Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: Appeal Number:
UI-2025-002979, UI-2025-002982
UI-2025-002984, UI-2025-002987
UI-2025-002989, UI-2025-002990
UI-2025-002991, UI-2025-003002
First-tier Tribunal Nos :
HU/54015/2024, HU/54016/2024
HU/54017/2024, HU/54018/2024
HU/54019/2024, HU/54020/2024
HU/54023/2024, HU/54022/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of June 2026

Before

UPPER TRIBUNAL JUDGE LANE

Between

SM (and others)
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Kasusula
For the Respondent: Ms Karini, Senior Presenting Officer

Heard at Edinburgh on 19 May 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

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

DECISION AND REASONS
The error of law decision
1. By a decision dated 22 January 2026, I set aside the First-tier Tribunal’s decision and directed a resumed hearing, following which I would remake the decision on the appellants’ appeals. That resumed hearing took place at Edinburgh on 20 May 2026. I attach to this decision a copy of my error of law decision (Annexe A).
Fresh evidence
2. I directed that the parties may, should they wish, adduce new evidence provided copies of any such evidence is filed at the Upper Tribunal and served on the other party no less than 10 days prior to the resumed hearing. Mr Kasusula, who now acts for the appellants, has filed and served a notice under Rule 15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Given my direction, that application is unnecessary but Mr Kasusula has helpfully included in his application a summary of the items of evidence upon which, in addition to that previously before the First-tier Tribunal, his clients now rely:
1.1. Employment and professional history of [the United Kingdom sponsor, SA]:
Recommendation letters and certificates from ‘UNESCO KABUL’ confirming employment from 2002 to 2011 as a driver for the Director and Transportation in charge.
Certificates of completion for mandatory UN safety, security and ethics training.
1.2. Educational records of [NA]:
12th Grade graduation certificate (2018) and high school transcripts from Z Girls High School, demonstrating academic success and fluency in English.
1.3. Updated financial dependency records:
Recent MoneyGram receipts showing continuous financial support from the Sponsor to the Respondents through May 2026, a more recent period.
1.4. Home Office CPIN Afghanistan:
Home Office Country police and information note: Afghanistan: Fear of the Taliban, February 2026. We ask for particular emphasis onto page 12 of this report.
The resumed hearing
3. At the resumed hearing, I did not hear oral evidence and the hearing proceeded by way of submissions only.
4. The parties agree that the appellants cannot succeed under the provision of the Immigration Rules. The appeals have been made on human rights (Article 8 ECHR) grounds only. The legal framework for determining appeal under Article 8 ECHR is succinctly and accurately set out in the First-tier Tribunal’s decision at [7-14] and I shall not repeat it here. However, since the promulgation of that decision, there has been a significant development in the jurisprudence concerning out of country appeals under Article 8 ECHR, namely IA [2025] EWCA Civ 1516. That judgment is also referred extensively to in the annexed error of law decision.
Discussion
5. In her submissions, Ms Karini relied on IA. What I have said in the error of law decision as regards the significance of IA, I repeat in this decision; indeed, both decisions should be read together. In IA at [135-136], the Court of Appeal wrote:
135. It seems to us that close personal and emotional ties between the father (and the family) and the sponsor have been restored since the start of the Gaza war. The question is, however, whether sufficient additional elements of dependency have been demonstrated, or more properly, actually exist between the father and the sponsor. The brother naturally wants to leave Gaza to live with the sponsor to avoid the dangers that he and his family face there, but that does not, in itself, mean that there exist such elements of dependency as are envisaged by the autonomous meaning of family life in article 8(1). The father and his family can continue to live in Gaza. They managed to live in Gaza without any long-term support from the sponsor for 17 years before the war. They do not totally depend on him now. He sends money as and when he can. There is a level of emotional support provided by the sponsor to the brother and his family in their calls. No doubt their psychological wellbeing would be improved if the family could leave Gaza. We note the finding that there will be deterioration in the sponsor's PTSD if they cannot.
136. In our judgment, however, none of this amounts to the level of dependence needed to establish family life between adult siblings under article 8(1). The family life envisaged by article 8(1) is primarily that of the core family, normally cohabiting together. The brother and the sponsor have not cohabited for years. They would like to do so, but that is a different thing. The UT referred to an exacting standard which had to be met, but we do not think either it or the FTT applied one. In our judgment, no sufficient family life exists between either the sponsor and the brother or between the sponsor and the family.
6. Applying IA, I find that the danger and discomfort in which the appellants in the instant appeal find themselves in Afghanistan cannot establish family life between them and the United Kingdom sponsor for the purposes of Article 8 ECHR where none otherwise exists. As with the appellants in IA, the appellants in the instant appeal have lived with the sponsor in the past; but, as the Court of Appeal observed, ‘they would like to do so [again], but that is a different thing.’ IA helpfully reminds decision makers that the standard to applied to out of country applications and appeals (bearing in mind that Article 8 ECHR does not enable individuals to choose the jurisdiction in which they may seeks to reside) is ‘an exacting one.’
7. The new evidence which I have detailed above adds nothing to that already before the Tribunal. The sponsor’s work record in Afghanistan and NA’s qualifications not disputed but such evidence does not establish the existence of family ties between adults which engage Article 8 ECHR. Likewise, the MoneyGram receipts show that the sponsor continues to make financial contributions to the family in Afghanistan which no doubt ease the difficulties they face but these do not show a dependency capable of engaging Article 8 ECHR. As with the appellants in IA, there is no evidence to show that the appellants depend upon the sponsor to an extent that exceeds the norm in relationships between non-core family members.
8. Following the setting aside of the First-tier Tribunal’s decision, I considered it necessary to provide the appellants with an opportunity to adduce fresh evidence with a view to proving that ‘additional elements of dependence, involving more than the normal emotional ties’ do exist between the sponsor and the appellants but I find that the new evidence adds nothing. The ‘exacting standard’ to be met is not met in this instance. Applying the law as now articulated and clarified by IA, I find that the evidence now produced, together with that previously out before the First-tier Tribunal, does not show that family life such as to attract the protection of Article 8 ECHR exists between the sponsor and the appellants. That conclusion is sufficient to dispose of the appeal. Accordingly, I remake the decision dismissing the appeals of the appellants against the decisions of the Entry Clearance Officer.
Notice of Decision
I have remade the decision. The appellants’ appeals against the decision of the Entry Clearance Officer refusing them entry clearance to the United Kingdom are dismissed on human rights grounds (Article 8 ECHR).

