Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002612

First-tier Tribunal No: HU/53782/2024
LH/08207/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 September 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

SYED MUHAMMAD ASAD KHAN
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the Appellant: Ms Renfrew of Counsel, instructed by MaxLaw ltd.
For the Respondent: Mr Wain, Senior Home Office Presenting Officer.

Heard at Field House on 15 August 2025

DECISION AND REASONS
INTRODUCTION
1. The Appellant, a national of Pakistan, appeals against the Decision of First-Tier Tribunal Judge R. Woods, promulgated on 30 January 2025 (“the Decision”), dismissing the Appellant’s appeal against the Respondent’s decision dated 7 March 2024 (“RFRL”), refusing his application for entry clearance, dated 10 January 2024.
BACKGROUND
2. In summary, on 10 January 2024 MaxLaw Solicitors submitted an online entry clearance application for the Appellant on the basis that he was the non-British child of his Sponsor father (“S”) who had settled status in the UK.
3. On 7 March 2024, the Appellant’s application was refused by reference to Immigration Rule 297 on the following basis:

• [297] The Appellant is not related to S as claimed because the Appellant’s birth certificate is an unreliable document.
• [297(i)(d)] The Appellant’s mother is not deceased as claimed because the death certificate is an unreliable document.
• [297(i)(f)] There are no serious and compelling family or other considerations which make the Appellant’s exclusion undesirable.
• [297(v)] There is insufficient evidence to show that there will be ‘adequate’ maintenance for the Appellant, Sponsor and any other dependants without further recourse to public funds.
• The Appellant does not enjoy family life with the Sponsor and therefore the Appellant cannot succeed under Article 8 ECHR outside the immigration rules.
4. It is to be noted that at the time of the RFRL the ECO had not raised “sole responsibility” for the purposes of r.297(i)(e).
5. On 3 April 2024 the Appellant submitted an in-time application to the FTT to appeal the RFRL.
6. For the purposes of our decision, we note that the Respondent served her hearing bundle on 31 May 2024, and in response to Tribunal directions dated 31 May 2024, on behalf of the Appellant, MaxLaw Solicitors served a hearing bundle and ASA on 28 June 2024. In this regard, it is to be noted that the ASA at [12], identified the following matters to be in dispute:

i. Has the Respondent properly considered all the relevant evidence.
ii. Is the Appellant the biological son of the sponsor.
iii. Has the relevant test been considered in line with the case law and IDI Guidance
iv. Is the Appellant’s Father credible in relation to his claim to have sole responsibility
v. If not, are there any compelling reasons which make exclusion undesirable
vi. Best Interests of the Child
vii. Article 8 and whether there are exceptional circumstances
7. In a Respondent’s Review dated 6 September 2024, the ECO maintained the position set out in the RFRL and rejected the new issue of sole responsibility, as raised in the ASA.
8. On 30 January 2025, the Appellant’s appeal then came before FTIJ Woods.
DECISION OF FIRST-TIER TRIBUNAL JUDGE R. WOOD
9. We begin by noting that the Appellant was professionally represented at the FTT by Mr S Bellara, who is recorded as a Solicitor. However, it is clear from the MyHMCTS portal that Mr Bellara is a Barrister at 5 Points Chambers and was instructed by MaxLaw Solicitors for the purposes of the FTT hearing.
10. In terms of the issues before the FTT, at [7] of the Decision, Judge Wood confirms that the HOPO conceded at the hearing that the issue of relationship was no longer in dispute. Judge Wood further records at [6] that the following agreed issues remained in dispute:

i. whether the sponsor had sole responsibility for the upbringing of the appellant; or
ii. whether there were any serious and compelling family or other considerations which made exclusion from the UK undesirable; and
iii. whether the appellant will be adequately financially maintained by the sponsor without recourse to public funds; or
iv. whether there were exceptional circumstances for granting leave to enter under article 8 of the Convention outside of the rules.
11. For the purposes of the pleaded grounds of appeal before us, we note the following record of the Sponsor’s oral evidence and the observations of Judge Wood:
[9] “[……] The Sponsor suggested that he had applied at the same time for his other children, and that their applications had been allowed. The Appellant’s was refused. This was not a subject which was addressed further by either party at the hearing”.
