Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002797
UI-2025-002798
First-tier Tribunal No: PA/59455/2024; PA59458/2024
LP/13740/2024
LP/13741/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

Secretary of State for the Home Department (SSHD)
Appellant
and

R.R.
K.S.
Respondents

Representation:
For the Appellant: Ms Khan, senior Presenting Officer.
For the Respondent: Ms Renfrew, Counsel instructed by Gordon Lennox

Heard at Field House on 4 February 2026

DECISION AND REASONS
1. The appellant , the Secretary of State for the Home Department, appeals against the decision of the First-tier Tribunal (FtT) promulgated on 21 April 2025, who allowed the respondents’ appeal from a decision of the appellant to a refuse a protection and human rights claim. The decision of the appellant is dated 28 March 2024.
2. I should note that after RRs relationship was raised in an appeal skeleton argument dated 7 November 2024, the appellant reviewed the respondents’ claims (dated 4 December 2024) and considered the relationship between RR and HM.
3. The First-tier Tribunal dismissed the appeal on protection grounds but allowed the respondents’ appeals on article 8 grounds.
4. The appellant appealed to the Tribunal against the decision.
5. Permission to appeal was refused by a judge of FtT. The judge in refusing permission set out a succinct summary of the grounds of appeal advanced. The appellant renewed the application on the same pleaded grounds to the Upper Tribunal. An Upper Tribunal Judge granted permission to appeal on 28 July 2025, and this was not limited in scope. I note that the judge commented upon the merits of the challenge to the finding regarding the relationship, and the late introduction of evidence.
Background
6. The respondents are nationals from Iraq. They raised a protection claim which was rejected on appeal and there was no cross appeal and so that matter is not before me. The respondents also raised a human rights claim based upon a relationship between RR and HM, and the close bond between RR and KS, and that KS has no other relatives to turn to in Iraq.
The decision of the FtT
7. The FtT allowed the respondents’ appeals on article 8 grounds.
8. The respondents made a protection claim which was dismissed by the FtT. There is no cross appeal before me against that decision. The judge made findings that the respondents were not credible, in relation to the protection claim. The FtT found the respondents not to be impressive witnesses.
9. The respondent, RR, also raised that he was in a relationship with HM. The judge concluded that the respondent was in a genuine and subsisting relationship with HM. The judge concluded that there would be a disproportionate interference with this relationship and so allowed the appeal. The judge also found that KS would be returning alone, and would be isolated. The judge also allowed KS’s appeal.
Grounds of appeal.
10. There are 3 distinct grounds of appeal. These can summarised thus: The judge was wrong to a admit late evidence submitted by the respondents; the judge erred and did not provide adequate reasons for the finding of a genuine and subsisting relationship; and the judge erred in the application of article 8.
The hearing and submissions
11. I heard submissions from Ms Khan and from Ms Renfrew. Ms Renfrew also provided a written response to the grounds of appeal and the grant of permission. I have considered this carefully in my assessment. I should note that during submissions an issue arose regarding the appeal of KS and the lack of a finding of family life between RR and KS. Ms Renfrew argued that the appellant had not raised this aspect in the grounds of appeal and so this matter was not before the Upper Tribunal.
Analysis and conclusions.
12. Relatively recent authority (Ullah v SSHD [2024]EWCA Civ 201, Yalcin v SSHD [2024] EWCA Civ 74, and Chowdhury v SSHD [2025] EWCA Civ 36) has emphasised that the Upper Tribunal should not rush to find an error of law simply because they would have expressed themselves differently from the First-Tier Tribunal, that the Upper Tribunal should be slow to infer that a point had not been taken into account even if not expressly mentioned, and that judicial restraint should be exercised even though not every step in the reasoning was fully set out, as the issues might be set out by inference. I have borne those principles in mind.
13. I also had in mind the Court of Appeal’s dicta in Volpi v Volpi [2022] EWCA Civ 464 that it is not the role of an appellate court to come to its own conclusions on the evidence before the Judge. It is essential that there is appropriate judicial restraint before interfering with the decision of the expert first instance judge.
14. I have carefully considered the grounds of appeal and the submissions of the parties. I conclude that there are material errors of law in the decision of the FtT.
15. I will firstly consider the complaint by the appellant regarding the circumstances surrounding the late admission of evidence. The appellant does not assert that there was procedural unfairness in the late introduction of the evidence and it is noted that the presenting officer made no compliant at the time [7]. I conclude that there is no error of law in the judge’s decision to admit the evidence and consider it.
