Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002787

First-tier Tribunal No: HU/62703/2023
LH/07872/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th November 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in UT
and

M I K
(ANONYMITY ORDER MADE)
Respondent in UT

Representation:
For the Appellant: Ms S Simbi, Senior Presenting Officer.
For the Respondent: Ms Vasilda, M I K’s sponsor, who attended in person.

Heard at Birmingham Civil Justice Centre on 19 September 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
1. The Appellant Secretary of State appeals the decision of First-tier Tribunal Judge C Taylor (‘the Judge’) dated 20th March 2025.
2. For ease of reference, I will refer to the parties as they appeared below, namely to the Secretary of State as the Respondent and M I K as the Appellant.
3. For the avoidance of doubt, the Anonymity Order set out above applies to MIK. Anonymity was ordered below and I continue to make such an order given that MIK is a minor child.
Factual background and procedural history
4. The Appellant MIK is a citizen of Nigeria and she applied to join the Sponsor, Ms Vasilda, present and settled in the UK. Ms Vasilda adopted the Appellant in Nigeria on 14th July 2021, when the Appellant was 13 years old. However, this adoption is not one that is recognised in England & Wales. For this reason, the Respondent Secretary of State refused the Appellant’s entry clearance application under Paragraphs 310 and 316A of the Immigration Rules, relating to adopted children or children coming to the UK with a view to being adopted. Neither did the Respondent consider that family life for the purposes of Article 8 ECHR existed between the Appellant and Ms Vasilda. The Respondent also expressed the alternative view that, even if there was family life between them, the decision to refuse entry clearance was nevertheless proportionate.
5. The Appellant and Sponsor lodged an appeal to the First-tier Tribunal (‘the FtT’) against the Respondent’s decision and this was heard by the Judge on 20th March 2025. The Appellant pursued her appeal on Article 8 ECHR grounds, arguing that the Sponsor, Ms Vasilda, has been responsible for her and that no one else has been caring for her as a parent. The Appellant was represented at this hearing by Ms Vasilda herself and there was no attendance by or on behalf of the Respondent. Following the necessary checks, the Judge deemed it appropriate to proceed with the hearing in the Respondent’s absence.
The decision of the First-tier Tribunal
6. The Judge allowed the Appellant’s appeal on Article 8 ECHR grounds. In doing so, she made the following key findings:
(a) The Sponsor’s evidence was credible, her responses to the Judge’s clarification questions were forthright and detailed. She painted a vivid and convincing picture of how she has cared and provided for the Appellant, the reasons for her taking on that role and the nature of the relationship – [13];
(b) There has been a genuine transfer of parental responsibility for the Appellant to the Sponsor. The Appellant’s mother has passed away and her father, owing to mental health difficulties, is unable to care for the Appellant. The Sponsor has taken on that responsibility. She provides for the Appellant financially, she meets her educational and health needs and provides her with the love, care and guidance of a parent. There is documentary evidence in the form of school letters relating to both schooling and medical matters to support this finding in addition to the oral evidence of the Sponsor – [15];
(c) The Sponsor has arranged accommodation for the Appellant and has employed staff to provide for her day-to-day needs. The Sponsor visits the Appellant every 60-90 days to also provide hands on care. They are also in daily contact and the Appellant calls the Sponsor ‘Mum’ – [16 & 19];
(d) The Sponsor can provide for the Appellant here in the UK and she provided documentary evidence of her income and housing costs to demonstrate this – [17];
(e) The Sponsor has tried to encourage the Appellant’s father to be involved in her life. His involvement and contact with the Appellant has been variable because of his mental health and he plays no role in her day-to-day care. The ties of responsibility no longer exist between the Appellant and her father – [20];
(f) There is family life between the Appellant and the Sponsor. In the Judge’s words, the Sponsor “is, in all but biology, the appellant’s mother. She has fully taken on this role. She takes her responsibility very seriously and has done her upmost to care for the appellant. This is not an adoption of convenience” – [22].
(g) The Appellant’s best interests are for her to live with the Sponsor – [23].