12. At paragraphs [19] – [36], Judge Woods then makes the following findings in relation to immigration rule 297:
[28] The FTIJ finds that the Appellant’s mother died in 2017, for the purposes of r.297(i)(d).
[32] The FTIJ finds that the Sponsor has “sole responsibility” for the Appellant, for the purposes of r.297(i)(e).
[36] The FTIJ finds that the Appellant is unable to meet the maintenance requirements of r.297 (v).
13. At paragraphs [37] – [48], the FTIJ then considers the Appellant’s appeal under Article 8 ECHR outside the immigration rules and makes the following salient findings:
[40] – [41] Notwithstanding that the Appellant is now an adult, he enjoys a Family Life with the Sponsor which is capable of engaging the operation of Article 8 ECHR.
[42] The issue before the FTT is whether exclusion of the Appellant from the UK is proportionate.
[43] The immigration rules are not met.
[44] The Best Interests of the Appellant are to be with his father, which carries significant weight.
[45] The Appellant currently lives in a sufficiently safe and stable environment.
[46] Family life with the Sponsor can continue as it has done since 2006/7 through remote means and visits. The Sponsor chose to carry on with this arrangement even after his wife died in 2017.
[47] “Alternately, the evidence satisfies me that there is insufficient reason why the sponsor could not return to Pakistan if he wished to continue with family life within the same country. I am told that the sponsor has a wife in the UK, and a child (the appellant’s twin sibling). I was not provided with the immigration status of either. Neither was I told when either came to the UK. The sponsor’s witness statement is entirely silent on the issue, as is the skeleton argument, which does not really address the question of article 8 outside of the rules at all. The sponsor is a national of Pakistan who came to the UK in 2006/7. He will remain familiar with the culture and language in Pakistan, and clearly still has family there. So he will not be isolated, and neither will his wife or child (now an adult). There is insufficient reason why the sponsor would be unable to return to Pakistan and find work, and accommodation. In short, I am satisfied that the sponsor can return along with his wife and son in order to continue with family life in Pakistan.”
[48] Exclusion of the Appellant is proportionate.
14. Given these findings of fact, Judge R Wood dismissed the Appellant’s appeal.
GROUNDS OF APPEAL AND GRANT OF PERMISSION
15. On 13 March 2025, in 4 grounds of appeal settled by Ms Redshaw of Counsel, the Appellant applied for permission to appeal the Decision of FTIJ Wood. In this regard it is relevant to note that the grounds as originally pleaded did not challenge the finding that the Appellant could not meet the maintenance requirements of r.297(v).
16. On 7 June 2025, FTIJ Mills granted permission to appeal on grounds 1 – 3 but refused permission to appeal on ground 4.
17. In summary, grounds 1 – 3 argue as follows:
Ground (i): Procedural Fairness/Failure to Consider Material Facts
The FTIJ proceeded in a procedurally unfair way by failing to ensure that the issue of the Appellant’s twin’s successful application for entry clearance was ventilated before him. This was a matter that calls into question the lawfulness of the Respondent’s RFRL, which in turn “materially affects the viability of the Judge’s decision to dismiss the appeal.”
Ground (ii): Respondent’s Duties
The Respondent failed to comply with her duties of disclosure and to not act in a way which could mislead the Tribunal contrary to Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) at [35].
The Respondent knew that the twin’s application for EC, which was made at the same time as the Appellant’s, had been granted, but she failed to address this at any time. The position taken by the Respondent in the RFRL and the Review conflicts with this uncontentious fact.
In this regard the Respondent maintained her position that the Appellant was unrelated to S; that the Appellant’s mother was not dead; that it was in the Appellant’s best interests to remain in Pakistan; that S had not explained his failure to make an application straight after his wife’s death. It was unlawful for the Respondent to maintain this position; the Respondent failed to act fairly; and she failed to ensure that the Tribunal was not misled
The Respondent failed to produce within her hearing bundle the documents submitted in support of the Appellant’s application for EC, contrary to FTT Procedure Rule 23.
Ground (iii): Mistake of fact giving rise to unfairness
In the alternative, the FTT decision is vitiated by a mistake of fact giving rise to a real risk of unfairness and injustice. In this regard the Appellant meets the tests enunciated at [66] of E and R v Secretary of State for the Home Department [2004] EWCA Civ 49.
