Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Cases Nos: UI-2025-002741
(HU/63667/2023)
UI-2024-000961/UI-2025-002745
(HU/53143/2023)
UI-2024-000962/UI-2025-002743
(HU/53141/2023)
UI-2024-000964/UI-2025-002742
(HU/53140/2023)
UI-2025-000960/UI-2025-002744
(HU/53142/2023)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

11th August 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

ZN
MN
AN
SN
MSN
(anonymity order made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr Osmani, Times PBS
For the Respondent: Mr Terrell, Senior Home Office Presenting Officer

Heard at Field House on the 7 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants and Sponsor are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellants, their Sponsor or any other member of their family likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellants are all members of the same family. They are, respectively, a mother and her four adult children. They are nationals of Afghanistan. They seek permission to enter the United Kingdom for the purpose of family reunification with their Sponsor, Mr AN. He is the husband of the First Appellant ZN, and the father of the remaining Appellants.

Case History

2. AN arrived in the United Kingdom and claimed asylum as long ago as 2001. He was subject to a ‘safe third country’ removal to Austria, and it seems that at some stage thereafter he re-entered the UK illegally, because on the 8 December 2011 he made an application to regularise his position ‘outside of the rules’. That was refused, as were a subsequent applications for leave to remain on human rights and protection grounds. On 8 August 2018 he made a fresh protection claim which eventually led to his appeal being allowed by the First-tier Tribunal on 20 April 2020. The Tribunal accepted that AN had fled Afghanistan after coming to the adverse attention of a powerful Taliban commander. The Tribunal accepted that risk to persist today. It further found that he held a well founded fear of serious harm as someone who had spent 18 years in Europe and so would be regarded with suspicion by the Taliban. AN was granted refugee status in 2020.

3. The Appellants made their applications for entry clearance on 22 April 2022.

4. The Sponsor’s children were all refused entry clearance on 22 April 2023. The reasons given for refusal letters were couched in near identical terms. In short summary the claims were refused on the grounds that as adults they had to meet the requirements of the ’Adult Dependent Relative’ provisions in the rules, which they could not. Nor did the ECO consider there to be any exceptional circumstances justifying a grant of entry clearance outside of the rules.

5. The First Appellant was refused entry clearance on 17 November 2023. In her case the relevant part of the rules was the paragraph relating to ‘Family Reunion (Protection)’. In considering that rule the ECO found no evidence to demonstrate that she and the Sponsor had been married prior to his flight from Afghanistan. Further she had failed to provide a TB certificate from an approved clinic as she was required to do by Appendix Tuberculosis of the Immigration Rules.

6. There followed some litigation in the Tribunal which need not concern me now, save to say that on 25 June 2024 the Upper Tribunal preserved a finding that the Appellants were all part of the same family, and directed that the appeals all be linked. A finding that the Second Appellant - the Sponsor’s eldest daughter MN - was formerly a judge in Afghanistan was also preserved. Evidence was provided as to her qualifications, and that she had sat in judgment in cases concerning members of both the Taliban and ISIS.

7. The linked appeals all came before the First-tier Tribunal in January 2025. In its written decision dated 11 February 2025 the First-tier Tribunal found that the Sponsor and his wife were still in a genuine and subsisting relationship, and that his real effective and committed support for his adult children meant that Article 8 was engaged. The Tribunal accepted that the Sponsor is supporting his children financially and that they speak whenever they can. They are effectively living in hiding in Afghanistan, and he is emotionally supporting them through this “very difficult” situation. The Tribunal accepted that MN in particular is at risk in Afghanistan and that there is no possibility of them being reunited with their father there, since he has been recognised to be at risk from the Taliban regime. The Tribunal further noted that the children had all been minors at the date that their father claimed asylum, and that it was no fault of theirs that there was a significant delay in him being granted refugee status. All of these factors, weighed cumulatively, led the Tribunal to find that the decisions to refuse entry clearance amounted to an unjustified interference with family life, and the appeals were allowed with reference to Article 8 ECHR and s6(1) Human Rights Act 1998.

