised the second appellant and she is now living with her own family to whom she returned. If the appellants are returned there would be nowhere for them to live and no relatives to turn to. The appellants have never lived without adults, worked, or had to look after themselves. Whilst if the family’s worse fears are realised, I am sure that the sponsor and his brother and the uncle in New Zealand would do their best to try and locate the appellants and get funds to them and find any connections they have who might help, the risk is that they will come to harm on their own without anywhere to go or any support before they are located, and of course simply having accommodation or financial support would not itself remove the risks to which the CPIN indicates unaccompanied children may be subject.
Eligibility requirements of immigration rules CNP 3.1 – 3.3
45. Before turning to the children’s best interests and proportionality, I consider it instructive to see which requirements of eligibility rules are met.
46. It is agreed that all requirements of CNP 3.1 are met.
47. It is agreed that CNP 3.2 (a) cannot be met. Although not expressly agreed, it does not appear to be disputed that CNP 3.2 (b) could not be met. The preserved findings of the First-Tier Tribunal were (see 29 (ix) of the error of law decision) that because of the position of the sponsor and his brother and the sponsor’s injury the appellants would likely be placed with foster families or other care arrangement on arrival in the UK. In his most recent witness statement, the sponsor says that he is still living in the same one-bedroom flat and his aim is to earn enough to afford a place to offer a home to his brothers and to support them but he does not know for certain when that will happen. In other words, the circumstances have not changed enough for the sponsor and his brother themselves to be able to make suitable arrangements for the appellants’ care and accommodation in the UK.
48. There was no discussion at the remaking hearing of whether there were serious and compelling family or other considerations which made exclusion of the appellant’s undesirable. In her skeleton argument before the First-Tier Tribunal however Ms Zapata Besso argued that there were such compelling considerations and it is apparent from the review that the respondent was arguing that even if the relationship between the appellants and sponsor was proved (which the respondent had not at the stage of the review conceded) this requirement would not be met.
49. The case of Mundeba (s.55 and para 297 (i) (f)) [2013] UKUT 88 (IAC) considered the (then) virtually identical provision under paragraph 297 of the immigration rules. It explained that it inevitably involved an assessment of what the child’s welfare and best interests required. The head note continues at iv):
“Family considerations require an evaluation of the child’s welfare including emotional needs.  ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment.  The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
a. there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939.
50. The Upper Tribunal explained at [34] “In our view, ‘serious’ means that there needs to be more than the parties simply desiring a state of affairs to obtain. ‘Compelling’ in the context of paragraph 297(i)(f) indicates that considerations that are persuasive and powerful. ‘Serious’ read with ‘compelling’ together indicate that the family or other considerations render the exclusion of the child from the United Kingdom undesirable. The analysis is one of degree and kind. Such an interpretation sets a high threshold that excludes cases where, without more, it is simply the wish of parties to be together however natural that ambition that may be”.
51. I consider it clear that it would be in the best interests of the appellants to come to the UK. Whilst they have food and shelter and have connections with the friend and his family who are kind to them and there is no neglect or abuse within the family, they are at real risk of removal to Afghanistan and being thereby placed in danger. Their care arrangements are therefore not stable, but precarious. Due to the risk of removal to Afghanistan their lives are very restricted and mainly confined to the house; they are not having appropriate social interaction with peers and because they are mainly confined to the house and lack documentation giving them the right to reside in Pakistan, they are not receiving an education. Because of the fears and the restrictions on them, they feel depressed and lacking purpose. Leaving the community of Afghans/Pashto speaking nationals of Pakistan in which they have been established all their lives and have connections with the friend’s family will be difficult for them. If they come to the UK, they will be coming to live amongst strangers from a very different cultural background, speaking a different language, which is likely not to be easy for them to learn as they have had little education and are not used to a secular education. I appreciate they took a month’s English course for an hour a day in 2023 but this is unlikely to have been sufficient to prepare them. Going to school or college is likely to be difficult as it will be a very unfamiliar setting. Whilst this means that not every factor points in favour of coming to the UK, I still consider it is strongly in their best interests for them to come to the UK. They will face difficulties adapting, but not only will they be safe, and free from the fear of what might happen to them, they will also be with, even if not immediately living with, their closest family members including of course the sponsor who gives them emotional support and will be able to help them integrate. As orphaned children who are living a restricted life in Pakistan and whose closest relatives both in terms of family relationships and in terms of the offering of emotional support are in the UK, and who have no family members with them, it is not only in their best interests that they leave Pakistan for somewhere safe, but also in their best interests to come to the UK.
52. My conclusions about the stability of their care in Pakistan, the risks of removal they face, their unmet needs for social interaction and education, their feelings of depression and lack of purpose means that taken together I find that there are serious and compelling family or other considerations which make their exclusion undesirable. I consider that there are persuasive and powerful considerations going beyond the wishes of the appellants and their brothers. Some of those features are stronger than others. I appreciate that the case of Mundeba speaks about whether the conditions appellants face are really different from those others face in the country in which they live, but the rationale must be to emphasise that although it might always be said to be a factor when considering a child’s best interests that they may have better living and economic conditions and better education in the UK, that in itself is unlikely to mean that there are serious and compelling considerations which make their exclusion undesirable, or even to be a particularly significant factor when looking at the position overall. By contrast, that many Afghan children living in Pakistan will face similar conditions of precarious circumstances and risk of return to Afghanistan does not mean that the appellants’ circumstances are not serious and compelling. Those children who live in war zones, or who are at real risk of being removed from the country where they are living to somewhere they will not be safe or there is a real risk they will not be safe, are just more likely to be able to satisfy the “serious and compelling” test.
