Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003110

First-tier Tribunal No: HU/51432/2024
LH/08014/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 September 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
and
DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

IFAT SHAHEEN
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr A Pipe, instructed by IQ Legal Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 1 September 2025

DECISION AND REASONS

1. The appellant is a Pakistani national who was born on 12 September 1987. She appeals with the permission of First-tier Tribunal Judge Mulready against the decision of First-tier Tribunal Judge Hawden-Beal (“the judge”). By her decision of 1 June 2025, the judge dismissed the appellant’s appeal against the refusal of her human rights claim.

Background

2. The appellant is the second wife of Mr Arif Hussain, the sponsor. Mr Hussain is a British citizen. They married in Pakistan in August 2013. They have three sons together, MAH, MSA and MYH. The children are 11, 8 and 7 years old respectively. They are British citizens by birth and they live with the sponsor.

3. The sponsor is still married to his first wife. They live together in Banbury. He works as a driver and is in receipt of Universal Credit. His first wife does not work. They have four children, all of whom continue to live at home. The older two have attained their majority and are said to be financially independent. The younger two, both daughters, are minors.

4. The five-bedroom family home therefore contains three men, three women and the appellant’s three sons. They live next door to the appellant’s sister, who provides the family with a good deal of assistance because the sponsor’s first wife cannot speak English. Another of her sisters lives close by and also provides assistance with the children.

5. On 17 October 2023, the appellant sought entry clearance as the spouse of the sponsor. It was said in the application form that nobody other than the sponsor and the three children lived in the family home. The sponsor was said to have earned £12,307 in the preceding financial year and it was accepted that he could not meet the Minimum Income Requirement. In the section of the form which asked for additional information, this was written:

I am making the application on the basis of GEN 3.2 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 my children who are British Citizens. My children attend school in the UK and this is having an affect on them. They are not able to live without me. One of my son has learning difficulties and I need to look after him. I am the biological mother and it is in their best interest that I look after them. The seperation [sic] is having an emotional impact on them.

6. A covering letter from the appellant’s former representatives added some further detail, by clarifying that it was the appellant’s second son, MSA, who had learning difficulties and was “virtually deaf”.

7. The ECO refused the application on 18 January 2024. She was not satisfied that the appellant met the following requirements of the Immigration Rules:

(i) Validity of marriage (E-ECP 2.7)
(ii) Financial requirement (E-ECP 3.1)
(iii) English Language requirement (E-ECP4.1)

8. The respondent was not satisfied that the refusal of the application would be in breach of Article 8 ECHR because family life could continue in Pakistan or could be maintained by way of visits.

The Appeal to the First-tier Tribunal

9. The appellant gave notice of her appeal to the First-tier Tribunal. Her appeal was duly heard by the judge, sitting in Nottingham on 19 May 2025. The appellant was represented by Mr Pipe of counsel, as he was before us. The respondent was represented by a Presenting Officer (not Mr Ojo).

10. The judge heard oral evidence from the sponsor and from the appellants’ sisters. She then heard submissions from the advocates before reserving her decision.

11. The judge’s reserved decision was issued on 1 June 2025. She set out the background to the case and the evidence before the tribunal at [1]-[21]. At [6], she recorded that Mr Pipe had accepted that the appellant was unable to meet the Immigration Rules and that his submissions were in reliance on Article 8 ECHR outside the Rules.

12. At [23]-[26], the judge directed herself on the law, during which she made reference to R (Razgar) v SSHD [2004] UKHL 27; [2004] 2 AC 368 and Hesham Ali v SSHD [2016] UKSC 60; [2016] 1 WLR 4799.

13. The judge set out her findings at [27] et seq. She answered the first four Razgar questions concisely at [27]-[30] and focused thereafter on the question of proportionality. In answering that question, she turned firstly to the best interests of the children. She directed herself to the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4; [2011] 2 AC 166 as part of that analysis. She recalled that the children are British; that there were entitled to “all the rights and benefits” which that entailed and that “there has never been a suggestion from the respondent that they should leave the UK and return to Pakistan.”

14. At [33], the judge noted that the appellant is the sponsor’s second wife; that she had not passed an English language test; and that he was unable to meet the Minimum Income Requirement. He was already in financial difficulty, including mortgage and utility bill arrears.

15. At [34]-[47], the judge undertook a balancing exercise in which she weighed the competing considerations under Article 8(2). Amongst other matters, she took into account that the children missed their mother; that the appellant and the sponsor would have known that she would have to remain in Pakistan but that a choice had been made to bring the children to the UK; that the appellant’s ability to assist with the children was in doubt because her English ability was unproven; that it was in the best interests of the children to be raised by both parents; that it is the sponsor who has parental responsibility for the children; that there had been a good deal of disruption to the children’s education but they were now more settled.