8. The Secretary of State sought permission to appeal against the decision. Upper Tribunal Hoffman granted permission on 31 August 2025.

9. The matter came before Deputy Upper Tribunal Judge Athwal. In her decision of 10 February 2026 Judge Athwal noted that the pleadings had been overtaken by events external to this case, namely the decision of the Court of Appeal in Secretary of State for the Home Department v IA and Ors [2025] EWCA Civ 1516. In that case the Court clarified the correct approach to be taken in entry clearance appeals concerning adult family members who are not part of the “core” family. Since the decision in Kugathas [2003] EWCA Civ 31 those working in this jurisdiction had understood the test to be whether there was between the adults involved evidence of “real, effective or committed support”, that being the formulation used by Lord Justice Sedley in his judgment in that case. Having reviewed the jurisprudence the Court in IA concluded that these words had been misleading gloss, obiter at best. In fact the test was, and has always been, whether there are “additional elements of dependency involving more than the normal emotional ties”. Judge Athwal found that the First-tier Tribunal had erroneously applied the old Kugathas ‘test’ and the decision therefore fell to be set aside with no findings preserved. In those circumstances Judge Athwal did not need to address the Respondent’s grounds, which concerned the Tribunal’s approach to the proportionality balancing exercise.

10. A transfer order was subsequently signed, and so the matter now comes before me so that the decision in the appeal may be re-made.

The Hearing

11. At the outset of the hearing, I had some very helpful discussion with the parties about how we were to proceed. I was particularly concerned about whether there was in law any distinction between the position of the First Appellant, who remains the Sponsor’s wife, and that of their adult children. The decision in IA is specifically concerned with the position of adults who are not part of the “core” family, that is to say spouses and minor children. Mr Terrell very fairly agreed that her position was distinct from that of her children. There was a finding of fact made by the First-tier Tribunal that she and the Sponsor were in a genuine and subsisting relationship. Although Judge Athwal had stated in her decision that all findings were to be set aside, there was in fact no good reason for this to be the case, and there was certainly no reason to go behind that one. The Judge had referred to the now accepted position that Appellants 2-5 are the children of the First Appellant and Sponsor; the Sponsor had named her as his spouse when he first claimed asylum in 2001 and there was evidence of their continued contact including visits he had made to see her in Pakistan and Iran. None of those findings had been challenged in the Secretary of State’s appeal to the Upper Tribunal. Mr Terrell was therefore content to proceed on that basis. He noted that in the context of Afghanistan it would have been extremely unusual for the Sponsor and First Appellant to have had these four children together if they had not been married first. He was further content to proceed on the basis that a spousal relationship is ordinarily considered to be one which engages Article 8(1), forming part of the “core” family unit.

12. That being the case, the only matter I am required to consider in respect of the First Appellant is whether the decision to refuse to grant her entry clearance is, in all the circumstances, proportionate.

13. That matter having been clarified, I heard oral evidence from Mr AN, and the submissions of the parties. I reserved my decision, which I now give. I begin with some preliminary findings on the evidence given by AN, before setting out my findings on Article 8.

The Evidence

14. Where appropriate, I have referred to the evidence given by AN in my findings below. In this section I address some general submissions on AN’s credibility, made in closing by Mr Terrell.

15. AN adopted his witness statements dated 30 October 2023. In response to Mr Terrell’s first question he clarified that he is not, as stated therein, British. He is an Afghan national with indefinite leave to remain. AN confirmed, in response to questions from Mr Terrell, that his family travelled to Pakistan in 2022 in order to make their visa applications. He is not sure about how long they stayed there but he thinks only about a month. They stayed in Karachi but they were probably there illegally. His wife travelled with the kids, and as far as he is aware, she went back to Afghanistan with them. They all live there together in rented accommodation. His wife’s witness statement says that she lives in Pakistan but this must be a mistake – she only travelled there. First to get the visa, and then they all came back a year later when he went to see them there. He does not know why her statement says that. Asked why they can’t just all stay in Pakistan if its so dangerous in Afghanistan, AN said that Pakistan are rounding up and arresting Afghans and sending them back. If that had happened to them, then they would be compromised – it would put them more at risk, since they would be identified at the border.