53. The appellants accepted that they did not meet CNP 3.3 (d) because they are not financially dependent on the sponsor. They clearly meet CNP 3.3 (a) and (c). I find they also meet (b). Whilst their uncle in New Zealand could reasonably be expected to give them some financial support as he has done in the past, he has not given them complete financial support; he is not the source of their emotional support and I consider it is unreasonable to expect him to be, given his lack of past close relationship with the second appellant and that he has proved to be either unable or unwilling to try to bring the appellants to New Zealand.
Approach to CNP 3.3
54. Ms Zapata Besso pointed out that the wording of CNP 3.3 is “exceptional circumstances which include”. It cannot therefore be limited to those precise circumstances laid down. Mr Simpson agreed but said that the factors listed were highly relevant ones to consider and not meeting one was highly damaging to the overall assessment.
55. The meaning of “exceptional circumstances” is not defined in the appendix. In her submissions Ms Zapata Besso referred to the definition in the Family Policy guidance. That definition is that “exceptional” means circumstances in which refusal of the application could or would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. Whilst this definition makes sense in the context of the “family and exceptional circumstances guidance” (which is not the guidance specific to this route) I consider it cannot be the definition of “exceptional circumstances” in this Appendix bearing in mind CNP 3.4 which says that where the decision maker is not satisfied that there are exceptional circumstances under CNP 3.3 then consideration must be given to whether refusal of the application would be a breach of Article 8 ECHR. If exceptional circumstances are read in CNP 3.3 as meaning circumstances which breach Article 8 ECHR, then CNP 3.4 would be inherently contradictory as it would only be where the decision maker was not satisfied that the decision breached Article 8 ECHR that consideration would be given to whether refusal breached Article 8 ECHR. That does not make sense.
56. I consider that in CNP 3.3 the decision maker is listing circumstances of a type which the respondent by virtue of her policy considers are so exceptional that leave should be granted despite the applicant not meeting the other eligibility requirements. I agree with Ms Zapata Besso that the matters listed in CNP 3.3 (c) and (d) require Article 8 family life between an applicant and sponsor. The other factors, I find, relate to the applicants not having parents with them and not reasonably being expected to form Article 8 family life with another relative outside the UK. I consider the category of exceptional circumstances described in CNP 3.3 is one to cover children who are without parents and whose only Article 8 family life with an adult is and could be with a relative inside the UK, even if that relative cannot meet maintenance and accommodation requirements. That it would be the respondent’s policy to allow the admission of such children is not surprising, given that the family reunion immigration rules at the relevant time permitted entry for family reunion to the children of refugees who had formed part of the family unit before coming to the UK, even if such children could not be supported in the UK without recourse to public funds.
57. The appellants I consider fall within that category of exceptional circumstances as I have described it. Their only family life within the meaning of Article 8 with a relative is with UK based relatives and it is not reasonable to expect them to look to the uncle in New Zealand to enjoy family life. They are orphaned. The uncle and aunt the second appellant saw as parents have also died. The first appellant’s family life with the sponsor is particularly strong because they grew up in the same household and were separated when the sponsor came to the UK to seek asylum and would otherwise still have been living together. The sponsor has kept in touch with both appellants and the sponsor and his brother have been to see them in Pakistan. The sponsor clearly sees it is as his responsibility as the older brother and the oldest surviving member of the household to look after his younger brothers the appellants as best he can. They cannot live in the same country anywhere other than the UK; indeed I have accepted the sponsor’s evidence that at present he and his brother have difficulties visiting the appellants. Whilst it is conceded that the appellants do not completely meet the CNP 3.3 (d) factor, I do not consider that not completely meeting one factor must be highly damaging to the overall assessment, I consider one must look at the purpose of CNP 3.3; the appellants’ circumstances in other respects go beyond some of the factors as they more than meet the CNP 3.3 (a) and (c) factors because not only do they have no parent with them, their parents are dead, the second appellant’s parental figures have also died, and the first appellant has a particularly strong family life with the sponsor.
58. I consider therefore that the appellants’ circumstances fall within the category as described in CNP 3.3 and I am satisfied that these are exceptional circumstances which would make a grant of entry clearance appropriate. As there are such exceptional circumstances, the requirements of immigration rules are met. It is accepted that Article 8 (1) is engaged, accordingly that the appellants satisfy the requirements of immigration rules means that the decision is disproportionate and breaches Article 8 ECHR (see [34] TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109). The appeal is allowed on that basis.
CNP 3.4
59. In case I am wrong about CNP 3.3 and because it formed the main part of the arguments before me, I continue to consider CNP 4.4. Before turning to proportionality, it is relevant to consider the effect that separation from the appellants is having on the sponsor.
The effect of the separation on the sponsor
60. I have no medical evidence about the sponsor’s mental health and no recent evidence about his recovery from his head injury. The social worker’s report is old, it is not medical evidence, and although she said that the sponsor’s recovery from the head injury had stalled, which she opined was potentially linked to the high levels of stress he was experiencing, fortunately the sponsor now does seem to be recovering. When he made the witness statement signed in June 2024, he could not work and was not even able to complete the form for the disability element of Universal Credit. By contrast, when he made his recent witness statement, he was able to work part-time as a Deliveroo driver, his headaches and sleep problems were better, although he still had serious issues with his memory and difficulties focussing.
