Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003052

First-tier Tribunal No: HU/51710/2024
LH/00117/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th February 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

ZAFAR HUSSAINI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Osmani, Times PBS
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 7 November 2025

DECISION AND REASONS
1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 13 May 2025, dismissing the appellant’s appeal against the refusal of entry clearance of 1 February 2024. The decision of the First-Tier Tribunal was set aside by a panel of the Upper Tribunal by decision and reasons issued on 7 October 2025 (see annex below). The First-Tier Tribunal’s findings that it was not disputed by the respondent that the marriage between the appellant and sponsor was genuine and subsisting, albeit they had only spent a very short time together as husband and wife and that Article 8 was engaged were preserved.

Background
2. The appellant is a citizen of Afghanistan. He applied for entry clearance on 12 December 2023 as the spouse (marriage on 26 August 2023 in Iran) of the sponsor Nazdana Rawan, a citizen of Afghanistan in the UK with limited leave obtained in the circumstances set out at paragraph 2 of the error of law decision annexed. His application was refused on the sole basis that he did not meet the eligibility relationship requirement because the sponsor held only limited leave to enter outside the rules and was not in the UK with refugee leave or humanitarian protection. It was accepted that the financial requirements and English language requirements were met. It was not accepted that there were any exceptional circumstances which could or would render refusal a breach of Article 8 ECHR.
3. The sponsor had applied for further leave to remain in-time, but her application had not been determined at the date of the hearing. I was told that her mother and sister who had leave on the same basis as she, had obtained further leave to remain.
4. The following facts were uncontentious:
(i) That the appellant and sponsor had only lived together in Iran between the date of their marriage on 26 August 2023 and 15 September 2023;
(ii) That at the time of the application for entry clearance the appellant was living in Pakistan, he having a multiple-entry tourist visa (60 days at a time) for Pakistan valid from 13 November 2023 to 12 May 2024;
(iii) That the sponsor is living in a property with her brother, her sister-in-law, her mother and her sister;
(iv) That the sponsor suffers with mixed anxiety and depressive disorder (from medical records diagnosed on 2 June 2025) for which she is taking 100 mg Sertraline daily. She also suffers with polycystic ovary syndrome.
The remaking hearing
5. It was agreed that the issue was proportionality and that the sponsor would be treated as a vulnerable witness.
6. Mr Osmani apologised for serving his skeleton argument only on the morning of the hearing in breach of directions, but said that fortunately he had managed to incorporate references in it to the appellant having been deported from Pakistan to Afghanistan; the sponsor had only been informed of this the evening before.
7. I discussed with the representatives the case of IA and others v Secretary of State for the Home Department which had just been heard in the Court of Appeal and judgment was awaited. I concluded that the facts were very different; this was the case of a husband and wife where Article 8 was accepted to be engaged, and I did not consider that it was necessary to await judgment in that case.
8. I heard evidence from the sponsor through a Pashto interpreter. The sponsor confirmed the truth of the contents of her witness statements dated 2 July 2024 and 26 August 2025. I gave leave for additional examination in chief so the sponsor could explain the current location of the appellant and how she found out about it. The sponsor was then cross-examined and re-examined and I asked her some questions, giving Mr Osmani leave to ask further questions after my questions. I refer to the evidence as necessary below when coming to my conclusions.
9. After hearing evidence, I heard submissions from the representatives. Mr Tufan said that the appellant had to show that the refusal would result in unjustifiably harsh consequences for the appellant and/or sponsor. She could not. The appellant had been living in Pakistan originally on a visitor’s visa; it was asserted that he had been deported back to Afghanistan, but we only had the sponsor’s oral evidence to confirm that. There was no documentary evidence, one might have assumed photographs of documents could be provided. It was just assertion. Even if the sponsor was telling the truth and the appellant was now in Afghanistan, married life could be continued in Afghanistan. The sponsor would not be in danger of forced marriage as she was already married. He said it was bold to say that the CPIN meant that the respondent’s policy was that women were at risk of persecution per se in Afghanistan. The sponsor would have male protection in Afghanistan now and married life would be continued there. We discussed the recent CPIN on healthcare and Mr Tufan acknowledged that the sponsor would need to access healthcare but said that married life could still be continued in Afghanistan.