16. AN then told me, again under cross-examination, that he has been in “continuous” contact with his family since he came to the UK. He cannot remember when they got mobile phones but before then he used to contact them when he could using land lines. Mr Terrell took AN to two passages in the documents before me which indicate that AN’s evidence on this matter, given during his asylum claim, was quite different. He signed a witness statement in 2014, and gave evidence before the First-tier Tribunal, that he was not in contact with his family, and was unaware of their whereabouts. In response Mr AN confirmed that this was correct: “I said that when there was no contact – when there were no mobiles. I forgot. It happened long ago – 20 years”. I note that this is consistent with what he says in his most recent statement.

17. Lastly Mr Terrell interrogated the Appellant’s claims about money. In respect of finances he said that he has been sending money to his family since the Taliban retook the country in 2021. Mr Terrell pointed out that the last dated remittance slip in the bundle is from 2019. Asked to consider this document AN agreed that he had sent money then but that this was not for his family – it was actually in relation to the death of his mother (I took this to mean it was for funeral expenses). He said that although all the remittance receipts had not been produced, he had been sending the money. Mr Terrell also took AN to some screenshots of Whatsapp messages between AN and someone called “Doctor [X]”. He confirmed that this was his daughter, the Second Appellant. Mr Terrell asked why there was no further documentary evidence of contact. AN said that he communicates with his family every single day – he took out his phone and offered to show Mr Terrell.

18. In closing submissions Mr Terrell relied on the inconsistencies in AN’s evidence to submit that I should approach his evidence with caution. I have considered the matters raised by Mr Terrell but for the following reasons find AN’s evidence, on matters material in this appeal, to be reliable.

19. It is not in issue that the Appellant has indefinite leave to remain. I am satisfied that where it says in his statement that he is British, this is a drafting error on the part of his solicitor rather than an attempt to mislead: it was quite plainly known to the Home Office what status AN has. Similarly, I accept that there is an error in his wife’s statement when it says that she lives in Pakistan. That suggestion is inconsistent with all the remaining evidence, and there is no reason why she would have remained in Pakistan when her children returned to Kabul. I note that the Respondent has not taken any issue with AN’s explanation that they cannot stay in Pakistan because Afghans are all being arrested and deported: country background material indicates that only a tiny percentage of Afghan nationals have been able to regularise their positions there, and that Pakistan has deported over 2.5 million people to Afghanistan since 2023.

20. In respect of the degree of contact that AN has with his family there is a clear inconsistency between him having initially told me that he has been in “continuous” contact with them since he left Afghanistan, and then retracting that to acknowledge that there was a period prior to his asylum appeal where he was not. I accept that there was some exaggeration in AN’s evidence and that in view of the situation in Afghanistan is in entirely plausible that there were periods in which he was in fact unable to contact his family, particularly before they all got mobile phones. I bear in mind that his evidence about his contact with them was accepted by the First-tier Tribunal, and found his offer to show Mr Terrell, and the Tribunal, his Whatsapp records to be a good indication that he probably is in daily contact with them as he claims. What Mr Terrell’s cross examination did highlight to me were the deficiencies in the way that these appeals have been prepared. The bundle before the First-tier Tribunal contained about 10 pages of screenshots of Whatsapp messages, and three pages of money remittance receipts. No updated evidence has been supplied for this remaking. It may be that the Appellants’ representatives have relied on the positive findings of the First-tier Tribunal in this regard, but it would obviously have been helpful, given the full extent of the remaking, to have provided up to date evidence. On balance, having regard to all of the evidence, I am satisfied that whilst there may have been periods in the past where AN was unable to contact his family, I am satisfied that there has been, for some years and particularly since the advent of readily available mobile phones in Afghanistan, regular and frequent contact. I deal with the question of financial support below under the heading ‘Family Life’, but note here that I found AN’s evidence on that matter to be straightforward, detailed and wholly credible.