61. In his recent statement the sponsor explains that he has experienced depression in the past but he tries to keep himself busy, but it is painful and stressful for him to be separated from the appellants, when he hears about their difficulties if he doesn’t stop himself he becomes overwhelmed by fears and worries. He feels he cannot have a future without the appellants as they are part of him, and he tries to keep himself going by thinking about how he can help them when they come to the UK. It was evident at the hearing that the sponsor was understandably very distressed by the appellants’ situation and worries about what will happen to them. He worries not only about the risk of their being found and sent back to Afghanistan, but also because he has no family connection with the friend, so although there have been no difficulties so far, he cannot rely on the cultural ties of obligation within extended family groups. It must be recognised that his distress is against the background where he himself was captured by the Taliban when he was about 16 and tortured to threaten his father. Having escaped and being sent to safety with his maternal uncle he returned home with his uncle two weeks later to recover the first appellant and bury their mother and sister killed by the Taliban when they abducted his father. It is understandable that the sponsor would worry that the appellants would suffer in the same way that he did if they are returned to Afghanistan.
What weighs against the appellants in the Article 8 balance?
62. Under the provisions of section 117A of the Nationality, Immigration and Asylum Act 2002 where a court or tribunal is required to determine whether a decision made under the immigration acts would be unlawful as breaching a person’s right to respect for private and family life, when considering whether the interference with private/family life is justified under Article 8 (2), the court must in particular have regard to the considerations listed in section 117B.
63. The application of section 117B (2) and (3) is not in dispute. Those subsections provide that it is in the public interest and in particular in the interests of the economic well-being of the UK that those who seek to enter in the UK are able to speak English and are financially independent. That is because such people are less of a burden/not a burden on taxpayers respectively and are better able to integrate into society.
64. What is in dispute is how I apply section 117B (1), that the maintenance of effective immigration controls is in the public interest, in the particular case. Mr Simpson says that I must take it as a factor in favour of the public interest that the appellants do not meet all the requirements of CNP 3.1 – 3.3. Ms Zapata Besso says I should not; the appellants have not accepted that they do not meet the entirety of immigration rules, she says that the way CNP 3.4 is worded means that if one comes within CNP 3.4 one would meet the requirements of immigration rules.
65. It is curious that unlike say GEN 3.2 (the similar provision within Appendix FM) which although part of the same appendix has its own sub-heading of “exceptional circumstances”, GEN 3.4 forms part of the eligibility requirements for a child to join or stay with a non-parent relative. There clearly could be circumstances in which a decision maker considering an application under Appendix CNP might have to consider an Article 8 analysis completely outside the rules. If for example, an applicant did not meet the suitability requirements of Appendix CNP, then CNP 3.4 is simply not applicable, and any Article 8 consideration would have to be wholly outside the rules.
66. Nevertheless, I do consider that if I am wrong and the appellants do not meet the requirements of CNP 3.3, then I must take into account when considering the public interest that they do not meet the specific terms of the respondent’s policies permitting the entry of those children related to refugees who are not their parents. This is because, as set out in R (on the application of Agyarko) v Secretary of State for the Home Department [2017] UKSC 11 [47] the immigration rules reflect the responsible minister’s assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8, and so when considering the public interest in the maintenance of effective immigration controls, I must consider and attach considerable weight to that policy. I do not consider that it makes a difference that the Article 8 test is also incorporated within Appendix CNP. That is simply a recognition that there are going to be circumstances, even if they are in number rare, where although the requirements of immigration rules are not met, entry clearance must be granted to avoid a breach of Article 8 ECHR. All this means is that it is put explicitly into the respondent’s policy as set out in Appendix CNP that Article 8 ECHR must be considered and if an adverse decision would breach Article 8 ECHR, then the applicant will be eligible for entry clearance. It is considered against an applicant on a provisional basis that they do not meet the requirements of the other immigration rules; if it is considered that despite this, a refusal would breach Article 8 ECHR then the respondent’s policy is that it is overall in the public interest to grant entry clearance.
67. I therefore weigh in the balance against the appellants on that basis that they do not meet the requirements of the rules, other than the potential for them meeting CNP 3.4. In particular they do not meet the requirements of maintenance and accommodation and suitable requirements for their care. As I am considering CNP 3.4 on the basis that I am wrong in my conclusions about CNP 3.3, then I must also take into account that although the sponsor sends the appellants some financial support and they are emotionally dependent on him, they are not financially dependent on the sponsor.
68. That they cannot meet the maintenance and accommodation requirements and that they will not at least initially be living with the sponsor are significant factors in the balance against them. I have regard to the provisions of section 117B (3) and there will be an additional burden on taxpayers and the local authority who will have to make care arrangements. I make it clear that I am not double counting – but it is still a significant factor against the appellants that if they enter the UK the entire cost of looking after them will be borne by taxpayers/local authority council taxpayers.
69. The appellants are also not able to speak English. I appreciate that speaking English is not a route requirement where under 18s are concerned, but I am directed by statute to have regard to this consideration and I do attach some weight to it against the appellants, because that they cannot speak English will mean that they take longer to integrate and it will be relevant for their long-term financial independence. However, there is some counterbalance to that because I accept that the sponsor intends to help the appellants integrate and that he is well placed to do so because he has learned English to the extent that before his accident, he was able to start an electrical engineering course and was also working almost full-time in a Chinese restaurant (see the neuropsychiatric report). The sponsor’s brother was in 2024 living in shared accommodation as a care leaver and was studying at college for a qualification in bricklaying and working part-time for Uber Eats. He also explained in his witness statement how he proposes to help the brothers integrate based on his experience of learning English and living in a foster family. That the brothers both are integrating into UK society is significant for their ability to help the appellants. Accordingly, whilst I do take into account against the appellants their inability to speak English, I do not consider it to have a great deal of weight in the balance against them.
70. When considering the positive features in favour of the appellants, their best interests are a primary consideration, and I have held that it is strongly in their best interests to come to the UK for the reasons I have explained above.
71. I make it clear that I do not take account in addition the risks facing them of return to Afghanistan and within Afghanistan. This is not to discount these risks, but that they are not safe where they are living is one of the main reasons it is strongly in their best interests to come to the UK. The route is not a route to enable children to claim asylum in the UK.