7. Drawing the above (summarised) findings of fact together, the Judge then held at [24] that whilst the Appellant had not raised an argument under para 297(f) of the Immigration Rules, the Judge found this to be relevant in relation to past harm that the Appellant had suffered, which the Judge found amounted to “serious and compelling family or other considerations which make her exclusion from the UK undesirable and suitable arrangements have been made for her care”. So as to preserve the Appellant’s privacy on this issue, it is not necessary for me to provide further details of this harm. This is also because the harm that the Appellant is said to have suffered was not disputed by the Respondent.
8. Accordingly, the Judge held at [26] that the requirements of Immigration Rule 297 (f) were met and the refusal was therefore disproportionate.
9. At [25], the Judge also held that the Appellant could not meet the requirements of Immigration Rules 310 and 316A. This was because the adoption of the Appellant was not recognised in England & Wales and therefore the Appellant did not have the requisite ‘certificate of eligibility’ (see paras 310(vi) of the Immigration Rules).
The Appellant’s appeal to the Upper Tribunal
10. The Respondent Secretary of State applied for permission to appeal against the Judge’s decision. She was refused permission to appeal by the FtT but following a renewed application to this Tribunal, the Respondent was granted permission on all grounds.
11. The Respondent raised four grounds of appeal, some of which overlap with each other. In light of the repetition in the pleaded grounds, I summarise these as two grounds of appeal, as follows:
(a) Ground 1 – the Judge misdirected herself in relation to para 297(f) of the Immigration Rules, since this is premised on the Appellant and their sponsor being related to each other in a prescribed way, which the Appellant and this Sponsor are not;
(b) Ground 2 – the Judge made a perverse or irrational finding when reaching the conclusion that there were “serious and compelling family or other considerations which make exclusion of the child undesirable”, when she otherwise found that the Appellant’s current circumstances in Nigeria were comfortable and safe. It was further submitted that the past harm suffered by the Appellant, “whilst distressing, is no basis to allow the appeal in circumstances where the court has already been assured of and has found that the appellant is safe and well cared for”.
12. In granting permission to appeal Upper Tribunal Judge Hirst stated the following of note:
“(…) I consider it is just arguable that the First-tier Tribunal judge should have considered and made reasoned findings as to whether the sponsor was capable of being a ‘relative’ under paragraph 297(i)(f) of the Rules. It is also arguable that the First-tier Tribunal did not provide sufficient reasons to explain its conclusion under paragraph 297(i)(f) and/or Article 8 outside the Rules in the alternative.
6. Given the robust and unchallenged findings made by the First-tier Tribunal in respect of the sponsor and her care for the Appellant, the materiality of any error is likely to be an issue. I do not however limit the grant of permission.”
13. In response, the Appellant did not seek to file and serve a reply under Rule 24 of the Procedure Rules. At the hearing, Ms Simbi on behalf of the Respondent made further oral submissions and Ms Vasilda did so on behalf of the Appellant in response, seeking to defend the Judge’s decision. At the end of those submissions, I was able to indicate that I was satisfied that the Judge had made a material error of law in finding that the Sponsor and Appellant could meet para 297(f) of the Immigration Rules. I then heard brief oral submissions from both parties again on re-making, which I deemed was appropriate to retain in the Upper Tribunal. This was also agreed to by both parties. At the end of the hearing, I reserved my decision on re-making.
14. I provide my decision on both the error of law and re-making stages of this appeal, with reasons, below.
Analysis and conclusions
The Respondent’s appeal on error of law
15. As summarised above at para 13 and as per my indication to the parties at the hearing, I was satisfied following the Respondent’s written grounds of appeal and the parties’ oral submissions that the Judge had made a material error of law.