10. Mr Osmani relied on his skeleton argument. He said this was a situation like family reunion. One half of a married couple fled and another remained. The tribunal who had allowed the sponsor’s appeal had recognised that the sponsor needed some sort of protection. At the time of the appeal the sponsor had been engaged and there was already a relationship there with the appellant. He said I could observe the sponsor’s state of mind. She panicked for a lot of reasons and on the balance of probabilities she had difficulties articulating what she meant. Mr Osmani invited me to conduct a free-standing Article 8 assessment along the lines of Al-Hassan and others (Article 8; entry clearance; KF (Syria)) [2024] UKUT 234. He reminded me of the material he had referred to at the error of law hearing about the risk to women in Afghanistan and that the original decision had been set aside because the judge had not properly considered risk. He referred me to paragraph 3.7.1 of the current CPIN on risk from the Taliban which set out that women and girls were subject to widespread and systematic discrimination which in general amounted to persecution.
11. I had raised in the hearing that the sponsor’s engagement to the appellant was simply not mentioned in the earlier appeal. Mr Osmani submitted (and went into some detail to show) that when the sponsor was living in Afghanistan, the appellant could not have provided her with protection because he was not her husband; a fiancé could not be a mahram or male relative chaperone. He submitted that he relied on the FCDO advice about the dangers of going to Afghanistan; there was a risk to those who had a link to the UK and people could tell if you had lived in the UK.
12. There were multiple exceptional circumstances he submitted. The sponsor was vulnerable and she had leave outside the rules for compassionate reasons. The appellant himself was at risk in Afghanistan as the brother-in-law of a person who had worked for the previous government and who had been recognised as a refugee. The application for the sponsor to come to the UK had been made in May 2021. The family were feeling unsafe and the risk became even more serious when the Taliban took over. There was no third country option for the appellant and sponsor. The sponsor’s entire family was now based in the UK, and the appellant was in hiding in Afghanistan. There would be no freedom for the couple in Afghanistan. There would be no burden to the state in the appellant coming to the UK; he would be likely to work and not rely on third party support, or any access to public funds. In total there would be unjustifiably harsh consequences for the appellant and sponsor if the refusal decision was upheld.
13. I reserved my decision after the hearing. When coming to prepare my decision I noticed that Mr Osmani had filed additional written submissions referring to IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516 following its promulgation. I gave time to the respondent to make further submissions which they did on 22 January 2026 and I said I would decide the case after that without further reference to the parties. I have taken the additional written submissions on behalf of the appellant and respondent into account when coming to my decision.
My conclusions on disputed/not accepted facts
14. I approach the evidence presented with caution. The reason I approach the evidence presented with caution is that there are inconsistencies.
15. When the sponsor’s appeal was heard the case was presented to the First-Tier Tribunal on the basis that the family were in difficult circumstances in Afghanistan without a male chaperone and the sponsor and her younger sister would be deprived of the opportunity to complete their education in Afghanistan. The original application for the sponsor’s entry clearance (made before the Taliban takeover when she was 17) had stressed the risk of forced marriage as it was said to be considered immoral for young women of marriageable age to be on their own without a male guardian.
16. In allowing the sponsor’s appeal, the First-Tier Tribunal did not find that the sponsor was a refugee. There was no mention of specific threats from the Taliban. The judge allowing the appeal found it compelling that the sponsor and her younger sister would be deprived of the opportunity to complete their education.
17. I find it striking that the case now is that the sponsor was engaged in February 2021 at the age of 17 to the appellant said to be her cousin. There was no mention of such engagement in the papers for her entry clearance application or appeal or at the hearing before the First-Tier Tribunal. Mr Osmani went to great lengths in re-examination of the sponsor before me to show that an engagement was completely different from a wedding in Afghan culture and that a fiancé cannot be a mahram and an engaged couple cannot live together and so a fiancé could not provide male protection in the way a husband could. I accept all that. That rather misses the point. Failing to mention the engagement to the First-Tier Tribunal judge is leaving out a very important part of the picture. The sponsor was said to be at risk of forced marriage and without male protection but she could avoid that risk by marrying her fiancé; the sponsor was said to be being deprived of an education, but she was engaged under the age of 18 and the family’s plan (this being an arranged marriage) was that she would marry young. I note that in the sponsor’s first witness statement for this appeal, (at [24]) she explains that in Afghan culture engagements are typically short-lived and marriages are arranged relatively quickly.