72. Whilst the appellants’ best interests are not paramount, they are a weighty factor, not only because they are a primary consideration, but because the purpose of the route is to allow children to join their relatives with protection status in the UK where there are serious and compelling family or other considerations. This is a significant difference between the facts of this case and the facts of IA v Secretary of State for the Home Department [2025] EWCA Civ 1516 where there was no resettlement scheme for Gaza and so no route under which those appellants could even in principle apply.
73. I also give considerable weight to the family life between the sponsor and the appellants. I give this considerable weight because as I have said above the sponsor and the first appellant would have continued living in the same household were it not for the events which caused the sponsor to seek asylum. The sponsor and the first appellant enjoyed family life together in that household since the first appellant’s birth. The appellants are orphaned and the sponsor is their older brother, and he naturally wants to take responsibility for them, for them to live in the same country as him and close to him even if they cannot live with him initially. The situation is causing the sponsor distress and concern for the appellants as I have set out above, which distress and concern is heightened because of his own traumatic experiences. The only country in which the appellants can be together for more than visits is the UK and I have found that at the moment, the sponsor is not able to visit so can only contact the appellants over the phone and internet. Further, there is a real risk that the appellants will be removed to Afghanistan, in which case there is a real risk that the family life even in the restricted way it is enjoyed now will come to an end. As I noted in the error of law decision the risk to family life is not only the stark risk that the appellants might be killed, if the appellants are living in the streets without safe shelter, regular food, or the ability to maintain communication with their relatives in the UK that would be likely to end or at least significantly disrupt family life with the sponsor.
74. I appreciate Ms Zapata Besso’s submissions that I should also take into account that were it not for his accident, which was not his fault, and which occurred after he obtained refugee status, the sponsor may well have been able to look after and maintain and accommodate the appellants. I do not consider that relevant for the proportionality balance. It is an unfortunate event for which the parties are not responsible, but it does not minimise the public interest against the appellants that they are not financially independent.
75. When taking the proportionality balance, and noting that there are strong interests on either side of that balance, I consider that the context of the rules is relevant. The context of the rules is relevant because the rules themselves consider exceptional circumstances as set out in CNP 3.3 and applicants without parents with them may be eligible even if they do not meet the requirements of maintenance and accommodation and/or suitable care arrangements. My primary findings are that the appellants meet the requirements of CNP 3.3, but if they do not because financial dependence on the UK based relative is required, the context of the rule is still relevant. This is not the same as a “near-miss” principle, but rather that the values underlying the rules are relevant (see [56] of Patel and others v Secretary of State for the Home Department [2013] UKSC 72).
76. Taking the balance therefore and weighing the appellants’ best interests and the weight I have given to the family life between the appellants and sponsor, I consider that despite the strong public interest I have identified at paragraphs 67 – 69 above, the appellants’ best interests and the family life between the appellants and sponsor mean that the consequences for the appellants and the sponsor and his brother are unjustifiably harsh. They are unjustifiably harsh because the appellants are orphaned children living in circumstances which are precarious and unsafe because of the risk of return to Afghanistan, in which case even the limited family life they can now enjoy with the sponsor and his brother is at risk. The appellants only have each other in Pakistan and the first appellant and sponsor would not have been separated if the events leading the sponsor to claim asylum had not occurred. The appellants cannot reasonably be expected to enjoy family life with any other adult relative anywhere in the world and the appellants and sponsor cannot live in the same country anywhere other than the UK. Although if I am wrong in my conclusions about CNP 3.3, there are no exceptional circumstances as defined in immigration rules, it is still relevant that the respondent’s policies recognise that there are circumstances in which children without parents can be permitted to join those in the UK with whom they have family life even if there is a burden on the taxpayer and they otherwise do not meet the policies set out in immigration rules. The balance would be very different if there were no scheme as set out in Appendix CNP.
Conclusion
77. My primary conclusion is that the appellants succeed because Article 8 (1) is engaged and the requirements of CNP 3.3 are met, but I consider if I am wrong, the requirements of CNP 3.4 are met.


Notice of Decision
The appellants’ appeals are allowed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber


23 October 2026



Annex (error of law decision)



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-002528
UI-2025-002529
First-tier Tribunal Nos: HU/64461/2023
HU/64465/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

26/05/2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

(1) SS
(2) AS
(ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms C Zapata Besso, Counsel instructed by Refugee Legal Support
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 5 February 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants and the sponsor and his brother 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 and or the sponsor and his brother. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellants are brothers, citizens of Afghanistan living in Pakistan, who were aged 14 and 15 respectively at the date of the hearing before the First-Tier Tribunal Judge (“the FtTJ”) on 20 February 2025. The FtTJ dismissed their appeals against the respondent’s refusal of their applications for entry clearance under Appendix Child staying or joining a non-parent relative (Protection) (“Appendix CNP”). The appellants were seeking to join their adult brother the sponsor and another adult brother both recognised as refugees in the UK. The appellants appeal from the FtTJ’s decision with the permission of the Upper Tribunal. The appeal was stayed awaiting the decision of the Court of Appeal in IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516.
Anonymity
2. The FtTJ made an anonymity order because the appellants were children and the sponsor and his brother were recognised refugees. She considered that the importance of facilitating the UK’s obligations under the Refugee Convention and the potential detrimental impact on the sponsor and brother and the appellants’ private lives if their identities were made known outweighed the principle of open justice. I agree and continue the anonymity order; it was not suggested to me that it should be discharged.