16. It is worth setting para 297(f) of the Immigration Rules out in full. This stipulates as follows (underlined emphasis added):
Requirements for indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom

297. The requirements to be met by a person seeking indefinite leave to enter the United Kingdom as the child of a parent, parents or a relative present and settled or being admitted for settlement in the United Kingdom are that he:
(i) is seeking leave to enter to accompany or join a parent, parents or a relative in one of the following circumstances:
(a) both parents are present and settled in the United Kingdom; or
(b) both parents are being admitted on the same occasion for settlement; or
(c) one parent is present and settled in the United Kingdom and the other is being admitted on the same occasion for settlement; or
(d) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is dead; or
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing; or
(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately by the parent, parents or relative the child is seeking to join without recourse to public funds in accommodation which the parent, parents or relative the child is seeking to join, own or occupy exclusively; and
(v) can, and will, be maintained adequately by the parent, parents, or relative the child is seeking to join, without recourse to public funds; and
(vi) holds a valid United Kingdom entry clearance for entry in this capacity; and
(vii) does not fall for refusal under the general grounds for refusal.
17. It is correct, as Judge Hirst noted, that the term ‘relative’ is not defined in the Immigration Rules, whether in para 297 itself or in the interpretation section to the Immigration Rules. It is well-established however that the Immigration Rules are to be interpreted “sensibly according to the natural and ordinary meaning of the words used” – Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 at [10].
18. The dictionary definition of ‘relative’ is a person connected by blood or marriage. I consider this to be the ordinary and natural meaning of the word ‘relative’. Had the Secretary of State intended a different meaning, I consider that this would have been particularised in the rule itself or by way of an express definition providing a wider and specific meaning.
19. Applying this to this appeal, the Sponsor is neither a parent nor a relative by blood or marriage to the Appellant. She is not related by blood to the Appellant’s father as they are foster siblings.
20. For completeness, ‘parent’ is defined in the interpretation section to the Rules as follows (emphasis original):
“Parent” means:
(a) biological parent; and
(b) legal parent, including birth mother where the child is not genetically related, spouse or civil partner of the birth mother at the time of the child’s birth, and person with a parental order under section 54, or section 54A of the Human Fertilisation and Embryology Act 2008; and
(c) adoptive parent:
(i) who, when habitually resident outside the UK, adopted a child in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK; or
(ii) whose adopted child has been granted permission under Appendix Adoption, or Part 8 of these Rules, and, if applicable, the adoption has been formally completed in the UK.
21. The Appellant and Sponsor are not biologically related as parent-child, nor is the Sponsor the Appellant’s legal or adoptive parent. The latter because the Appellant’s adoption was not effected by way of a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK.
22. On an ordinary and natural meaning of para 297(f), I am satisfied therefore that the Judge erred in finding that the Appellant could meet para 297(f) since the Sponsor is neither the Appellant’s parent nor relative.
23. I am also satisfied that this error is material since the Judge’s reasons for allowing the appeal do appear from [26] to be grounded in the Appellant meeting the requirements of para 297(f), which she does not. I therefore agree with Ms Simbi that the Respondent’s first ground is made out.
24. Ms Vasilda in her submissions asked me to consider that the appeal otherwise fell to be allowed pursuant to para 310 of the Immigration Rules on the basis that the Appellant’s adoption was a ‘de facto’ one. In the alternative, she sought to persuade me that the terms of para 297(f) were in the alternative focusing on one parent or relative only. I explained to Ms Vasilda that the concept of ‘de facto’ adoption, was not one that applied to the Appellant’s case. This is a route for a child to apply for entry clearance where the child has been living with their adoptive parent(s) overseas for at least 12 months and there has been a genuine transfer of parental responsibility.
25. Neither was Ms Vasilda’s understanding of the provisions contained in para 297(f) correct. It is clear that the child needs to be the child of a ‘parent’ or a ‘relative’, who is present and settled in the UK and the Appellant is neither when looking at the ‘parent’ definition in the Immigration Rules and the ordinary and natural meaning of the term ‘relative’. I was satisfied therefore that the Appellant could not meet the provisions of paras 310, 316A and 297 and that the Judge had materially erred in law therefore in finding otherwise in relation to para 297.
26. In light of my conclusions above, it is not necessary for me to determine whether or not the Judge’s finding was perverse, namely that the past harm suffered by the Appellant amounted to ‘serious and compelling family or other considerations’ under para 297(f). I do not therefore need to consider the Respondent’s second ground of appeal any further.