18. There was no rule 24 reply.
19. The matter now comes before us to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If we find an error, we must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, we must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
20. Upon discussions with the representatives, it was confirmed that we had before us an Upper Tribunal bundle consisting of 380 pages (“SB”) and an Appellant’s Supplementary Error of Law Appeal bundle consisting of 67 pages (“AB”).
21. Upon hearing submissions from Ms Renfrew for the Appellant and Mr Wain for the Respondent, we indicated that we would reserve our Decision and provide that in writing with our reasons. We now set out our reasoning and Decision as follows.
ERROR OF LAW HEARING
APPLICATION TO ADMIT EVIDENCE NOT BEFORE THE FTT.
22. As is evident from grounds 1 and 2, they allude to evidence of the Appellant’s twin’s successful application for entry clearance. As set out above, the evidence before the FTT of this “fact” was an unchallenged statement by the Sponsor to this effect. Neither party’s bundles before the FTT contained any documentation from the twin’s EC application or his subsequent grant of LTR. Equally, ground 2 also relies upon a failure by the Respondent to include within her bundle, documentation submitted in support of the Appellant’s entry clearance application.
23. The suggestion under grounds 1 and 2 therefore appears to be, that in the absence of the twin’s EC application and grant being fully ventilated by the FTIJ or the Respondent, and in the absence of the documentation accompanying the Appellant’s application being served, the Appellant has suffered procedural unfairness. In order to address this evidential lacuna, and in order to establish the mistake of ‘fact’ alleged under ground 3, the Appellant has now submitted a rule 15(2A) application, which includes the missing documentation.
DISCUSSION
24. At the outset of the hearing, we indicated to Ms Renfrew that it appeared to us that although ground 3 was articulated as an alternative to grounds 1 and 2, it was necessary for Ms Renfrew to make her rule 15(2A) application first by applying the principles in E and R, before addressing us on grounds 1 and 2. We considered that if she did not, counsel risked transgressing into giving evidence on documentation that was neither before the FTT or us.
25. In E and R v Secretary of State for the Home Department [2004] EWCA Civ, as considered by the Presidential panel in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 00272 (IAC) at [39] – [40], Carnwath LJ confirmed that in certain circumstances a "misunderstanding or ignorance of an established and relevant fact" may give rise to a challenge on a point of law where the misunderstanding/mistake of relevant fact engenders unfairness,
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
"91. In summary, we have concluded in relation to the powers of this Court:
i) An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;
ii) Such an appeal may be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" (as explained by Lord Slynn in CICB and Alconbury);
iii) The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.
92. In relation to the role of the IAT, we have concluded
i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
26. The 3-part test for the admission of new evidence on appeal, as confirmed by Lord Denning in Ladd and Marshall [1954] EWCA Civ 1, is as follows,
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
27. In Akter, the Presidential panel explained the “exceptional factors” caveat to the Ladd and Marshall test, identified at [92(iii)] of E and R, in the following terms,
“44. Although Carnwath LJ spoke about the possibility of the Ladd and Marshall principles being modified in exceptional circumstances, we see no reason in the present case why they should be. The ability of the appellants to make fresh submissions pursuant to paragraph 353 of the Immigration Rules is, in our view, highly material to the question of whether those principles should be diluted. The existence of the "fresh claim" procedure, arising from the overarching continuing obligation of the Secretary of State to act compatibly with the ECHR up to the point of actual removal, means there is no reason to modify.”
28. In support of the contention that there had been a "misunderstanding or ignorance of an established and relevant fact" in the instant appeal, the Appellant’s rule 15(2A) application contains the following documents which are specific to grounds 1 - 2:

• A witness statement dated 4 August 2025, from Shafaqat Ali, the solicitor at MaxLaw Solicitors with conduct of the Appellant’s case.
• A Home Office letter dated 21 March 2024 confirming that Syed Touqeer Hussain Shah’s application for settlement to join his parent in the UK was successful.
• A VAF dated 10 January 2024, in the name of Syed Touqeer Hussain Shah (the Appellant’s twin), for entry clearance as the non-British child of a parent with settled status, which identifies MaxLaw Solicitors as the solicitors with conduct.
• A Government of Pakistan Family Registration Certificate confirming that the Appellant and Syed Touqeer Hussain Shah are the sons of the UK Sponsor.
• A VFS Global document summary dated 24 January 2024, showing documents that have been successfully uploaded.