Family Life

21. The Respondent’s appeal to the Upper Tribunal was brought on the grounds that the First-tier Tribunal had erred in its approach to the proportionality balancing exercise. In the hiatus between permission being granted and the ‘error of law’ hearing before Judge Athwal, the decision in IA and Others was handed down. This prompted Judge Athwal to consider, of her own motion, whether the First-tier Tribunal may also have erred in its analysis of whether a family life existed at all. Finding that the First-tier Tribunal had erred in law by applying Sedley LJ’s formulation of “real, effective and committed support”, Judge Athwal set that element of the decision aside.

22. I must therefore begin at the beginning and consider whether there is a family life for the purpose of Article 8 between the Sponsor, his wife and their now adult children.

23. I first consider the position of the children. In his submissions, Mr Terrell relied on the decision in IA and Others. The Appellants are all adults, and as such must show that they share “additional elements of dependency involving more than the normal emotional ties” with their father.

24. I begin by considering what is meant by “normal emotional ties”. In the context of children who have become adults, I find that many, if not most, parents living in states that are signatories to the Convention will continue to feel a sense of responsibility for those children. This will ordinarily involve a continuation of the love and devotion they felt for them before they turned 18. That is what we might call the baseline of normality.

25. Now I consider whether there are here additional elements of dependency involving something more than that baseline.

26. The first thing to note is that this family are not in a normal situation. This is a family which has been separated only by the forced migration of the Sponsor. The Tribunal has long recognised that this is an important factor, and a scenario to be distinguished from one where the separation was a choice made by one or more of the family members involved: see for instance AH (Article 8 -ECO - Rules) Somalia [2004] UKIAT 0002 [at 14]. I accept that given cultural practice in Afghanistan, ‘but for’ the forced migration of the Sponsor, he would still be living with his wife and children, at least until such time as his daughters were married; he would have remained responsible, as a matter of practicality, law and operative social norms for these members of his immediate family. I further accept that the Sponsor is unable to return to Afghanistan to visit his family. They remain there, as the First-tier Tribunal put it [at its §16], essentially living in hiding through fear. I have no hesitation in accepting that the ordinary ‘baseline’ bonds of love and affection that a father might feel for his adult children are greatly magnified in these circumstances. The risk to their safety and well-being is a constant source of worry for him. Conversely they look to him, and presumably these applications, as their only source of hope.

27. The second matter of relevance is the evidence of the Sponsor, accepted by the First-tier Tribunal, that he is at present the sole source of the Appellants’ income. Although AN has only managed to obtain part time employment, and remains in receipt of state funds in the UK, he sends them money “as and when” he is able. He “does not need much” himself and he saves everything he can to send to them. He has done this since August 2021 when the Taliban took over. In his oral evidence he explained that he did not need to remit money prior to this, because his family were at that time able to collect the rental income on land that he owns in Afghanistan. The land is used by a farmer to grow and sell grapes – the vineyard contains about 3000 vines. Until the Taliban takeover the rental income from this land provided plenty of money for the Appellants to live on, between $10,000 and $15,000 per annum. It was this money which paid for the children to be educated to such a high level. The female Second Appellant is a qualified lawyer who was working as a judge in Afghanistan before the return of the Taliban. Her sisters, the Third and Fourth Appellants, were both students – respectively of medicine and law – before the new regime prohibited them from continuing their studies. Their brother, the Fifth Appellant, is a qualified pharmacist. All of this was paid for using the income from the Sponsor’s land, which he inherited from his own father.

28. Since the Taliban took over, the family have had to go into hiding and they are unable to go to the land in order to collect the rent. I note that this evidence is consistent with the basis of the Sponsor’s asylum claim, accepted by the First-tier Tribunal in his asylum appeal, that he faces a real risk of harm from a Taliban commander from his home area, with whom he is engaged in a ‘blood feud’. This would explain why his son is unable to travel to the area in order to collect the rent, nor indeed live any kind of ‘normal’ life: he remains, with his mother and sisters, in hiding, moving regularly in order to avoid detection.