Re-making
27. I noted with the parties at the conclusion of their oral submissions that I would set aside the Judge’s decision to allow the appeal. Both parties were agreeable to proceed to the second stage of the appeal and did not require an adjournment or any extra time. I also noted with both parties, that save for the submissions made in relation to the finding under para 297(f) as to ‘serious and compelling family or other considerations’, none of the Judge’s other findings of fact were otherwise challenged by the Respondent.
28. Whilst the Respondent submitted at the end of her written grounds of appeal that Article 8(1) family life was not engaged, contrary to the Judge’s findings at [22] and [26], there were no submissions from the Respondent engaging with those findings. I do not consider that the Judge’s finding on family life existing between the Appellant and Sponsor was limited to her finding on para 297(f). As per my summary at para 6 above, the Judge made detailed findings as to the nature of the relationship between the Appellant and the Sponsor. She found, for the reasons summarised there, that this is effectively a child-parent relationship, with parental responsibilities (in lay-person’s terms) having transferred to the Sponsor and an adoption having lawfully taken place in Nigeria albeit not legally recognised in this jurisdiction.
29. Accordingly, I preserved the findings reached by the Judge at [13]-[23] of her decision and confirmed the same at the hearing with both parties. Ms Vasilda made further submissions as to why I should allow the Appellant’s appeal and why the decision is not proportionate under Article 8 ECHR. Those submissions very much centred on the close nature of their relationship together, that the Appellant had been doing well in her education thanks to her and that she was an integral part of the Sponsor’s family. The Sponsor also showed me family photographs featuring the Appellant, in particular the photographs documenting the funeral of the Sponsor’s foster mother. Ms Simbi did not make detailed submissions and relied on the Respondent’s refusal decision dated 27th September 2023 and the review dated 14th November 2024. She submitted that it was open to the Sponsor to seek recognition in the UK of the adoption of the Appellant and until she had done so, the Respondent’s decision remained proportionate.
30. I confirm that I have taken into consideration all of the documents disclosed into these proceedings, which were contained in a bundle of 134 pages, together with the photographs presented by the Sponsor at the hearing, and the submissions made to me by both parties.
31. I am satisfied for the reasons given by the Judge, and which I have preserved, that Article 8 is engaged and there is family life between the Appellant and the Sponsor. The decision to refuse the Appellant leave to enter has consequences of such gravity as to engage the operation of Article 8. In turn, the refusal of entry clearance presents some interference with family life in the sense that it prevents the continuation of family life with the Sponsor in the United Kingdom. However, the interference is in accordance with the law, and the interference is necessary to protect the legitimate aim of immigration control. The issue that I have to determine is thus whether the decision by the Respondent to refuse entry clearance is proportionate to the legitimate aim of immigration control.
32. I confirm again that I have considered very carefully the relevant authorities that apply and the evidence relied upon by each party within these proceedings, when conducting my assessment and reaching my conclusions below. I have set out my assessment using the balance sheet approach, being careful not to ‘double-count’ relevant factors.
The factors relied on by the Respondent in favour of her decision and the interference with the Appellant’s rights
The public interest
33. The Appellant’s refusal of entry clearance is in the public interest in aid of the maintenance of effective immigration controls. The Appellant does not meet the requirements of the Immigration Rules. In particular, the reasons why the Appellant cannot meet the Immigration Rules is because her adoption was effected in Nigeria and the UK does not recognised Nigerian adoption orders. Further steps need to be taken by the Sponsor for the adoption to be recognised and there is no evidence before me that she has done so. I find that the weight to be attached to this is significant.
34. There are otherwise no other factors to weigh in favour of the Respondent’s side of the scales as the points that she raised at first instance against the Appellant were resolved by the Judge in favour of the Appellant and are findings that I have preserved for the purposes of re-making this appeal. This includes the best interests of the child (see para 15 of the Respondent’s review).
35. I turn to the remaining submission at para 17 of the Respondent’s review in my consideration of the factors in favour of the Appellant immediately below. This submission was that in-line with Agyarko [2017] UKSC 11 , the Appellant has failed to demonstrate there are exceptional circumstances which would amount to unjustifiably harsh consequences rendering the refusal disproportionate; these circumstances being rare.