▪ [Unfortunately, this document does not confirm what application it is supposed to relate to, and I note that it is dated 14 days after the Appellant’s application was submitted on 10 January 2024.]
Ladd and Marshall Question 1
29. In submissions, Ms Renfrew conceded that the first question in Ladd and Marshall was not met, that is, the Appellant’s solicitors had failed to exercise reasonable diligence in adducing this evidence.
Ladd and Marshall Question 2
30. In relation to the second question in Ladd and Marshall, i.e. would the “missing evidence have had an important influence on the result of the case, though it need not be decisive”, we find that it would not.
31. The inherent difficulty for the Appellant in demonstrating materiality is as follows:
32. First, as a matter of fact, there was evidence of the twin’s successful EC application before the FTT, but the Appellant’s representatives did not suggest that it was relevant to any of the agreed issues in dispute.
33. The Appellant was at all material times represented by MaxLaw, who also had conduct of his twin’s application for entry clearance. The Appellant’s representatives therefore knew of the twin’s successful application and grant of settled status before the Appellant’s appeal hearing took place.
34. Notwithstanding any case-management “oversight” by the Appellant’s representatives when preparing for the appeal hearing, the oral evidence from the Sponsor before the FTT was that the twin had applied for EC at the same time as the Appellant and that the twin’s application had been granted. That evidence was not disputed by the Respondent.
35. The Appellant was represented by counsel at the FTT, and he did not suggest that this evidence was in any way relevant to the Judge’s Article 8 assessment. The point was simply not argued. This therefore goes beyond issues of reasonable diligence in providing documentary evidence and comes down to the choice of the Appellant’s representatives on how they advanced the Appellant’s case. In short it undermines any suggestion of unfairness.
36. In this regard, we found that the MaxLaw witness statement dated 4 August 2025 suggests that a litigation choice was made in relation to the twin’s application. At [3] and [4] of the WS it is evident that MaxLaw decided prior to the hearing not to include any documents relating to the twins application for entry clearance, despite serving their bundle in June 2024, 1 month after the SSHD served her bundle; despite the SSHD not including the family registration certificate in her bundle; despite no concessions having been made by the SSHD in relation to the issues raised in the RFRL; and despite the SSHD not mentioning the twin in her decision.
[3] “It was understood that the Home Office was already aware of the Appellant’s brother’s circumstances, as both the Appellant and his brother had submitted applications on materially similar grounds an under the same immigration category.
[4] Based on this understanding and given the Home Office’s prior knowledge of the brother’s situation, it was not considered necessary at the time to submit that specific decision.”
37. Second, in terms of the family registration certificate, we fail to see the materiality of this evidence not being before the FTT because the SSHD conceded relationship at the outset of the hearing as confirmed at [7] of the FTT Decision.
38. Third, as we have noted above, the FTIJ accepted that the Appellant’s mother had died; accepted that there was sole responsibility but rejected that the maintenance requirements were not met. The Appellant therefore did not meet the immigration rules and there is no challenge before us in relation to the maintenance findings. We therefore find that the rule 15 (2A) evidence can only arguably be construed as material to the assessment of Article 8 outside the rules.
39. At [47], in the FTIJ’s analysis outside the immigration rules he finds that,
“I am told that the sponsor has a wife in the UK, and a child (the appellant’s twin sibling). I was not provided with the immigration status of either. Neither was I told when either came to the UK. The sponsor’s witness statement is entirely silent on the issue, as is the skeleton argument, which does not really address the question of article 8 outside of the rules at all”
40. The Appellant’s challenge of unfairness in relation to evidence not before the FTT therefore distils down to the lacuna of evidence relating to immigration status of the Appellant’s twin and when he entered the UK.
41. In this regard, the Rule 15 (2A) application contains no evidence of when the twin entered the UK. In any event, we note that the undisputed evidence before the FTIJ was that he applied for entry clearance at the same time as the Appellant, so the FTIJ will have been aware that he could only have entered the UK after the date of his application on 10 January 2024, 12 months before the FTT hearing.
42. This therefore leaves the status of the twin in the UK as the singular fact that the judge was unaware of. We find that whether the twin held ILR or LLTR, the outcome of this appeal would inevitably have been the same. This is because at [47] the FTIJ found that it would not be disproportionate for the Sponsor, the twin and the Appellant’s stepmother to move back to Pakistan to continue their family life together with the Appellant. These findings are not challenged.