29. The Sponsor’s evidence on the matter of his family’s finances over the past twenty years was given in a straightforward and unhesitant manner. In respect of his children’s educations, he appeared surprised no one had ever asked him about it before. I found his evidence entirely credible. I accept and find as fact that the Appellants are, and have always been, financially dependent on the Sponsor. It is a dependency of necessity, and they are entirely reliant on him.

30. I have considered these facts against the guidance in IA and Others, in particular that summarised between paragraphs 116 and 125. Having done so, I am satisfied that there are here relationships between the Appellants and the Sponsor that amount to a family life for the purpose of Article 8. Although they are all adults, they have established that there are here additional elements of dependence, involving more than normal emotional ties, notwithstanding the many years that have now passed since they last lived with their father. As a matter of culture they still look to their father as the head of their family. As a matter of common sense, the fear and precarity of the family’s situation heightens the concern that might ordinarily be felt by a father about his children. As a matter of financial necessity, the Appellants are all dependent upon him, and have been since the day that he left Afghanistan.

31. I need deal only briefly with the position of the First Appellant, who as discussed above [at my §11] is in a different position from her children, by virtue of the undisturbed finding of the First-tier Tribunal that she was married to the Sponsor before he left Afghanistan, and that their relationship continues to subsist. There is uncontroversially a family life between them for the purposes of the Convention.

Proportionality

32. I begin by reminding myself of the guidance handed down in IA and Others, which may, insofar as it is relevant to these appeals, be summarised as follows:

i) Article 1 ECHR provides that contracting states “shall secure to everyone within their jurisdiction the rights and freedoms defined…[in the Convention]” (emphasis added) [86]; but

ii) Family life is unitary in nature: Beoku-Betts v SSHD [2008] UKHL 39; and

iii) There is support in the ECHR caselaw for the proposition that the contracting states’ obligations under Article 8 may, in certain circumstances, require family members to be reunited with their relatives living in the contracting state. That positive obligation rests, in large part, on the fact that one or more of the family is already here;

iv) When considering whether such circumstances pertain in any given case, decision makers must be mindful that the authorities suggest that it would likely only be in exceptional circumstances that refusal of entry clearance could constitute a violation;

v) The courts have to bear in mind the Secretary of State’s constitutional responsibility for policy in this area, as expressed in the Immigration Rules. An inability to comply with the Rules is a matter attracting considerable weight: R (Agyarko) v SSHD [2017] UKSC 11;

vi) In any proportionality balancing exercise the nature of the family life, and whether it could reasonably be expected to continue on its present footing, should be considered;

vii) The circumstances of applicants living outside the UK are a relevant factor but it cannot be the primary focus;

viii) All of the relevant public interest factors must be weighed in the balance;

ix) Ultimately the question is whether it would be unjustifiably harsh for the UK based sponsor if entry clearance is refused.

33. Applying this guidance in the case of IA and Ors the Court reached the decisive and unanimous verdict that it would not be disproportionate to refuse entry clearance to a family whom, it appeared to accept, faced a daily risk of death as a result of humanitarian conditions in Gaza and the Israeli bombardment of the territory. In his submissions Mr Terrell quite understandably sought to emphasise that conclusion, submitting that this case, like IA, was in effect an out of country claim for asylum, which neither the law nor public policy could countenance.

34. I have given all of that careful consideration. I begin with the factors weighing against the family.

35. As I note above, there is, as a general matter, a considerable weight to be attached to the fact that the Appellants are unable to meet the requirements of the Immigration Rules: Agyarko, s117B(1) Nationality Immigration and Asylum Act 2002 applied.