C. N. Lane
Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 19 May 2026

ANNEXE A

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: Appeal Number:
UI-2025-002979, UI-2025-002982
UI-2025-002984, UI-2025-002987
UI-2025-002989, UI-2025-002990
UI-2025-002991, UI-2025-003002
First-tier Tribunal Nos :
HU/54015/2024, HU/54016/2024
HU/54017/2024, HU/54018/2024
HU/54019/2024, HU/54020/2024
HU/54023/2024, HU/54022/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANE

Between

Secretary of State for the Home Department
Appellant
and

SM (and others)
(ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Ms Blackburn, Senior Presenting Officer
For the Respondent: Mr Winter

Heard at Edinburgh on 15 January 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

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

DECISION AND REASONS
1. Permission to the Upper Tribunal was granted by Upper Tribunal Judge Grey. She limited permission to the issue she addresses at [5] of her grant of permission. The grant also helpfully sets out the background of the appeal so I shall include Upper Tribunal Judge Grey’s summary of the background of the appeal:
1. For the avoidance of doubt, this grant of permission is limited to the specific issues identified at [5] below.
2. The Respondent (as the ECO was in the First-tier Tribunal (FTT)) seeks permission to appeal the decision of First-tier Tribunal Judge Sorrel (the ‘Judge’) promulgated on 24 March 2025 allowing the Appellants’ human rights appeals following the refusal of their family reunion entry clearance applications to join their sponsor (SA), the brother of the lead Appellant (SM), who has refugee status in the United Kingdom. The Appellants are a family comprising SM and his wife and six children. All of the Appellants are nationals of Afghanistan who fear the Taliban as minority Hazara Shia Muslims and because SM was previously working with the international community and has received death threats from the Taliban.
3. The decision under challenge also addresses the human rights appeals of three other members of the Appellants’ family who are currently present in the USA (as asylum seekers having fled Afghanistan in 2020 due to fear of the Taliban). These family members also applied for family reunion to join SA and appealed the refusal of their applications on human rights grounds. Their appeals were dismissed by the Judge and this application for permission to appeal does not concern the appeals of these family members.
4. Together with the grounds and Judge’s decision, I have carefully considered the Respondent’s case before the First-tier Tribunal set out in the Entry Clearance Officer’s refusal decisions and the Review document dated 18 July 2024. I have also considered the Practice Direction from the Senior President of Tribunals: Reasons for decisions of 4 June 2024 and the guidance in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC).
5. The grounds are detailed and are difficult to follow in parts where there appears to be a conflation of the issues of engagement of Article 8(1) ECHR and the proportionality balancing exercise for the purposes of Article 8(2). However, having considered the grounds carefully, the two matters which I consider may have sufficient arguable merit to warrant consideration at a full hearing are as follows:
(i) In view of the nature of the relationship between SM and SFs as adult siblings, whether the Judge has erred in failing to identify what the “more than emotional ties” are that exist between them such as to engage Article 8(1), and
(ii) Whether the Judge failed to adequately acknowledge the strength of public interest in the proportionality exercise given the finding that the Appellants were unable to satisfy the requirements of the Immigration Rules.
2. At the initial hearing before me at Edinburgh, Ms Blackburn, Senior Presenting Officer for the Secretary of State, relied heavily in her submissions on IA [2025] EWCA Civ 1516, a judgment of the Court of Appeal which had been handed down in November 2025, that is after the First-tier Tribunal decision and grant of permission in this appeal. IA clarifies the law as regards Article 8 ECHR and, in particular, with regard to applications for entry clearance.
3. Ms Blackburn acknowledged that the fact that the appellants and the sponsor had previously cohabited was a relevant factor in the appeal but submitted that their wish to cohabit again was not. She noted that at [38] the judge writes:
I am satisfied that on these facts and in applying Kugathas v SSHD [2003] INLR 170, the relationship between the Sponsor and the Appellants is characterised by more than normal emotional ties and therefore, that family life existed between them before the Sponsor fled Afghanistan and has continued to do so. In reaching this view I have taken account of the following.
In the subsequent paragraphs [39-51], the judge purports to give his reasons for that conclusion. Ms Blackburn submitted that those reasons are not adequate. For the appellants, Mr Winter submitted that the judge had been required to weigh the factors for and against the grant of entry clearance outside the rules and that the judge’s conclusions should be respected.
4. Mr Winter is correct to say that an appellate court or Tribunal should hesitate before finding the a fact-finding judge’s reasons are inadequate (see Volpi [2022] EWCA Civ 464). However, in this instance, I find that the judge’s analysis is problematic and ultimately flawed.
5. At [39-40]. The First-tier Tribunal judge found that the sponsor and appellants had ‘always enjoyed a close family relationship and the Appellants were his [the sponsor’s] neighbours.’ Factors [45] in favour of the appellants noted by the judge included the sponsor’s ‘evident distress’ concerning the appellants’ wellbeing. The judge wrote that ‘the need for the Appellants to be reunited with the Sponsor is echoed in the statement of SM and the fear of persecution by the Taliban and significant distress this is causing to SM and his family is evident.’ [my emphasis]. Weighing against the appellants in the Article 8 ECHR analysis, the judge noted that the appellants did not meet the Immigration Rules and that ‘that the Appellants and Sponsor could continue to maintain their family life through modern means of communication and by the Sponsor financially supporting them.’ The fact that the appellant’s cannot meet the requirements of the Immigration Rules is noted but not obviously given significant weight.