43. We therefore find that the rule 15 (2A) evidence would not have had an important influence on the result of the case, as required under question 2 of Ladd and Marshall.
Ladd and Marshall Question 3
44. In relation to the third question in Ladd and Marshall, we accept that the evidence of the twin’s grant of settlement as credible, as conceded by Mr Wain before us.
45. We are therefore not satisfied that the Ladd and Marshall test is met.
Exceptional Circumstances
46. In relation to whether there are exceptional circumstances that warrant a modification of the test in Ladd and Marshall, at the error of law hearing, we indicated to the parties that we would not decide the rule 15 (2A) application until after hearing submissions on grounds 1 and 2. In this regard, we are mindful that grounds 1 and 2 also raise discreet issues of fairness, which we considered prudent to consider before ruling on the rule 15 (2A) application.
47. However, for the reasons which we set out below, we consider that grounds 1 and 2 do not disclose any unfairness or exceptionality such that the test in Ladd and Marshall should be modified.
Ground (i): Procedural Fairness/Failure to Consider Material Facts
48. Under ground 1 the Appellant argues that the FTIJ proceeded in a procedurally unfair way by failing to ensure that the twin’s successful application for entry clearance was “ventilated” before him. We wholly reject this submission.
49. We note that since the introduction of the Reform process at the First-tier Tribunal, the Upper Tribunal has given guidance in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) and TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC), which emphasises the requirement on both parties in the FTT to identify the issues in dispute and to focus on addressing the evidence and law relevant to those issues. This requires focused ASAs and Reviews narrowing the issues in dispute before the parties even enter the courtroom. As noted in the headnote guidance of Lata:
“3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.”
50. Before the FTT, there was no suggestion of the relevance of the twin’s application in the ASA - and therefore none in the Review - and no mention in submissions, despite MaxLaw being aware of the twin’s successful application before the hearing and despite the Sponsor giving oral evidence to this fact.
51. As found at headnote 4 of Lata,
“It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon.”
52. It is in this context that ground 1 infers a duty upon the FTIJ to push the parties into arguing that the sponsor’s oral evidence was relevant to an issue in dispute. In this regard we note the touchstone within the authorities, warning against a Judge developing his own case theory. For example in JK (Conduct of Hearing) Côte d'Ivoire [2004] UKIAT 00061, the Tribunal found,
“43 ... If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case.” (emphasis added)
And in XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro [2005] UKIAT 00093,
“35... the Adjudicator ... was developing his own theory of the case. This was very different from the Secretary of State's refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State's different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.” (emphasis added)
53. As we pointed out to Ms Renfrew at the hearing, whilst the Appellant suggests that an investigation by the Judge was the appropriate thing to do because it would have been beneficial to the Appellant’s case, such an investigation on the judge’s own volition may also have had the opposite effect. For example, if the Appellant’s representatives had made a litigation choice not to pursue its relevance, as to dig deeper may have revealed evidence that was not helpful the Appellant’s case.
54. We find under the circumstances that there was no duty upon the FTIJ to develop the Appellant’s case for him and no unfairness in his failure not to do so.
55. We therefore dismiss ground 1.
Ground (ii): Respondent’s Duties
56. Under ground 2, the Appellant argues that the Respondent failed in her duties of disclosure and not to mislead. In this regard it is argued that the SSHD knew of the twin’s successful application but failed to address this either in the RFRL or at the hearing. The ground specifically takes issue with the SSHD’s failure to include within her bundle the family registration certificate evidencing relationship (submitted with the Appellant’s EC application) and suggests that the RFRL was “unlawful” because the SSHD maintained that the mother was not deceased and the sponsor did not have sole responsibility.
57. First, we find any complaint about the absence of a registration certificate is misconceived because relationship was conceded by the SSHD at the outset of the hearing, as confirmed at [7].
58. Second, in terms of sole responsibility, this was not an issue raised in the RFRL, it was an issue raised in the ASA which the SSHD disputed in her Review. It was in any event an issue found in the Appellant’s favour at [32]. The complaint is therefore immaterial.
59. Third, the issue of the mother’s death was also found in the Appellant’s favour at [28]. This complaint is therefore also immaterial.
60. Fourth, the familial relationship, the mother’s death and sole responsibility are specific to the FTIJ’s consideration under the immigration rules and the FTIJ found the rules were not met on the basis that the maintenance requirements were not met. That finding is not challenged.