18. Despite the witness statements stressing that the appellant and sponsor were engaged in February 2021, at the hearing of this appeal before the First-Tier Tribunal, when the sponsor was cross-examined her evidence was inconsistent. She said initially that she had first met the appellant in Iran (i.e. for or just before the marriage). She then said that the appellant was her cousin and they were engaged in February 2021 and she had intended to bring the appellant to the UK in due course [26]. She was asked to clarify in re-examination whether she was engaged before or after she applied for entry clearance and she said that it was after the application for a visa had been made [28]. The application for the visa was made in May 2021, so the engagement could not both have been in February 2021 and after the visa application was made.
19. Mr Osmani stressed that the differences in evidence were because the sponsor was a vulnerable witness and was confused. However there remained differences in evidence before me. In answer to my questions the sponsor confirmed to me that the appellant was her maternal cousin, it was an arranged marriage and when asked when they became engaged, she told me in February 2021 and they had met before the wedding because she knew him before the wedding as he was her close cousin. They had kept in touch since they had become engaged. When I asked the sponsor if she knew why her engagement had not been mentioned when she applied to come to the UK, she said that she had the visa before she was engaged, even though there was some communication beforehand. I explained to her that she could not both have been engaged in February 2021 and had the visa before she was engaged. It took her some time to understand but she appeared to understand and said that the engagement was definitely after she had received the visa.
20. The appellant’s visa application is inconsistent with the proposition that the appellant and sponsor are related outside marriage and so had met before marriage. In answer to the questions in the visa application the appellant said he had first met the sponsor in August 2023, and their relationship had begun in August 2023.
21. I appreciate the sponsor is a vulnerable witness and that those who have depression and anxiety can be stressed and confused. I also appreciate that the sponsor’s education has been interrupted and I am aware that specific dates do not have the importance in Afghan culture that they do in Western culture. I find it significant that the sponsor was confused about the date her husband went to Pakistan. She said in cross-examination that it was November 2022, but when I asked her whether she meant November 2023 (as that was the date on his visa) she readily agreed.
22. Putting the evidence together I am simply not satisfied that it is more likely than not that the appellant and sponsor were formally engaged before the sponsor obtained her visa for the UK. I consider that the sponsor’s confusion is more likely to be about the date of her engagement than when in her life it occurred.
23. Even if I am wrong and the appellant and sponsor were formally engaged before the sponsor applied for entry clearance (and I observe if that was the case the family did not disclose relevant matters to the First-Tier Tribunal deciding the sponsor’s appeal) I find family life was not established before they were married and lived together. I see no reason to doubt the couple are related outside marriage, but they lived in different households and once they both reached puberty and began to take on the roles of young men and women in Afghan culture, they are unlikely to have had much to do with each other; although they may have been in touch since engaged they would not have been meeting each other on their own even if they were both living in the same country.
24. The sponsor’s case was also that her husband has very recently been deported to Afghanistan. The sponsor’s evidence was that he had been in Afghanistan for 2 days, but she only found out yesterday. His phone had been switched off but she managed to get in touch with him the evening before the hearing; she had called him and spoken to him directly. She said in cross-examination that he was suddenly deported although they were expecting that he might be deported because of the general situation for Afghan people in Pakistan. He did not know beforehand that he was going to be deported. The sponsor said that she had tried to phone him and for 2 days there was no answer and his number in Pakistan appeared to be switched off. Then she received a phone call from him from a completely different number. What she said before had been wrong, she had not called him, he had called her eventually.
25. I appreciate that the sponsor is a vulnerable witness and in that context the fact that she first said she had called the appellant and then said that no he had called her is not as significant as it might otherwise have been. Nevertheless it is an inconsistency. Mr Tufan’s point was that there was no documentary evidence of the appellant being deported or his presence in Afghanistan. Whilst I appreciate that there might not be the same type of documents as are produced in the UK when a person has been removed from the country, nothing was produced in evidence, not even a screenshot of the appellant’s new phone number in Afghanistan or evidence of the voice call between the appellant and sponsor or messages.
26. I bear in mind that lack of documentary evidence even though it would have been possible to provide some evidence if only a call record. I also bear in mind the inconsistencies described above in relation to the marriage/engagement and the distinct impression given by the revelation in the appellant’s appeal of the apparent pre visa application engagement not mentioned in the sponsor’s appeal that the family are concerned to say what is helpful at the time rather than whether it is the strict truth. Taking those matters together although I am satisfied that there is a reasonable degree of likelihood that the appellant has now have been deported to Afghanistan (i.e. the lower standard applicable in asylum claims), I am not satisfied of that fact on the balance of probabilities, that is that it is more likely than not.