The FtTJ’s findings
3. The background to the FtTJ’s findings was that the respondent now accepted that the appellants and the sponsor/brother were related as claimed and that the appellants met the validity, suitability and relationship requirements of Appendix CNP. The respondent conceded in submissions that there was family life between the appellants and the sponsor/brother, and that Article 8 (1) was engaged [12]. The appellants accepted that the maintenance and accommodation requirements of Appendix CNP could not be met [13] and that they were not financially dependent on the sponsor [31]. The sponsor, born in 2000, was a vulnerable witness having suffered a moderate to severe brain injury in a moped accident which resulted in ongoing neurocognitive and neuropsychiatric difficulties [11]. The brother was born in 2005 and was living in a shared house supported by social services as a care leaver [13]. The appellants were unlikely to be approved to reside with the sponsor or his brother due to their needs and might be placed in a foster home if they arrived in the UK [13].
4. Both appellants were born in Afghanistan and the second appellant was given to an uncle to raise either in 2010 or 2013 (so when the second appellant would have been 1 or 4) and so did not live thereafter with the sponsor or with the brother who later came to the UK. The sponsor and the first appellant went together to live with a maternal uncle in 2016; the sponsor left Afghanistan in the same year and entered the UK in 2017. The first appellant left Afghanistan in 2018 to stay with a friend of the maternal uncle in Pakistan and the second appellant joined him there in 2019. The brother (who had been in a madrassa) came to the UK in 2019. The sponsor and brother arrived in the UK as children, lived in separate foster families, and have never lived together in the UK.
5. Against that background the FtTJ found, when concluding overall that the decision was proportionate:
(i) The appellants’ parents were deceased [24], and the appellants had no male relatives now living in Afghanistan [60];
(ii) Their maternal uncle made the decisions about the brothers leaving Afghanistan and made the arrangements and the decision to leave the appellants with the friend in Pakistan. He now lived in New Zealand [27]. He continued to provide some financial support to the appellants and assisted the appellants to return to Afghanistan briefly with the uncle’s friend with whom they were living to obtain taskiras in August 2024 [30] [32], [56];
(iii) The friend had been supporting the appellants for 6 to 7 years with food and accommodation and providing them with day-to-day care in Pakistan and there was no reason to conclude that the friend would deprive them of food and accommodation [32]. The food and accommodation were adequate in the context of arrangements in Pakistan [48], and the evidence was insufficient to demonstrate that the appellants’ current living arrangements could not continue [65]. Their circumstances were different from those legally entitled to reside in Pakistan, but they were equivalent to that of many thousands of Afghans living in Pakistan [65];
(iv) The only education the appellants received was Islamic education for 40 minutes to an hour after attending morning prayers at the mosque [35]. They were not attending school or receiving any form of secular education [44];
(v) The sponsor visited the appellants in Pakistan in April 2024 and the brother had visited in 2023 and they kept in contact although the FtTJ found the brother’s evidence about the extent of contact between the brother and the appellants likely to be exaggerated [41] [47];
(vi) The appellants expressed fears about the future, missing the sponsor and their brother who they said gave them lots of emotional support and they said they wanted to live with their family and go to school [50];
(vii) As undocumented children with no legal right to be in Pakistan, the appellants were in legal limbo and in a precarious position akin to that of many thousands of Afghans in Pakistan. There was a possible risk that they would be returned to Afghanistan by the Pakistan authorities [62];
(viii) The proposal was that the appellants would be transplanted from reasonably stable arrangements in a familiar cultural and linguistic environment to a country and culture with which they were wholly unfamiliar and where they did not speak the language, to live with persons unknown to them although the sponsor and brother intended to provide them with emotional support to assist with their integration [68];
(ix) It was likely to be in the appellants’ best interests to enter the UK, although that conclusion was not immediately obvious or easily reached [69];
(x) It was not for the FtTJ to decide protection claims. It was acknowledged that the sponsor and brother were recognised as refugees on the account their father was a Hezb e Islami commander opposed to the Taliban. It did not automatically follow nor was it to be inferred that the appellants would inevitably be recognised as refugees [73]. The appellants and the maternal uncle had assessed it to be sufficiently safe to visit Afghanistan to obtain taskiras [74]. The CPIN acknowledged risks to unaccompanied children in Afghanistan, but the risks were general in nature. There were possible risks faced by unaccompanied children in Afghanistan, but the respondent’s submission was accepted that the evidence available did not demonstrate how the appellants were directly affected by those circumstances [75];
(xi) The FtTJ did not dismiss the emotional burden that worry and feeling bad for the appellants put on the sponsor, but there was no medical evidence to indicate the sponsor’s mental or physical health was affected beyond that. There was no medical or any other evidence to suggest any particular impact on the brother or that he could not continue with his private life [76][90];
(xii) The decision did not represent any real interference with existing family life as remote contact could continue, and the sponsor and brother could visit the appellants from time to time, but they could not realistically enjoy family life together in Pakistan or Afghanistan due to the sponsor and the brother’s position as refugees. The family life was not long-established, and the interference was with the ability to more fully re-establish and develop family life together in the future [81];
(xiii) Due weight was accorded to the strong and weighty interest of the maintenance of effective immigration controls [84], and the appellants had not met the eligibility and other specific requirements of the immigration rules [86];
(xiv) There was no indication that the appellants had any particular ability in English [87];
(xv) The appellants would be financially dependent and likely to have recourse to social and welfare provision; the factor that they were not financially independent weighed against them [87] – [89];
(xvi) The FtTJ referred to the limited nature of the evidence addressing consequences for the sponsor and his brother if the appellants did not enter the UK. Some weight was given to the fact that further family life would not be developed in the UK and there were barriers to the establishment of family life of physical proximity outside the UK. Family life would continue as it was at present through remote communications and any visits that the sponsor/brother might make [92];
(xvii) Account was taken of the possible risk of return to Afghanistan and the possible risks for unaccompanied children in Afghanistan. No conclusions could be reached as to whether there was any real risk of persecution or serious harm for the appellants as it was not a protection appeal [93]. The appellants had not provided any evidence to suggest that they were at imminent risk of their current adequate living circumstances altering [94].