16. I next turn to the finding made that there is a genuine and subsisting relationship. Ms Khan argued that the judge had not given adequate reasons for the decision as to whether the appellant had a genuine and subsisting relationship as there is no mention of the previous negative credibility findings. I should note that the Upper Tribunal judge when granting permission reformulated the ground, paragraph 1(d), as a reasons challenge to the finding of a genuine and subsisting relationship. In submissions Ms Renfrew emphasised the matters she had set out in her written response.
17. The judge’s findings about the relationship are dense and just 3 short paragraphs [69] to [71]. There is no explanation provided why this particular oral evidence was persuasive in the context of the previous comments and findings of the judge. At [59] the judge stated that the respondents were not impressive witnesses. The judge set out numerous negative credibility points in respect of the accounts the respondents had given in the context of the protection claim. I also note that a higher standard of proof is required to find the facts to support an article 8 claim. I also note that there is no real analysis of the photographs and evidence which were submitted late, to support whether the appellant and HM are in a genuine relationship. The judge has not set out how many photographs there were, and what other documentary evidence pointed to a genuine relationship. The relationship between RR and HM was only disclosed after the protection interview in March 2024 and was considered as a new matter, post the original decision. It is in this context which I have outlined, that it was incumbent upon the judge to explain clearly why this relationship was accepted as genuine and subsisting. I conclude that there is a material error of law as set out in the grounds of appeal.
18. I have considered carefully the judge’s approach to article 8. Ms Renfrew submitted that there was not a clear error in [73](c)(i). She stated that the judge was aware of the immigration status of the respondent, gave weight to the maintenance of immigration control [73](a)(i) and submitted that some weight must be given to the family life of the respondent. She submitted that the judge had correctly applied section 117B(4) of the Nationality and Immigration Act 2002.
19. I am satisfied that the judge fell into a clear error in giving significant weight to the respondent’s relationship formed whilst he was unlawfully within the UK, because the judge concluded the respondent could not meet the definition of a qualifying partner within the rules [73](c)(i)]. The judge is technically correct that section 117B (4)(b) would not be engaged but such a person cannot be in a better position than someone who falls within 117B(4)(b). It is clear that little weight should have been given to this relationship but there is no acknowledgement of this by the judge.
20. Ms Renfrew submitted that even if the judge fell into error in this respect, that in light of the finding at [74](b), it was not material. I have carefully read the decision and [74] (b) but there is no analysis of whether the respondent could apply for entry clearance and how long a separation there would be between the respondent and HM (see Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 00129 (IAC). There is not a finding that it would lead to an indefinite separation as Ms Renfrew submitted. I conclude that this finding as it stands is not sufficient to save the decision.
21. As the judge had indicated allowing RR’s appeal was a material factor in allowing KS’s appeal [74](c)(i), this error also infects the decision in allowing KS’s appeal. I conclude that there are material errors of law in the decision.
22. In deciding whether to remit the matter for a hearing in the FtT or retain this matter in the Upper Tribunal, I note there is no finding regarding family life between KS and RR. KS is stated to be RRs grandmother. There also appears to be inconsistent findings about whether there exits family members in Iraq [74](c) and [56]. These are important considerations.
23. I am satisfied that there are material errors of law in the decision as set out in the grounds of appeal. Accordingly, I find the judge materially erred in law in their assessment of article 8 and I set aside the judge’s decision. None of the judge’s findings in respect of article 8 are preserved. The findings made for the protection aspect are preserved.
24. I have decided in accordance with paragraph 7.2 of the Practice Statement of 25 September 2012 to remit the respondents’ appeals to the First-tier Tribunal. Oral evidence will need to be taken from the respondents and HM once again, and findings made.

Notice of Decision
Appeal allowed
The decision of the First-tier Tribunal is set aside. None of the judge’s findings in respect of article 8 shall stand.
The matter is remitted to the First-tier Tribunal for rehearing in respect of article 8 only, to be heard by a different judge

Iain Burnett
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 April 2026.