27. I find however that it is likely that the appellant will at some stage be forced to return to Afghanistan. His position in Pakistan is extremely precarious as he has outstayed his visa, which was only a visit visa, and the background material indicates that there are crackdowns on Afghan nationals found in Pakistan. Although the material relevant to mass deportations dates from the autumn and winter of 2023, and the appellant obviously escaped the mass deportations at that time, there is no suggestion that the attitude of the Pakistani authorities has changed.
28. I am not satisfied however even to the lower standard applicable in asylum claims that the appellant is at fact at risk or would be at risk in Afghanistan. The FCDO advice is clearly relevant to British nationals rather than those living in the country. The appellant, whilst away from Afghanistan for a couple of years, (since the autumn of 2023), from the evidence lived in Afghanistan under Taliban rule and so is not completely unfamiliar with the conditions. The sponsor said in evidence that her husband would have problems in Afghanistan because her brother had worked for the previous government but this was not the way it was put previously in evidence, rather there was a general assertion in the sponsor’s first witness statement that the links with family members living in Western countries would put her husband at risk and in the second witness statement [9] that the Taliban could target her husband directly “because of his association with me and with my family members who are now established in the UK and who fled Afghanistan after the Taliban takeover”. I note that in cross-examination before the First-Tier Tribunal judge who first heard the appellant’s appeal, the sponsor referred to being in danger in Afghanistan because they were receiving threats from the Taliban due to her brother having fled the Taliban (she was not sure whether this was in 2018 or 2005) because he had worked for the Afghan government [27]. This evidence did not appear in the sponsor’s witness statements as a threat to her should she return to Afghanistan, neither was it something which featured in her and her mother and sisters’ appeal. I am not satisfied it represents the truth as I consider if it did it would have featured prominently in the witness statements.
29. I have no detail of the sponsor’s brother’s refugee claim. I understand he was recognised in the UK as a refugee, but on the evidence in the sponsor’s appeal he must have fled some time before the Taliban came to power in August 2021. I am simply not satisfied even to the lower standard applicable in asylum claims bearing in mind the scant evidence and taking to account the background evidence, as I explain in the paragraph below, that the appellant would be at risk because his now brother-in-law fled the Taliban some years before they came to power. I am also not satisfied that he would be at risk because his wife and her family are in the UK as I explain below.
30. I have no evidence that the appellant was threatened because of the connection with his maternal cousin (the sponsor’s brother) at the time he left Afghanistan. He was able to obtain a visa for Pakistan in Afghanistan; he was able to travel to Iran. It is said that he is now in Afghanistan and that he was beaten on deportation, but beaten by the Pakistani authorities. It is obviously not said that he was detained on arrival in Afghanistan and not suggested that he was questioned about family links or immediate action taken against him. The recent CPIN of August 2025 – Fear of the Taliban suggests at 3.3 that the available information does not indicate that former government officials or civil servants are targeted to the effect that they are in general at real risk of persecution. The general amnesty is said to apply to such officials, and it is said that reports on targeting tend to conflate the treatment between people in official or advisory jobs with those in active police or military roles. I note the specific background material “No forgiveness for people like you” in the appellant’s objective bundle documents the enforced disappearance of former members of the Afghan National Security Forces and the targeting of their family members (p 504 of bundle). It has not been suggested to me that the sponsor’s brother was a member of the security forces. So far as association with a family living in the West is concerned, the CPIN explains (at 3.10) that there is no clear evidence of the Taliban targeting returnees or people who have lived in the West specifically on that basis. There is nothing in the UNHCR guidance note in evidence (which is relatively old, February 2023, I believe since then there has been an updated guidance note) to suggest that those with family in Western countries fall into a group which has a protection need.
31. That being the case, even though I have considered there is some exaggeration by the family (the sponsor said the appellant was now living with relatives, not at his home address and in a dark room, not leaving the house) and there is not a real objective risk, I do not doubt the appellant would subjectively be frightened on return and the sponsor would be frightened for him. The appellant does not support the Taliban, and it is understandable to fear what might happen if the Taliban were really interested to investigate all his connections and his family links even though there is not an objective basis for the fear. I am not satisfied even to the low standard applicable in asylum claims that the appellant would be forced to live in hiding because of the objective risk to him.
32. As far as the general humanitarian situation in Afghanistan is concerned, the appellant is, I find, better able to withstand it than many. He has only been away for a couple of years, he is able to stay with relatives, and the sponsor, who sent him financial support in Pakistan, would also be able to send financial support to Afghanistan.