61. Fifth, there was no available ground of appeal before the FTT that the RFRL was not in accordance with the law. As confirmed in Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC)
(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State's decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).
(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 00629 (IAC) should no longer be followed.
62. The inherent difficulty for the Appellant is that despite the twin’s successful application being in evidence, the Appellant made no submission on its relevance to the FTIJ’s proportionality assessment under Article 8(2).
63. We would add, however, that we agree that the Respondent failed to comply with her obligations under First-tier Tribunal Procedure Rule 23(2)(g), which required her to serve “any documents provided to the respondent in support of the original application.”. However, for the reasons above, there was no unfairness and no materiality in her failure to do so in this case because relationship was conceded.
64. We also find no merit in the suggestion that the SSHD failed in her duties to disclose and not to “mislead”. The inference appears to be that the SSHD should have volunteered to the Tribunal that she had allowed the twin’s application for entry clearance and that her failure to do so was misleading.
65. In Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) the UT confirmed that no duty of disclosure exists,
21. The authorities were usefully analysed by the Upper Tribunal in CM (EM country guidance; disclosure (Zimbabwe) CG [2013] UKUT 0059. Although concerned with an asylum appeal, what CM has to say on the issue of disclosure is of general application in this jurisdiction, so far as concerns appeals:-
"36. As a starting point and in contrast to ordinary civil litigation, we recognise that there is no general requirement for disclosure of all relevant data held by the Home Secretary or indeed the Foreign Secretary in asylum appeals. These are appeals to a Tribunal governed by a statutory regime and the Tribunal Procedure (Upper Tribunal) Rules 2008 as amended. Neither these Rules nor the AIT (Procedure) Rules 2005 made provision for general disclosure."
37. In principle, the starting point was similar to that considered by the House of Lords in Abdi and Gawe [1996] 1 WLR 298 [1996] Imm AR 288 where Lord Lloyd concluded that neither the express provisions of the rules then applicable nor the interests of justice required the Secretary of State to give discovery in asylum appeals. The case was concerned with return to a safe third country, and it is clear from the speech of Lord Lloyd and the partly concurring speech of Lord Mustill that the circumscribed timetable of third country appeals was a material factor in determining what the interests of justice required.
38. R v SSHD ex p Kerrouche No 1 [1997] Imm AR 610 was another third country case; Lord Woolf said:
"While Lord Lloyd's approach must be the starting point for the consideration of this issue, there are limits to the approach he indicated in that case. The decision would not justify the Secretary of State knowingly misleading the Special Adjudicator. The obligation of the Secretary of State cannot be put higher than that he must not knowingly mislead. Before the Secretary of State could be said to be in that position, he must know or ought to have known that the material which it is said he should have disclosed materially detracts from that on which he has relied."
66. Whilst we accept that there was a duty to serve the family registration certificate under PR 23(2)(g), we do not accept that any failure by the Respondent to mention the twin amounts to misleading the Tribunal. Perhaps, if the SSHD had disputed the Sponsor’s oral evidence, that could potentially have misled the Tribunal, but she did not. The unavoidable problem is that that there was undisputed evidence of the twin’s successful application before the Tribunal and Counsel for Appellant did not suggest to the FTIJ that it was relevant.
67. We therefore dismiss ground 2.
CONCLUSION ON RULE 15 (2A) APPLICATION
68. Bearing in mind that the principal underlying the admission of new evidence at the error law stage is one of unfairness, we bear in mind the principles of procedural unfairness distilled from R – v – Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344, at [15] of MM (unfairness; E & R) Sudan [2014] UKUT 105, which includes,
(iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
69. In the light of our findings that there was unchallenged evidence before the FTT of the twin’s successful application and in the light of Counsel’s failure to suggest that this evidence was relevant, there are no exceptional circumstances such that the Appellant will suffer “serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked”. We therefore find no basis for the Ladd and Marshall test to be modified in this case and dismiss the Appellant’s r.15(2A) application.
70. Consequently, ground 3 must also fail.
CONCLUSION ON ERROR OF LAW
71. For reasons above, we find that the decision of the First-tier Tribunal does not disclose any material errors of law.
NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge R Woods does not contain any material errors of law and therefore stands.
2. The Appellant’s appeal is dismissed.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 September 2025