36. In view of the First-tier Tribunal’s finding regarding the relationship between Sponsor and First Appellant, it is now agreed that the First Appellant meets all of the substantive requirements of the Immigration Rule applied in her case, the since deleted FRP 4.1 of Appendix Family Reunion (Protection). I am grateful to Mr Terrell for taking the time to identify and produce the now archived version of that provision:

FRP 4.1. The applicant must:

(a) be the partner of a person (P) who has protection status; and
(b) have formed part of the family unit of P before P left the country of their habitual residence in order to seek protection; and
(c) where the applicant is not married or in a civil partnership with P they must also have been living with P for at least 2 years before P left the country of their former habitual residence in order to seek protection; and
(d) be in a genuine and subsisting relationship with P; and
(e) not be within the prohibited degree of relationship with P which means they could not marry in the UK as set out in Appendix Relationship with Partner.

37. That the First Appellant meets all of these requirements is a matter weighing heavily in her favour in the proportionality balancing exercise. All things being equal, her qualification under the rule would ordinarily compel an outcome in her favour: TZ (Pakistan) and PG (India) [2018] EWCA Civ 1109.

38. All things are not, however, equal. That is because there is still a ground for refusal under the Immigration Rules presenting an obstacle to the First Appellant. Under the heading of ‘suitability requirements’ Appendix Family Reunion (Protection) stated, at the material time, that the “applicant must not fall for refusal under Part 9: grounds for refusal” [at FRP 2.2]. Part 9 of the Rules required, inter alia, that if required to do so, applicants for entry clearance must produce a valid certificate showing them to be free of tuberculosis. The First Appellant is an applicant to which this provision applied. Appendix Tuberculosis requires that a valid TB certificate is required if the applicant has been continuously present in a country or countries listed at TB6 for 6 months or more, which includes a period (of any length) within the 6 months before the date of application. Both Afghanistan and Pakistan appear on that list. Before me Mr Osmani indicated that he was not aware of the First Appellant ever having provided such a certificate. Again, I am bound to observe that there have been significant shortcomings in the preparation of this appeal. No reason has been given as to why the First Appellant has not produced a TB certificate, or whether she has ever been advised to get one. I note that Appendix TB contains a specific exemption for those who are unable to obtain one: a situation that might well pertain for a woman living in hiding for fear of the Taliban. That is not however a matter that has been advanced on her behalf. I agree with Mr Terrell that there is an obvious, and important public interest in the requirements of Appendix TB being complied with. The First Appellant has been unable to meet the requirements of the Rules and I am bound to find that this is a matter weighing against her.

39. The applications of the remaining Appellants were considered with reference to the ‘adult dependent relative’ rules which none of them could hope to meet, since those rules were formulated to facilitate entry of individuals too ill or infirm to cope on their own, who were materially dependent on their UK sponsor. None of these Appellants is particularly ill or infirm. Nor could they avail themselves of the refugee family reunion provisions, in place at the date of the applications and refusals, since those provisions did not apply to adult children. The fact that there is no provision under the rules which can apply to these Appellants is, as Lord Reed explains in Agyarko, a matter that as a general matter attracts considerable weight to the Respondent’s side of the scales. Although I return to this matter below, I note here that there is no indication that the Second Appellant was ever referred for consideration under the Afghan Citizens Resettlement Scheme (ACRS), a route for which she was prima facie eligible.

40. I recognise that it is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English are less of a burden on taxpayers, and are better able to integrate into society. The same public interest considerations apply when considering whether the Appellants are financially independent.

41. Both of these considerations must weigh against the First Appellant. I have no evidence that she is able to speak English, and on the evidence before me appears to have always been financially dependent on her husband. Should she come to the UK I find it overwhelmingly likely that this would continue to be the situation, at least in the reasonably foreseeable future.

42. In respect of the remaining Appellants, the evidence is more nuanced. Although no formally recognised English language certificates have been produced, there has, latterly, been some evidence produced that all four adult children can in fact speak at least some English, an assertion consistent overall with their generally high level of education. The Second Appellant obtained a ‘Practical English’ diploma in 2019, and achieved an ‘A’ grade in an accountancy qualification taught in English, alongside her legal qualifications. The Third Appellant passed the same English language accountancy course as her sister, and further produces a ‘ESP’ certificate (English for a Specific Purpose) dated 2019, as well as confirmation of her studies in medicine. The Fourth Appellant has a BA in Islamic law, various diplomas and certificates showing study in international as well as domestic law. As to her English language ability she completed 6 months of study at the Institute of Spoken English in Kabul in 2018; her final examination being graded ‘A’. The Fifth Appellant relies on a diploma showing ten months of study at a Computer and English Language Institute, as well as his degree in pharmacology and professional qualifications as a pharmacist.