33. I have said that I accept that the sponsor is frightened for the appellant, and I accept this is the case whether the appellant is in Pakistan or Afghanistan. I accept that the sponsor’s fears for the appellant and their separation are playing a part in her mental health difficulties. I appreciate that in the culture from which the sponsor comes married women are expected to live with their husbands and start a family, and the fact that the sponsor is married but not with her husband is likely to put an added pressure on her. Nevertheless, the appellant and sponsor only lived together for a very short period. I accept they have kept in touch since then, but I simply have pages of untranslated screenshots and voice messages, most of which are not even dated, and where they are dated, date back to the autumn of 2023. I can assess very little from that and I find it unlikely that the appellant would be the sponsor’s sole emotional support given their cultural background and their short time living together. The sponsor has the support of her family in the UK with whom she has lived all her life and would naturally be closest to her. I am not told that her anxiety and depression is so bad that it prevents her working.
34. I accept however that family life could not be realistically enjoyed anywhere other than the UK. I have not been satisfied that the appellant is not still in Pakistan, but he clearly would not be able to leave Pakistan and return. There is evidence that Afghanistan is not one of the countries from which an online visa to Pakistan would be issued and one can readily envisage that if the sponsor were to declare the true reason for her visit to the Pakistan authorities they would be reluctant to grant her entry to visit a husband who was present illegally and unlikely to believe that she was a genuine tourist.
35. Despite Mr Tufan’s submission that the appellant could be protected by her husband in Afghanistan, and family life could be continued there, I find it is clear from the CPIN that the position in Afghanistan has worsened from the position as it was at the time of the sponsor’s appeal, and that women are subject to widespread and systematic discrimination. The CPIN says at 3.1.3 that women are likely to be at risk from the Taliban and at 3.7.1 that since the Taliban came to power they have gradually restricted women’s social and political rights and limited the areas of public life they can engage with and “women and girls are subject to widespread and systematic discrimination which in general amounts to persecution.” Their freedom of movement is restricted, and they are prevented from accessing employment, as well as education, and a strict dress code is required of them. It is not only lone women who face those problems. The CPIN on healthcare and medical treatment of October 2025 describes at 4.5.1 that women faced nearly insurmountable barriers to receiving health care due to Taliban restrictions on work, travel and male-female interactions as male doctors were not permitted to treat female patients except in life-threatening cases and even then, only if accompanied by a mahram. Female doctors could be consulted, but they were difficult to find. In those circumstances, the sponsor would not only face widespread and systematic discrimination but difficulties accessing the healthcare that she needs. I am satisfied that together they are obstacles preventing family life from being continued in Afghanistan.
The legal framework
36. It is accepted that the appellant cannot meet the requirements of immigration rules. GEN 3.2 of Appendix FM explains that where there are exceptional circumstances which would render refusal of entry clearance a breach of Article 8 of the European Convention on Human Rights because such refusal would result in unjustifiably harsh consequences for the applicant or their partner (in this case) then the applicant would be granted entry clearance.
37. Case-law explains that the “exceptional circumstances” resulting in “unjustifiably harsh consequences” is simply a different way of saying that refusal of entry clearance amounts to a breach of Article 8 ECHR.
38. The case of IA turned on the existence of family life. Clearly here family life exists. The case also explained that the unitary nature of family life meant that “Whilst persons seeking to enter an ECHR state from outside the jurisdiction of the ECHR will not have their own rights under article 8, if they have pre-existing family life with a person within the territory of the ECtHR, article 8 may impose a positive obligation on a state to admit those people, if they have family life with a person within the territory. That is what is meant by family life being unitary (see [141] under ground 2 below). The concept of unitary family life does not, however, mean that the state is under a positive obligation to admit every member of the wider family of the person within the territory of the UK”.
39. It is instructive to consider what the Court of Appeal said at [141] - [144]. They said at [141] that the respondent was at least partly right to say that the article 8 rights of the family outside the UK were not directly engaged. At [142] “Moreover, even if family life had existed between the sponsor and the brother or between the sponsor and the family, that would not have meant that the article 8 rights of the brother or the family outside the UK were the main focus of the proportionality exercise under article 8(2). The main focus of that exercise would have been the family life of the person within the jurisdiction of article 1 (here, the sponsor), but that family life had to be considered as being a unitary family life with his brother or the family outside the UK. The unitary family life of the brother with his own family outside the UK is also not the focus of the proportionality exercise.”