16. The critical parts of the judge’s reasoning in relation to proportionality are to be found at [43] and [45]. Given their importance, and given Mr Pipe’s criticism of the former paragraph, it will assist to set them out in full:

[43] I am not satisfied that there is anything exceptional in this appeal such that the refusal of entry clearance would cause unjustifiably harsh consequences for the appellant and more importantly for her sons. She and the sponsor wanted them to come to the UK for better education and better health care and that is what they are getting as British citizens. The fact that the sponsor is in financial difficulties and his sons’ education and health care needs mean that he has to prioritise them over his ability to work extra hours in his employment, is not an exceptional circumstance, it is life.

[44] …

[45] But is the decision proportionate and I have to find that it is since I find that there is nothing exceptional under paragraph GEN 3.2. It is not unfair. That is a consequence of not meeting the immigration rules in the first place. There is no expectation by the respondent in the refusal letter that the children should go back to Pakistan because they are British children and entitled to live here with all the benefits which such citizenship gives them, which is what the sponsor and the appellant wanted for them in the first place and which they are now enjoying.

17. Having referred once more to the requirements of the Immigration Rules and to Part 5A of the Nationality, Immigration and Asylum Act 2002, the judge dismissed the appeal.

The Appeal to the Upper Tribunal

18. Mr Pipe settled three grounds of appeal to the Upper Tribunal.

19. The first ground is that the judge misdirected herself in law in law in her assessment of proportionality. The second ground is that the judge had left material matters out of account in her balance sheet assessment. (In both of these grounds, Mr Pipe asserted that the judge had focused on her disapproval of the sponsor and not on the best interests of the children or the proportionality of the respondent’s decision.) The third ground is that the judge had erred in observing that the respondent had “never” suggested that the children could relocate to Pakistan, as that was contended in the letter of refusal.

20. Judge Mulready considered each of those grounds to be arguable. The respondent filed a response to the grounds of appeal under rule 24, opposing the appellant’s appeal.

Submissions

21. Mr Pipe submitted that the first two grounds alleged that the judge had fallen into the error described at paragraph 3 of the judicial headnote to Kaur (children's best interests/public interest interface) [2017] UKUT 14 (IAC): “In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.”

22. Mr Pipe submitted that the judge’s apparent disapproval of the sponsor’s conduct had coloured her assessment of the best interests of the children in contravention of that guidance. That was apparent from [38] and [43] of the judge’s decision in particular. The judge had failed to conduct a lawful assessment of the children’s best interests and had failed to undertake a lawful proportionality assessment as a result. In addition, the judge had erred in her suggestion that the respondent had never submitted that the family could relocate to Pakistan; that was clearly asserted in the ECO’s decision.

23. For the respondent, Mr Ojo submitted that the decision was open to the judge. The relevant factors, including the best interests of the children, had been carefully considered by the judge, who had evidently taken care to direct herself to relevant authority. The appellant was unable to meet the Rules by a considerable margin and that was relevant to the assessment of proportionality, as the judge understood. The judge had taken proper account of the second son’s circumstances as part of her holistic assessment.

24. In reply, Mr Pipe asked us to consider one of the documents to which the judge had referred. This was a “Wheel of Life” conducted by social services, which showed that the children’s circumstances were far from settled whilst their mother remained in Pakistan.

25. We reserved our decisions on the question of whether there was a material error of law in the FtT’s decision and on the relief which should follow in the event that we found such an error.

Analysis

26. It was accepted before the judge that the appellant was unable to meet the Immigration Rules for three reasons.

27. As Mr Pipe conceded in the helpful skeleton argument before the FtT, the sponsor was domiciled in the United Kingdom when he married the appellant, and their marriage was accordingly invalid. We also observe that paragraph 278 of the Immigration Rules contains a clear prohibition on the admission of polygamous spouses to the United Kingdom.

28. It was also accepted that the appellant had not attempted to meet the English Language requirement which was introduced into the Immigration Rules in 2010. Paragraph E-ECP 4.1(b) of Appendix FM required her to have passed an English language test in speaking and listening at the A1 level, which was described by Baroness Hale as “very basic” at [21] and [54] of R (Ali & Bibi) v SSHD [2015] UKSC 68; [2016] Imm AR 270.

29. Finally, it was accepted by Mr Pipe that the sponsor’s earnings, stated to be a little more than £12,000 in the application for entry clearance, were insufficient to meet the Minimum Income Requirement in the Immigration Rules, which was at that time £18,600. (For applications made after 11 April 2024, it is £29,000).