Grounds and their development in submissions
Ground 1
6. When granting permission UTJ O’Brien summarised ground 1 “in a nutshell” that “the judge accepted that the appellants’ undocumented presence in Pakistan was precarious and subject to a hostile environment, but did not then consider the risk of refoulement or the consequential risk of Article 3 treatment in Afghanistan when assessing their accepted family life case.”
7. His reason for granting permission on ground 1 is also helpful – “It is arguable that, in finding that maintenance of the status quo would not involve any real interference with existing family life [81], and that the evidence was insufficient to show that the appellants’ current living arrangements could not continue [94], the judge reached findings inconsistent with their apparent acceptance of risk or failed to give adequate reasons for resolving the potential inconsistency. It is also arguable that the judge in restricting themselves from reaching any findings or conclusions on risk [93] left out of account matters material to her assessment of the human rights appeal”.
8. The appellants’ skeleton argument submits that it was not in any apparent dispute at the hearing that if the appellants were without family support in Afghanistan that they would be at risk. The respondent’s case was that even if the FtTJ accepted their parents were deceased, they would be better off with their current adequate care arrangements in Pakistan which could continue rather than joining the sponsor in the UK. The FtTJ’s finding that the evidence was insufficient to demonstrate that the current living arrangements could not continue was at odds with the earlier finding that the appellants had no right to be in Pakistan and the authorities were hostile. They were at ongoing risk of refoulement which put them at ongoing risk of their living arrangements in Pakistan ending. The FtTJ appeared to consider this irrelevant because other young Afghans were in the same position, but that did not make the risk any more acceptable in Article 3 terms, or less of an interference with family life. She simply did not consider the sustainability of their current living arrangements in terms of the risk of refoulement. That they were not at imminent risk of their circumstances altering was too high a test for Article 3 and was at odds with the earlier findings about the position of the Pakistani authorities.
9. The FtTJ gave no explanation why she accepted that the evidence available did not demonstrate how the appellants were directly affected by the risks faced by unaccompanied children, as the respondent’s only remaining submission in the review was that the appellants could continue to live in Pakistan. The FtTJ had not explained why the appellants would not be affected by the risks facing lone children if they were refouled to Afghanistan.
10. The proportionality exercise required the FtTJ to take account of all relevant circumstances and she should have applied the risk of refoulement and its consequences to the proportionality exercise, because it went to the core issue of whether family life could continue or be extinguished or whether it could develop in the future. She had left out of account material matters. That the risk to the appellants’ lives and safety would extinguish family life with the sponsor was a key point, because the finding that family life could continue by remote means and occasional visits was the sole reason why the FtTJ concluded that refusing entry clearance would not entail any real interference with family life.
11. Ms Zapata Besso stressed at the hearing the point that the FtTJ had wrongly concluded that the maintenance of the status quo would not amount to a real interference with family life. The continuance of the status quo was inconsistent with the risk the FtTJ found. The finding at [65] that the evidence was insufficient to demonstrate that the current living arrangements could not continue was the basis for the finding at [81] about remote contact continuing. The FtTJ agreed with the appellants on most aspects of the case but inexplicably went on to find that remote contact could continue. The only reasoning was at [65] and the lack of imminent risk (at [94]) came out of nowhere. There was no dispute in the respondent’s review that the appellants as unaccompanied children would be at risk on return to Afghanistan. She submitted that the FtTJ simply had not considered risk properly.
12. In response, Mr Terrell took me to relevant paragraphs of IA. He submitted that the first sentence of [65] made a distinct point about the evidence being insufficient to demonstrate that the current living arrangements could not continue. The FtTJ must have been considering this on the assumption that the appellants would not be removed. The FtTJ was not dealing in that paragraph with the risk of return to Afghanistan, that was [62]. She acknowledged there that there was a risk but was saying that it was difficult to quantify because the children had been able to enter Afghanistan and there was a lack of detail as to how they had crossed and recrossed the border. It meant that if they were forcibly removed, they could return.
13. The FtTJ dealt expressly with risk at [93] he submitted. She did not ignore it. Too much was read into the point at [94] about imminent risk. She was saying that there was a risk which was not trivial, but neither was it imminent. Her findings at [81] were relevant to interference and she did not need to go into the risk of death at that point. The FtTJ had found there was a possible risk to the appellants in Afghanistan as unaccompanied children at [75] and taken that into account at [93]. It was not clear how the risk applied to the appellants, nothing was presented as to how the risk would materialise, and the risk they would face if they returned to Afghanistan was simply unknown.
14. Ms Zapata Besso responded that the FtTJ had always recognised that the children had no right to be in Pakistan. That the border was porous did not mean there was not a risk to the children and that was not what the FtTJ was saying. That the children crossed the borders to obtain a taskira did not undermine the risk to unaccompanied children in Afghanistan. [65] is said to be cured if it is read with [64] but if there were a risk and it was continuing the FtTJ should have assessed the impact of that risk. At the very least the FtTJ did not rationally or lawfully consider the risk in the context of Article 8 interference, and she carried her conclusions about the lack of interference with family life and its ability to continue remotely into her current findings. She had simply failed to assess the impact of the risk and how it affected existing family life. She had not considered it in terms of the interference at all. It was difficult to see how a serious risk would not amount to an interference with family life. The FtTJ did not conduct an impact analysis at all in the way Al-Hassan & Ors (Article 8; entry clearance; KF (Syria)) [2024] UKUT 234 suggested such analysis should be conducted.