40. That was not a distinction without a difference because it was the sponsor within the jurisdiction who had the right to respect for their family life and the requirement only encompassed family outside the UK because interference with the family life of one was necessarily interference with the family life of the other [143]. Significantly, they said that it was unhelpful for the Upper Tribunal to rely on Al Hassan and KF (Syria).
41. The Court of Appeal also gave some helpful conclusions about proportionality, which although obiter, were informed by detailed consideration of case law. They explained that the strength of family life was relevant [151] - “Had such family life existed, the tribunals would have been entitled to consider, in determining how much weight to accord to it in the article 8(2) balance, the circumstances in which it had come into existence, the type of family life that was concerned, the length of time it had existed and its likely future development. It was relevant that the sponsor and the family had not cohabited after the Gaza conflict began and that the core family would continue to live together even if entry clearance were refused. It was also relevant that the relationship had been rekindled in the knowledge that the family had no right to enter the UK, and that if their applications failed, the sponsor would not be joining them in Gaza (see [103] and [106] above). This is the approach of the ECtHR; the strength of family ties is relevant to proportionality: see [32] of AW Khan (at [44]-[45] above)”
42. They also reiterated at [167] “The decision as to what is necessary in UK society to protect the economic well-being of the UK and the rights of citizens of the UK is the business of the SSHD and the Government. The courts must, as Lord Reed said in Agyarko, and we would respectfully endorse, attach considerable weight to the SSHD’s immigration policies at a general level, alongside considering all the factors which are relevant to the particular case”.
43. Following section 117A of the Nationality, Immigration and Asylum Act 2002, when determining whether a decision breaches the appellant and sponsor’s right to respect for private and family life, and considering the question of whether the interference is justified under Article 8 (2), I must have regard to the considerations listed in section 117B.
44. The relevant considerations are as follows:
“S117B
(1) The maintenance of effective immigration controls is in the public interest.
(2) 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...
(3) 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 financially independent …”
Application of the facts to the law
45. There is family life between the appellant and sponsor, and Article 8 (1) is engaged. Refusing to grant the appellant entry clearance interferes with that family life.
46. The nature and quality of that family life is important to assess. It is family life between spouses which would normally be developed by the couple living together. I have found that the couple cannot realistically live together anywhere other than the UK. If the appeal is dismissed, they are likely to have to live apart until the sponsor qualifies under immigration rules to sponsor the appellant. Until then they are likely to be restricted to contact by telephone/videocall/social media. Nevertheless, although I bear in mind that family life between spouses is normally developed by living together, on any view of the facts as I have explained, this couple began family life when the sponsor was living in the UK and not as a refugee. The couple have only lived together for a few weeks. The couple must have known that the sponsor would not be returning to Afghanistan and the appellant’s status in Pakistan was extremely precarious and would not enable him to bring a spouse to join him, so that they must be taken to have married and formed family life in the knowledge that it might have to be continued at a distance. This is not a case similar to El Ghatet v Switzerland application no 56971/10, referred to by Mr Osmani, which was described as involving aliens who already had a family life which they left behind in another country (see [45] of that case). This is a crucial distinction, and of course that was also a case involving children.
47. When conducting the proportionality balance, I do give weight to the family life between the appellant and sponsor, but I do not give it great weight as I do not consider it to be a strong family life for the reasons I have explained bearing in mind the basis on which it began.
48. I give weight to the effect of the separation and the fears for her husband on the sponsor’s mental health although bearing in mind that the sponsor is not on her own in the UK but surrounded by her family with whom she has always lived and who undoubtedly support her as I have explained above.
49. I give only very limited weight to the appellant’s own fears. Whilst acknowledging them, I have not found them to be objectively well-founded and following IA, the main emphasis is on the effect on the sponsor in the UK and her family life. This is not a case on my findings where family life might be extinguished because of the risks to the appellant.
50. The appellant speaks English, can be supported by the sponsor and he plans to work himself, if he comes to the UK. He is therefore financially independent. This is neutral in the proportionality balance.