30. It is clearly established that each of these requirements has a legitimate aim. Baroness Hale spoke of the importance of promoting social cohesion in Ali & Bibi and of the importance of a couple not having recourse to welfare benefits and having sufficient resources to play a full part in British life in R (MM (Lebanon) & Ors) v SSHD [2017] UKSC 10; [2017] Imm AR 729.

31. In the correct case, it might be shown that these legitimate stipulations in the Immigration Rules have a disproportionate effect on the family concerned, such that the appeal can be allowed on Article 8 ECHR grounds. But the extent of this appellant’s inability to meet the Rules meant that this was a very difficult case indeed before the First-tier Tribunal. It was undoubtedly for that reason that the case developed for the appellant was focused carefully by Mr Pipe on the best interests of the appellant’s three children.

32. In considering that question, it is clear that the judge made the mistake alleged in Mr Pipe’s third ground, in that she proceeded on the basis that the Secretary of State had “never” suggested that these British children could relocate to Pakistan. The judge was wrong in that suggestion; that was clearly one of the submissions made in the refusal letter. We suspect that the Presenting Officer decided not to advance that submission orally before the judge, which was why she fell into the error she did. But nothing turns on that error. The judge discounted a submission which might have been of some assistance to the Secretary of State, and there is nothing in her decision which begins to suggest that the judge somehow held the point against the appellant, as Mr Pipe sought at one point to submit.

33. The real focus of Mr Pipe’s challenge is instead to be found in the first two grounds and in his reference to the decision of McCloskey J in Kaur. The question is whether the judge allowed her consideration of the children’s best interests to be clouded by her evident disapproval of the sponsor’s conduct in removing the children from school and ‘disappearing’ to Pakistan for a lengthy period in 2024.

34. We accept Mr Pipe’s submission that there are parts of the judge’s decision which might have been better expressed. The reference to the sponsor having “disappeared” in [34] is unfortunate, as is the observation “it is life” at the end of [43]. We accept that the judge was concerned to mark her disapproval of certain aspects of the sponsor’s conduct.

35. Ultimately, however, it is for the Upper Tribunal to apply proper judicial caution and restraint when considering whether to set aside a decision of a specialist fact-finding tribunal: SSHD v HA (Iraq), at [72], per Lord Hamblen. Reasons for judgment will always be capable of having been better expressed and structured. Decisions should not be subjected to narrow textual analysis or picked over or construed like a contract or a statute: Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48, at [2], per Lewison LJ. The focus must be on the way that the judge performed the essence of the task required of her: Yalcin v SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626, at [67], per Underhill LJ.

36. In the instant case, there can be no doubt that the judge understood that she should consider the best interests of the children first; that they were a primary consideration in her assessment of Article 8 ECHR; but that they could be outweighed by the cumulative effect of other considerations. So much is clear from the very structure of her decision and from her reference to ZH (Tanzania) v SSHD.

37. The judge took careful account of the evidence which she had heard from the sponsor and from the appellant’s two sisters. She understood the important role played by the children’s British nationality in her assessment, and she proceeded on the basis that the children were to stay in the United Kingdom. She recognised that the children missed their mother “dreadfully” and that it would be in their best interests to be raised by both parents. But she quite properly proceeded to undertake a more holistic assessment of that multi-faceted question, taking into account the arrangements which were in place to ensure that the children could attend school and the provision which was made there to ensure that MSA was able to receive an education despite his profound hearing loss. The judge took into account the fact that the sponsor was “struggling to juggle the education of his sons” but she did not accept that the presence of the appellant would ameliorate those difficulties to the extent suggested.

38. Having taken careful account of the best interests of the children, and having weighed other factors which militated in favour of the appellant’s admission, the judge took account of the fact that she was unable to meet the Immigration Rules by some margin, and she also took account of section 117B(1) of the 2002 Act. Having done so, she concluded that the respondent’s decision would not bring about unjustifiably harsh consequences and she dismissed the appeal.

39. Whilst we accept that certain aspects of the judge’s decision could have been better expressed, it is quite clear that she understood the essence of her task and that she reached lawful conclusions on the issues before her. We do not accept that her consideration of the best interests was tainted by the disapproval she expressed of the sponsor’s actions. Nor do we accept that she failed to come to grips with the realities of this family’s lives. She reached comprehensive findings of fact on the sea of evidence before her and she applied the law correctly to those findings of fact. This was a difficult Article 8 ECHR case for the appellant, for all the reasons we have set out above, and the judge gave lawful and adequate reasons for dismissing it. To interfere with the decision of the FtT would be to ignore the need for proper appellate restraint.

Notice of Decision

The decision of the First-tier Tribunal contains no material error of law. The appellant’s appeal is dismissed. The decision of the FtT shall accordingly stand.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 September 2025