The factors relied on by the Appellant in favour of there being unjustifiably harsh consequences under Article 8 ECHR
36. The factors below include the preserved findings of the FtT in the Appellant’s favour and I find that these weigh heavily in the Appellant’s and Sponsor’s favour:
(a) the Appellant’s family life established with the Sponsor – whilst their adoption is not one that has been recognised in this jurisdiction, it is one that has been lived by the Appellant and Sponsor since 2021. The Judge at first instance found that responsibility for the Appellant had duly shifted from her father to the Sponsor and it has been the Sponsor, who has been responsible for the Appellant’s upbringing ever since. The Judge noted that this was also supported by documentary evidence, from for example the Appellant’s school. The Sponsor has also been financially responsible for the Appellant: the Sponsor has provided a home for the Appellant in Nigeria and has employed staff to provide for her day-to-day needs;
(b) the Appellant is still a minor and the Judge found that her best interests lie in living with the Sponsor;
(c) the Appellant has not been living with a parental figure in Nigeria for a significant period of time and has managed to progress in her education and more generally only thanks to the Sponsor’s support.
37. The Appellant is otherwise financially self-sufficient, in that she is supported by the Sponsor, and there is nothing to suggest that this will change once in the UK. This factor is neutral.
38. I do not have any evidence of the Appellant’s ability to speak English but in any event, this factor is also neutral. The remaining factors contained in s.117B at sub-paras (4)-(6) do not apply as the Appellant has not been living to date in the UK.
39. In accordance with the well-established authorities, I am satisfied that the Appellant, as a minor child, has depended on the Sponsor in every way and that the Sponsor has been responsible for her like her parent. There is force in Ms Simbi’s submission, relying on para 16 of the Respondent’s review that it is open for the Sponsor to take the necessary steps to secure recognition in this country of the Nigerian adoption order. She has not done so. It remains open for her to do so.
40. However, I do not consider that the close nature of the relationship between the Appellant and Sponsor is outweighed by the fact that their adoption has not yet been recognised in this jurisdiction. The Appellant and Sponsor followed the procedures that are open to them to apply for entry clearance, also relying on Article 8 ECHR. They do not meet the requirements of the adoption Immigration Rules as a result of the adoption not having been recognised and that is a significant factor in favour of the Respondent’s decision, as I have addressed above. However, on the Judge’s findings all other aspects relating to the adoption are otherwise met. These are:
• responsibility for the Appellant lying with the Sponsor and the Appellant’s own parents not being able to look after her,
• the adoption not having been one of convenience, arranged to facilitate the Appellant’s admission to the UK,
• her ties with her biological parents have been broken, pursuant to the guidance set out in VB v Entry Clearance Officer- Ghana [2002] UKIAT 1323.
41. In circumstances where the Appellant is a minor and has been cared for as a minor by the Sponsor for at least the last five years when her father relinquished his care of her to the Sponsor, I am satisfied that the continued refusal of entry clearance would cause unjustifiably harsh consequences to the Appellant and the Sponsor.
42. The Appellant’s best interests are for her to live with the Sponsor in the UK and any continued separation between the two, with the Appellant being a minor child, amounts in my view to unjustifiably harsh consequences. On the specific facts of this case, the balancing exercise is tipped in favour of the Appellant’s individual rights. This is largely because of the Judge’s findings that the reasons underlying the Appellant’s adoption and how this has been lived by the Appellant and Sponsor are entirely genuine and well-intended. The Judge was also satisfied that no one else, other than the Sponsor, has been exercising responsibility for the Appellant.
43. It follows from this that the Respondent Secretary of State’s decision of 27th September 2023 to refuse the Appellant entry clearance is a disproportionate and, in turn, unlawful interference under s.6 of the Human Rights Act 1998.
Notice of Decision
44. The decision of the FtT dated 20th March 2024 did involve the making of a material error of law and has been set aside, pursuant to this decision.
45. I re-make the decision by allowing the Appellant’s appeal on Article 8 human rights grounds.
Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21.10.2025