51. When considering the public interest, I do attach considerable weight to the respondent’s immigration policy as IA reminds me I must do. That policy expressed in the rules is that those with limited leave outside the rules cannot sponsor their husband to enter the UK. I observe, because I consider it relevant when considering the respondent’s policy more generally, that the family reunification route for spouses was suspended at the date of the hearing, but even when it was operational, it only applied to a spouse who had formed part of the refugee’s family unit at the time before the sponsor left their country to seek protection. Even ignoring that the sponsor’s appeal was not allowed on the basis that she was a refugee, the appellant and sponsor did not marry until a year or so after the sponsor left Afghanistan. I appreciate that on my findings it might be that the sponsor might now qualify as a refugee, but she does not have refugee leave and she made the decision to apply to renew her leave outside the rules, rather than to apply for asylum. If she did have such refugee leave she would be able to sponsor a spouse on the same basis as those settled in the UK, but the income requirement has increased since the appellant’s application was made. The evidence (although not completely up to date) reveals that the sponsor was earning £24,000 (although her payslips show slightly less £1,900 per month). In other words, I have no evidence that the appellant could qualify under immigration rules as at the date of hearing even if the sponsor had had refugee leave at that point.
52. So I weigh the couple’s family life and the fact they can only enjoy it in the UK coupled with the effect of the situation on the sponsor’s mental health and, to a very limited extent the appellant’s fear, against the strong public interest in the maintenance of effective immigration controls. Despite the fact the couple can only realistically live together in the UK, I consider the public interest outweighs the appellant and sponsor’s interests and I do not consider that there are exceptional circumstances amounting to unjustifiably harsh consequences for the appellant and sponsor. It will be difficult for them, particularly for the sponsor, to continue to be apart, but they have only lived together for a limited period, family life was formed in the knowledge it was not going to be continued in Afghanistan and that the couple would be separated unless the appellant could gain entry clearance for the UK and fortunately the sponsor is not alone but has the support of her family in the UK.
53. The respondent’s decision does not therefore breach Article 8 ECHR.
Notice of Decision
On remaking, I dismiss the appellant’s appeal.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 February 2026

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003052

First-tier Tribunal No: HU/51710/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7/10/2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

ZAFAR HUSSAINI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Osmani, Times PBS
For the Respondent: Mr Ojo, Senior Home Office Presenting Officer

Heard at Field House on 10 September 2025

DECISION AND REASONS
1. The appellant is a national of Afghanistan. He appeals with permission against the decision of the First-Tier Tribunal (“the FTJ”) promulgated on 13 May 2025 to dismiss his appeal on human rights grounds against the respondent’s refusal of entry clearance to join his wife, Nazdana Rawan, a national of Afghanistan with limited leave to enter the UK.
Background
2. Nazdana Rawan obtained limited leave to enter after she had successfully appealed a refusal of entry clearance to (with her mother and sisters) join her brother, a refugee in the UK. At the time of application she was a minor. A First-Tier Tribunal judge (“FTJ1”) held (after a hearing in April 2022) that:
(i) Her father was still alive [63];
(ii) That the family in Afghanistan were financially supported by the brother in the UK [67] and were emotionally dependent on him so that Article 8 was engaged [74] [75];
(iii) If Nazdana Rawan and her younger sister remained in Afghanistan they would not be given the opportunity to complete their education, and significant weight was to be placed on the loss of this opportunity which made their circumstances particularly compelling [78];
(iv) The reports in the media did not suggest that Nazdana Rawan, her mother and sisters could not leave the house without a male chaperone, rather short gentle walks could be taken by unaccompanied females [79];
(v) That Nazdana Rawan and her sister would be deprived of the opportunity to complete their education was so compelling that it was sufficient to outweigh the public interest [82];
(vi) Nazdana Rawan’s mother and her adult sister would face an extremely difficult situation in Afghanistan with drought, poverty, unemployment, difficulties accessing healthcare and basic services. The family had lived together as a unit in Afghanistan and the purpose of the family reunion provisions was to reunite families fleeing persecution. Refusal amounted to a disproportionate interference also with the other appellants’ family life [83] – [85].
3. The FTJ who heard the appeal which is under challenge noted that the respondent did not dispute that this appellant and Nazdana Rawan were in a genuine and subsisting marriage and although he noted some inconsistencies in the evidence when they first met and in relation to the marriage, assumed that Article 8 (1) was engaged. He said that the appellant had not discharged the burden of proving that family life between him and Nazdana Rawan could not continue in Afghanistan as “the reasons relied upon by the sponsor in her witness statement as establishing that she cannot be expected to live in Afghanistan were all decisively rejected by [FTJ1]”. He concluded that FTJ1 had rejected a suggestion that the family were at risk due to the changed political climate and concluded that Nazdana Rawan could look to the appellant and his family in Kabul for protection now she was married and that although, as a woman, she would not be able to access higher education in Afghanistan, she had no legitimate expectation of being able to follow her immediate family in the UK for a better life and at the same time to sponsor her cousin unless or until the relevant eligibility requirements of Appendix FM were met, including the requirement to obtain settled status.