6. At [49] of IA, the Court of Appeal noted the attempt by the European Court of Human Rights in Kumari (Kumari v. The Netherlands 44051/20) to summarise the principles of law in cases involving entry clearance and Article 8 ECHR. The ECtHR noted that ‘family life for the purpose of Article 8 of the Convention is normally limited to the core family (see Slivenko v. Latvia [GC], no. 48321/99, §§ 94 and 97, ECHR 2003-X) and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties” …’ ; ‘It follows from the Court’s case-law that the question whether “additional elements of dependency” exist is to be decided on a case-by-case basis. The finding of the existence of “family life” based on “additional elements of dependency other than normal, emotional ties” will often be the result of a combination of elements.’ ; ‘Financial dependency may also play a role in the Court’s analysis of “additional elements of dependency” ; ‘Depending on the circumstances of the case, the Court has found that financial support could be provided from a distance (see, for instance, Berisha v. Switzerland, no. 948/12, § 60, 30 July 2013, and Senchishak, cited above, § 57). … Financial dependency on its own has never been considered sufficient to constitute additional ties of dependency, and accordingly family life between adult family members.’
7. At [50] the Court of Appeal in IA noted that the ECtHR held that, ‘financial assistance provided by the son to the mother had “never been considered sufficient to constitute additional ties of dependency”. Financial dependency, therefore, should attract weight but rarely significant weight and never decisive weight in an Article 8 ECHR analysis. In the instant appeal, the judge has, in my opinion, focussed excessively on the fact that the sponsor supports the appellants financially whilst (as Ms Blackburn submitted) ‘paying only lip service’ to the factors weighing against the appellants in the analysis.
8. Other than financial support (which cannot be enough on its own to establish the extent of additional ties of dependency required to engage Article 8 ECHR) the First-tier Tribunal judge concentrated on the very poor circumstances in which the appellants are currently living in Afghanistan and what he identified as the need to ameliorate those circumstances by reuniting the family in the United Kingdom.
9. That was, in my opinion, the wrong approach as is shown clearly by the judgment in IA. At [157], the Court of Appeal in IA found that ‘The UT’s decision is replete with references to the dire situation faced by the family and the children as a result of the war in Gaza. The SSHD was right to submit that focusing so closely on the effects of the war distorted the balance that had to be undertaken under article 8(2) and was the wrong approach.’ [my emphasis]. I fully appreciate that it is not appropriate to compare too closely the factual matrix in the instant appeal with that in IA or any other authority but it is striking that that Court of Appeal at [172] recorded that it would have given ‘some, but not paramount’ weight to the best interests of children in the family and ‘some, but not great, weight’ to the anxiety … of the sponsor, and the plans he had made to accommodate the family’, a factor strikingly similar in the instant appeal to which the judge evidently attached great weight. In IA, the Court of Appeal would also have attached weight (but not great or significant) weight to the difficult physical circumstances of the appellants living in war-torn Gaza. Set against the moderately significant weight attaching to such factors in favour of the appellants in IA, the Court of Appeal noted that ‘considerable weight had to be attached at a general level’ [my emphasis] to the fact that the family in IA could not meet requirements of the Immigration Rules. Ultimately, the Court of Appeal found that ‘it is a question of respect for the UK’s laws and democratic process, and for the SSHD’s decisions as to what is necessary to protect the economic well-being of the UK and the rights of citizens of the UK.’ For the ‘considerable weight’ attaching to those factors to be overcome by the appellants ‘very exceptional or compelling circumstances had to be shown for entry clearance to be granted outside the Rules.’ In the instant appeal, I agree with Ms Blackburn that the judge has given excessive weight to the wishes of the appellants and the sponsor to be reunited and to the poor living circumstances of the appellants which can be ameliorated by that reunion. The judge has also failed to show that, whilst having enjoyed close relationships in the past and having previously cohabited, the relationship between the adult sponsor and the adult appellants has aspects going beyond financial dependency; reading the First-tier Tribunal’s decision, there are no other factors which could legitimately be described as being very exceptional or compelling. Moreover, whist the judge says that he has attached weight to factors in favour of the Secretary of State’s case, there is nothing in the judge’s analysis which comes close to showing that sufficient, let alone considerable, weight has been attached to those factors.
10. Mr Winter submitted that the Upper Tribunal should not interfere with the weight attached by the First-tier Tribunal to particular items of evidence. The conclusions of the fact-finding Tribunal in that exercise should be respected. In principle, I agree, but in practice in this appeal the judge’s weighing of the various factors is distorted to the extent that is, in short, wrong in law. I do not criticise that the First-tier Tribunal judge for having sympathy with the circumstances in which members of this family find themselves but he has moved away from an objective assessment of the evidence to a conclusion which he has failed to justify by adequate reasoning. Accordingly, I set aside his decision. I accept the submissions of both advocates that the evidence is uncontroversial and that the decision can be remade in the Upper Tribunal.
Notice of Decision
The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The decision shall be remade in the Upper Tribunal (Upper Tribunal Judge Lane) at a resumed hearing in Edinburgh on a date to be fixed.
The parties may adduce new evidence provided copies of any such evidence is filed at the Upper Tribunal and served on the other party no less than 10 days prior to the resumed hearing.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 22 January 2025