43. Mr Osmani submitted, and I accept, that given their qualifications, that these four young people are not likely to remain economically inactive in the UK. I accept in the medium to long term that they are very likely to be able to support themselves, and their parents, and make a significant contribution to life here. Their qualifications, gained in challenging circumstances, show them to be highly motivated as well as educated. It is that characteristic which leads me to further accept that in the short term they will work in any capacity once they have permission to do so: the Sponsor has managed to obtain offers of employment as shop assistants etc for his children from various businesses in London, and regardless of whether any of these come to fruition, I accept that these Appellants will likely be financially independent very soon after arrival, and I am confident that they will integrate quickly, and well. The matters raised at s117B (2) and (3) Nationality Immigration and Asylum Act 2002 do not therefore attract very much weight in the balance against these Appellants.

44. I now turn to those matters attracting a positive weight in their favour. I begin with their position. I do so not because it is in itself one that is capable of attracting very much weight in the balancing exercise, for which see the aforementioned analysis in IA, but because their situation necessarily informs my assessment of its impact on their father.

45. This is a family who are unambiguously opposed to the Taliban regime. Their witness statements are replete with references to the human rights abuses being committed on a daily basis in Afghanistan, and to the various harms that they constantly fear: kidnap, rape or forced marriage of the women, arrest, imprisonment or worse for the Fifth Appellant. The accepted evidence is that they are a family who valued women’s education and advancement, and that is part of the reason why they are now living in hiding, and doing all that they can to avoid coming to the attention of the authorities.

46. A more specific reason for the family’s concern for their safety, again expressed in all the statements, are the circumstances under which their father was recognised as a refugee. The Fifth Appellant for instance states: “the fact that I am related to a my father puts me and our whole family at risk”. The Third Appellant goes further:

“The fact that I am related to a person who is been considered as traitor puts my life in extreme danger as the Taliban and kidnappers mainly target British citizen and their family members as there is a belief that British Citizens and those claimed Refugee status are not true Muslims and that they only represent the interest of the western countries, particularly the UK. British Citizens and those claimed Refugees are often perceived to be spies of the western government. They also deem British nationals to be wealthy and so use means of ransom to extort this out of the national or even the UK government”.

47. It is against the background of these facts that I evaluate the evidence of the Sponsor that he worries for his daughters every day, that he is “extremely worried” for the Second Appellant in particular; that he was “shocked and saddened” by the refusals, which continue to cause him “extreme distress”. In his oral evidence he said that he regards the outcome of this appeal as a “matter of life and death” for him. Whilst this must, in the absence of any medical evidence, be regarded as hyperbole, I have no hesitation in accepting that concern for his family probably consumes the Sponsor’s every waking moment. As he puts it in his statement:

“The Taliban is killing young men and sexually abusing girls and young women and if anything happens to my family, my heart will be shattered. As a father, I feel helpless for my family, I cannot protect my family properly. Every time I speak to them, my heart breaks and I am unable to change their situation”.

48. It took the Sponsor 19 years to be recognised as a refugee, and although the blame for that passage of time cannot be laid squarely on the Secretary of State, nor even the system more generally, it is a fact that during that time the Sponsor has been deprived of his ability to enjoy a family life with his wife and children. The distress caused to him by that lengthy separation is today exacerbated by the knowledge that they are particularly at risk of harm because of him, and his own difficulties with the Taliban commander identified in his asylum claim. I accept that the burden of this guilt weighs very heavily on the Sponsor and I accept that the refusals have caused him, as he describes it. “extreme distress”. I have placed considerable weight on this matter, because it goes to the heart of the ongoing interference with the Sponsor’s Article 8 rights.