Ground 2
15. Ground 2 as pleaded averred failure to consider the appellants’ best interests and the impact of refusal of entry clearance on them in the light of the risk to them and failure to consider the social worker findings in that regard. It was said that as the FtTJ failed properly to make findings about risk, she failed to conduct a proper best interests analysis and she failed to have regard to the independent social worker’s findings about the effect on the appellants of the risk of removal to Afghanistan and of separation from the sponsor and that it was crucial to their wellbeing that they reunite with the sponsor in the UK.
16. The skeleton argument adds to the grounds by saying that the FtTJ also failed properly to assess the risk facing the appellants in the context of its impact on the sponsor. She only considered the impact of the status quo being maintained and did not consider the trauma the sponsor had suffered in Afghanistan as relevant to the current and prospective impact on the sponsor of the risk facing the appellants (the relevant ISW findings are set out at [27] of the skeleton).
17. At the hearing, Ms Zapata Besso submitted that ground 2 was about the impact on the sponsor and the FtTJ had failed properly to take account of the same – [76] should be taken together with [92] and the FtTJ had only considered the impact on the sponsor of the status quo. She submitted that post IA, the specific relevance of the children’s situation was its impact upon the sponsor.
18. Mr Terrell submitted that it was bit of a stretch to say that the grounds of appeal were a challenge to how the FtTJ had dealt with the sponsor’s mental health as opposed to the appellants’ mental health. The FtTJ had rationally, at [76] considered the impact on the sponsor and his brother in the light of the lack of medical evidence and she had earlier, at [51] explained why she placed only limited weight on the social worker’s report and her opinion.
Discussion and conclusions
Ground 1
19. I agree with Mr Terrell on many points. The FtTJ’s decision must be read as a whole. When it is so read, it can be seen that at [65] the sentence “I find that the evidence is insufficient to demonstrate that the appellant’s current living arrangements cannot continue” is in the context of the submission recorded at [64] that the friend said that he would struggle to support the appellants much longer, rather than any findings about the risk of return. It was also right to say that there was no evidence that the appellants faced any imminent action to turn them out of the home they were currently living in. The conclusion that their circumstances were equivalent to many thousands of Afghans living in Pakistan was relevant to the lack of education and the problems for their living circumstances caused by the precarious nature of their stay, it was not a conclusion that there was no future risk of refoulement to Afghanistan or that the risk was irrelevant because others were likely also to suffer that risk.
20. The FtTJ’s conclusion on the proportionality balance at [94] that the appellants had not provided any evidence to suggest that they were at imminent risk of their current living circumstances altering was primarily about their current living circumstances altering, rather than the risk of refoulement. She had referred to the risk of return at [93] and acknowledged the possible risk of return, but insofar as imminent risk of current living circumstances altering could be seen as referring to the risk of returning rather than to the appellants no longer being able to live with the friend, the FtTJ was right, there was no evidence of imminent risk, for example it was not suggested that the appellants had been served with any papers requiring them to leave or they had escaped an attempt to remove them.
21. The FtTJ was clear at [62] that there was a possible risk that the appellants would be returned to Afghanistan. However I disagree with Mr Terrell that she was saying that the risk was difficult to quantify or that if the appellants were removed they could return. She did note that she could not disregard that the appellants had been able to exit and re-enter, but she did not use that to make a positive finding that they would be able to return. Her comments were part of her overall evaluation of the case, rather than specific findings that the appellants would be able to return if they were removed. If she had meant to make such findings they would have been inadequately reasoned bearing in mind that although there was no real detail about how the appellants crossed the border or their stay in Afghanistan, the evidence was that they travelled with the friend rather than on their own or with strangers as would be likely to be the case if they were removed [56]. Furthermore, that the appellants were apparently easily able to return when they travelled with an adult does not mean that they would be able to return easily on their own or before harm came to them and the FtTJ would have had to consider all those points if she was doing more than saying that she could not ignore that the appellants were able to travel backwards and forwards.
22. Having concluded that there was a possible risk of refoulement, the FtTJ then considered the context in which she had to consider the risk. She did not at that stage suggest that she could not take account of risk, she concluded it was relevant to the overall assessment of the circumstances, but she correctly noted that it was not for her to directly decide protection claims [70]. She continued to conclude that it could not inevitably be said that the appellants were at risk in the same way as the sponsor and his brother because of their father having been a Hezb e Islami commander. Their situation was different, they were young children when their father was killed, the second appellant had not grown up with his biological father, and the appellants had recently visited and made contact with the local authorities to obtain a taskira which named their father [71] – [74]. The appellants may disagree with that conclusion, but it is perfectly well reasoned.
23. I do however find her conclusion at [75] problematic. The FtTJ acknowledges based on the CPIN that there are risks to unaccompanied children in Afghanistan but says that she accepts the respondent’s submission that the evidence available does not demonstrate how the appellants are directly affected by these circumstances. As Ms Zapata Besso points out, there is nothing in the respondent’s review which does other than acknowledge the country situation in Afghanistan regarding undocumented children and the treatment of undocumented Afghans in Pakistan; after that acknowledgement the review then continues to set out the respondent’s position that there is no basis for someone to travel to the UK to claim asylum and the UK is not bound to consider asylum claims from the very large number of people overseas who might want to come to the UK. It is not clear what the respondent’s representative may have submitted at the hearing, but the FtTJ had already found that the appellants had no male relatives in Afghanistan and if the appellants are returned to Afghanistan it is difficult to see how they would not be unaccompanied children and subject to the risks to which those children are subject and thereby directly affected. There is no explanation why the FtTJ concludes otherwise, and I conclude that this part of her decision is inadequately reasoned.