Grounds of Appeal: Discussion and Findings
4. There are five grounds of appeal. We consider, as we told the representatives at the hearing, after discussion, that grounds 1, 2 and parts of ground 3 taken together are made out. That means that the FTJ did not give adequate reasons for concluding that the appellant had not shown that family life could not be continued in Afghanistan. That was clearly central to his proportionality assessment and so means that the decision must be set aside.
5. We find that the FTJ should have considered the position of women in Afghanistan at the date of the hearing before him (ground 1). Whilst the rule 24 response and Mr Ojo in his submissions rightly reminded us that the hearing before FTJ1 was eight months or so after the Taliban takeover in Afghanistan, the hearing before the FTJ took place around three years after the hearing before FTJ1. The position had changed. The appellant’s bundle before the FTJ (although it did not contain the then most recent CPIN on Afghanistan – Fear of the Taliban of August 2024) did contain a great deal of background material about the position of women and girls in Afghanistan. The FTJ did not refer to it in his decision.
6. It was the appellant’s case before the FTJ that family life could not be continued in Afghanistan at least in part because of the extreme restrictions imposed by the Taliban towards women. Ground 2 refers to the FTJ disregarding the heightened risk to women and refers to case law. The European Court of Justice concluded in AH and FN v Bundesamt fur Fremendwesen und Asyl C-608/22 and C-609/22 (4 October 2024) based on amongst other material, the country guidance of the European Union Asylum Agency of January 2023, that a well-founded fear of being subjected to acts of persecution would in general be substantiated for Afghan women and girls in view of the measures adopted by the Taliban regime. We cannot trace that the FTJ was specifically referred to this decision at the hearing, but as we note, he did not consider the background material produced by the appellant. We observe that the then-current CPIN of August 2024 (at 3.1.3) indicated that one of the groups likely to be at risk from the Taliban included women.
7. Ignoring the parts of ground 3 which refer to whether the appellant could provide protection from Pakistan, it is right to say that even taking the view that the appellant would be able to provide his wife with male support in Afghanistan, this cannot be said to remove the potential risk to Nazdana Rawan from the Taliban’s measures against women.
8. On the face of it therefore, the position for women in Afghanistan appears to have worsened in the three years between the hearing before FTJ1 and the FTJ. It was an error for the FTJ not to have considered in the light of background material whether the position had changed since the hearing before FTJ1 and then to explain his conclusion giving reasons. He did not do so. Bearing in mind the case-law to which we have been referred and the contents of the CPIN, the error was clearly a material one. If simply being a woman or girl is sufficient to be at risk in Afghanistan, then that is clearly highly relevant to whether family life between the appellant and sponsor can be carried on in Afghanistan, and whether family life can be continued in Afghanistan is clearly highly relevant to the proportionality balance.
9. As the FTJ therefore did not properly approach the proportionality balance, the decision must be set aside.
10. We do not need to consider grounds 4 and 5 in detail bearing in mind our findings, but we do not consider there is anything in those grounds. The inconsistencies pointed out by the FTJ did not affect his conclusions; the comment about legitimate expectation does not indicate that the FTJ was not well aware of the broad Article 8 assessment required.
11. After discussion with the representatives, and considering the requirements of the Practice Direction and Practice Statement, we consider that the appeal should be retained in the Upper Tribunal for remaking. The remaking will involve considering the proportionality balance rather than extensive fact-finding.
12. The FTJ noted that it was not disputed that the marriage was genuine and subsisting and he concluded that Article 8 (1) was engaged. There being no challenge to those findings, as set out at [31] and [34] of the FTJ’s decision, they should be preserved.
13. The appellant does not seek to rely on any further evidence other than that already submitted with an application under rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. We give permission for that evidence to be adduced on remaking.

Notice of Decision
The judge’s decision contains errors of law and is set aside.
The appeal will be retained in the Upper Tribunal for remaking.
The findings at [31] and [34] of the judge’s decision are preserved.
Permission is given to rely, for the purposes of the remaking hearing, on the additional evidence served with an application under rule 15 (2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Directions
The remaking hearing will be listed with a time estimate of 3 hours before at least one member of this panel if at all possible.
The Upper Tribunal will provide a Pashtu interpreter for the remaking hearing.
The appellant is to file and serve an updated skeleton argument at least 5 days before the remaking hearing.
Any skeleton argument by the respondent is to be filed and served at least 3 days before the remaking hearing.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2025