49. In respect of the Second Appellant it is accepted that she is a qualified lawyer who was employed by the former Afghan government as a judge. She asserts, and I can nowhere see that this is disputed, that this work involved sitting in judgement against members of both ISIS and the Taliban, and this is one of the reasons that the family are now living in hiding. I do not know whether the Second Appellant was ever considered for resettlement under ACRS, but I assume that if she had been, I would have been told. Although the bundle before me contains numerous references to the scheme, as far as I can see neither the ECO nor her representative ever thought to make such a referral. The ACRS scheme was specifically introduced to support civilians who had defended the rule of law, and the UK government made clear, through numerous ministerial statements and the introduction of that policy, that the relocation of women judges was a priority. See for instance the statement made in this regard by Liz Truss, then Foreign Secretary and Minister for Women and Equalities, in an FCDO press release dated 13 November 2021:

“These brave people have been defending rights and freedoms of women in Afghanistan. The UK is a fierce champion of freedom and the rule of law, and ending violence suffered by women around the world is a personal priority for me. We will continue to do all we can to help at-risk Afghans leave the country”1.

50. The policy, and statements such as this, amount to a clear recognition not only that individuals such as the Second Appellant are at a real risk of harm from the Taliban regime, but that they are in that position because of the work they undertook supporting UK efforts to establish a functioning democracy in Afghanistan. In their witness statements all of the Appellants, and Sponsor, identify the Second Appellant’s particular vulnerability as one of the driving factors underpinning these applications. That her position puts the whole family at risk is a matter supported by country background material and the policy itself. It is not a generalised or abstract fear. It is a matter that I attach significant weight to.

51. Drawing all of this together I have reminded myself of the considerable weight to be placed on the public interest in refusing leave to those who cannot meet the requirements of the Rules; I have had regard to the s117B factors I identify above, and to the emphasis in IA that it is only likely to be the most exceptional of cases that can succeed in an Article 8 entry clearance case. I am satisfied that this is such a case. I have attached significant weight to the fact that the Second Appellant was a judge under the former government, and the uncontested fact that this association with pro-‘western’, democratic values means that she is at immediate risk of serious harm should she come to the attention of the Taliban authorities. That is not to treat this as an out-of-country asylum claim; it is to recognise that she is in the situation that she is in because she chose to align herself with values promoted by the UK and our allies during the period 2003-2021. On the evidence before me she, and her family, prima facie would have qualified for resettlement under ACRS. I have also attached considerable weight to the ongoing distress that the refusals are causing to the Sponsor. He could, had he so wished, established a new family life for himself in the UK. 19 years is a long time to wait. That he has done so is a testament to the strength of his commitment to his wife and children and to the nature of the family life at stake here. It is not precarious, tenuous or founded simply upon the need to get the family out: in this regard it is in sharp contrast to the position in IA. The Sponsor wants to be reunited with his wife and children because they are his wife and children; the peril that they currently face, and the anguish that this causes him, only serve to underline why this decision is in all the circumstances disproportionate.

52. Standing back and having assessed all of the relevant factors, I am satisfied that the decisions to refuse to grant entry clearance to this family are having an unjustifiably harsh impact on the Sponsor.

53. I add this. As I note above, the First Appellant qualifies for leave to enter under the Rules, but for her failure to produce a valid TB certificate. In his submissions Mr Osmani pointed out, probably correctly, that even if such a certificate had been produced back in 2023 it would now be out of date and she would be required to obtain a new one before entry clearance is granted. That being the case, and should such a certificate now be produced (or the exemption established), the ECO may wish to consider granting the First Appellant entry under the 5 year route to settlement on the basis that she in substance qualifies for leave under the Rules.

Decisions

54. The decision in the appeal is remade as follows: the appeal is allowed on human rights grounds.

55. There is an order for anonymity because the Appellants remain in Afghanistan and could be an increased risk of harm should they be publicly identified.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
25th July 2026