24. The FtTJ did acknowledge “the possible risks for unaccompanied children in Afghanistan”. Although she said she took account of that, she did not explain how she took account of it. She must have taken account of the risk to some degree when considering the children’s best interests, as part of her reason for finding that the children’s best interests lay in entering the UK was that they would have the sense of a real place of safety in the UK [69], but she did not decide whether the appellants would in fact be at real risk of persecution or serious harm [93] and, significantly and, I conclude, fatally, she considered (without further reasoning) that the decision did not represent any interference with existing family life because remote contact could continue and the sponsor and brother could visit the appellants from time to time [81] [92] and as there was no long established family life the interference was interference with the ability to more fully develop family life in the future. The FtTJ simply did not factor into that analysis that she had concluded that there were at least possible risks to the appellants. She should therefore have considered that there was at least a risk that family life simply could not continue or would be severely interrupted. She did not have to consider it on the basis that the appellants might be killed, the appellants living in the streets without safe shelter, regular food, or the ability to maintain communication with their relatives in the UK, would be likely to end or at least significantly disrupt family life.
25. Her failure to consider that family life already existing was at risk of not being able to continue at all or be significantly interfered with, as opposed to just not being further developed, was a material error. It was material because the interference caused with family life was being weighed against the public interest and so if the interference were not correctly described the proportionality balance could not be properly taken.
Ground 2
26. Ground 2 as pleaded relates to the appellants rather than the sponsor and I consider it should not be extended without an application to amend. However it follows from my earlier findings that the FtTJ’s conclusions about the best interests of the children were not properly reasoned because she did not properly reason the risk that the appellants would be returned to Afghanistan as unaccompanied minors and as a result suffer persecution or serious harm. Whilst the FtTJ did find that the appellants’ best interests lay in coming to the UK, how strongly they lay in coming to the UK could clearly be material for the proportionality balance and could be material even though the focus is on the sponsor following IA.
Conclusion
27. Although the decision was prepared thoughtfully and in great detail by the FtTJ it must be set aside. A number of her careful findings can be preserved as set out below.
28. There may still be some fact finding needed, because it is more than a year since the last hearing and the appellants may wish to provide more up to date evidence. Nevertheless, having considered the case of Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597 at [50] – [60] which references paragraphs 7.2 and 7.3 of the Practice Statements and paragraph 3.1 of the Practice Directions, I conclude the decision should be remade in the Upper Tribunal. The ordinary expectation and the general rule of practice is for the Upper Tribunal to retain the decision rather than remit it. Bearing that in mind I consider the extent of the fact-finding necessary. There is no reason to depart from the judge’s findings that the appellant’s parents are deceased, nor from her conclusions about the factual background pre application, nor from her conclusions about the financial support and decision-making for the appellants and contact between the appellants and their brothers in the UK as it was at the date of the hearing before her, nor from her conclusion about the appellants’ schooling, education or living circumstances as at the date of the hearing before her, nor about the details of the appellants’ journey to Afghanistan in August 2024. There will be some more facts to be found, but the main issues will be consideration of the best interests of the children and taking the proportionality balance. Although there may be some contested evidence, given the FtTJ found the sponsor to be a credible witness, the arguments are likely to turn more on the conclusions to be drawn from the facts found, than the facts themselves. In those circumstances, I consider it perfectly appropriate for the appeal to be remade in the Upper Tribunal.
29. Given the length of the preserved findings, I set them out here. The following findings of the FtTJ will be preserved:
(i) That the appellants’ parents are deceased [24];
(ii) About the pre-application background [21] – [27];
(iii) About the decision making and financial support for the appellants up to and including the date of hearing [30] – [34];
(iv) That the sponsor was found to be a credible witness [35];
(v) That the brother was likely to have exaggerated the extent of his contact with the appellants [41];
(vi) That the appellants were not at the date of hearing attending school or receiving any form of secular education [44] but were in receipt of Islamic education and engaging in social interaction most days [45] – [46];
(vii) That at the date of the hearing the appellants had food and adequate accommodation or shelter arrangements [47] – [48], their essential living needs were being met, there was no real evidence of neglect and no suggestion of any abuse and although the arrangements were precarious from the perspective of their legal position in Pakistan they had experienced a period of relative stability in living with the friend and his family for over five years [64]. There was no reason to conclude that the friend would act to deprive the appellants of food and accommodation [32];
(viii) That the sponsor provided the appellants with emotional support, had paid for the brother to visit during 2023 and had visited himself in April 2024 [47];
(ix) That at the date of the hearing the sponsor would not be providing a home for his brothers, living with them or in a position to provide any material financial support [55] and they would likely be living within foster families or other care arrangement and not necessarily with anyone with any familiarity with their cultural and linguistic background [66];
(x) About the appellants travel from Pakistan to Afghanistan in August 2024 [56];
(xi) That at the date of the hearing the appellants were in reasonable physical and mental health for their age, they valued the emotional connection and contact with the sponsor and brother, and they wished to be reunited to develop and strengthen those relationships [64]. They would have the emotional support of the sponsor and brother to assist with their integration on coming to the UK [67];
(xii) The appellants did not speak English [66].

Notice of Decision
The First-Tier Tribunal’s decision is set aside for material error of law.
The appeal will be remade in the Upper Tribunal.
The findings at [29] above are preserved.
Directions
The remaking hearing will be listed with a time estimate of four hours. It will be listed bearing in mind the availability of the appellants’ counsel.
A Pashto interpreter will be provided.
Either party is at liberty to file and serve further updating evidence before the remaking hearing, such evidence to be filed and served at least 14 days before the remaking hearing.


A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber


30 April 2026