Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-003165
UI-2025-003170
First-tier Tribunal Nos: HU/50497/2024
HU/50498/2024
LH/06841/2024
LH/06842/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of September 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

NAILAH FATIHAH NABACWA
HISHAM WAMALA
(NO ANONYMITY ORDER MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr A Chohan, instructed by Dabby Solicitors
For the Respondent: Mr J Nappey, Senior Home Office Presenting Officer

Heard at Field House on 23 September 2026

DECISION AND REASONS

1. The appellants appeal, with permission, against the decision of First-tier Tribunal Judge Monson (“the judge”) promulgated on 27 May 2025 dismissing their human rights appeals against the respondent’s decisions dated 4 and 5 January 2024 refusing them leave to enter the United Kingdom.
Background
2. The appellants are siblings and citizens of Uganda. Nailah was born on 26 April 2006 and Hisham on 11 December 2007. On 8 October 2023, they applied for entry clearance to the United Kingdom as the dependent children of a parent who is present and settled in this country. Their sponsor is their father, Mr Denis Wamala, who resides in the United Kingdom with the appellants’ stepmother and half-siblings. Their biological mother is said to be in the United States, where she has claimed asylum. The appellants’ case is that their father has sole responsibility for them.
3. By decisions dated 4 and 5 January 2024, the respondent refused the appellants’ applications for entry clearance. The respondent was not satisfied that the sponsor had sole responsibility for the appellants, nor that he would be able to maintain and accommodate them in the United Kingdom without recourse to public funds. She therefore concluded that the requirements of paragraph 297 of the Immigration Rules were not met. The respondent further considered whether there were exceptional circumstances warranting a grant of entry clearance outside the Rules but concluded that there were none.
4. The appellants were granted a right of appeal against those decisions.
The decision of the First-tier Tribunal
5. The appellants’ appeals were heard by the First-tier Tribunal on 12 May 2025. By that date, Nailah had reached the age of 19, whilst Hisham was 17 years old. In a decision promulgated on 27 May 2025, the judge found that there were numerous inconsistencies in the evidence before him. He did not accept that the appellants’ biological mother had abdicated responsibility for them. Whilst he accepted that she was no longer in Uganda and that the appellants’ stepmother was now living in the United Kingdom with the sponsor, he found that the appellants were cared for on a day-to-day basis by an aunt, Irene. He therefore concluded that the sponsor did not have sole responsibility for the appellants within the meaning of paragraph 297 of the Immigration Rules.
6. Furthermore, the judge was not satisfied that the sponsor could maintain and accommodate the appellants in the United Kingdom without recourse to public funds. He reached that conclusion on the basis that the sponsor was also responsible for five other minor children in the United Kingdom and had failed to provide sufficient evidence to demonstrate that he and his partner had the financial means to support all seven of them.
7. The judge then considered whether the respondent’s decisions amounted to a disproportionate interference with the appellants’ right to respect for family life. He took into account the fact that the appellants did not meet the requirements of the Immigration Rules and that there was insufficient evidence to demonstrate that the refusals would result in unjustifiably harsh consequences for them. He therefore concluded that the appellants’ Article 8 rights did not outweigh the wider public interest, including the legitimate aims of protecting the economic well-being of the country and maintaining firm and effective immigration control.
The appeal to the Upper Tribunal
8. On 15 July 2025, First-tier Tribunal Judge McMahon granted the appellants permission to appeal on a single ground, namely that the judge had failed to consider their best interests as children when conducting the Article 8 ECHR proportionality assessment.
The hearing
9. At the outset of the hearing, I informed the parties that, in my view, given that permission to appeal had been granted on a narrow basis, if I were satisfied that the judge had made a material error of law it would be possible to proceed immediately to the remaking of the appeal, as all of the factual findings made by the First-tier Tribunal could be preserved. I afforded the parties an opportunity to discuss that course of action between themselves. They agreed that, in the event that a material error of law were found, the appeal could proceed directly to remaking on the basis of submissions only.
10. I heard submissions from both representatives in relation to the ground of appeal, which are recorded in the record of proceedings. Having considered those submissions, I indicated to the parties that I was satisfied that the judge had made a material error of law. I therefore proceeded to hear further submissions from both representatives regarding the appellants’ best interests, following which I reserved my decision.
11. In reaching my decision, I have had regard to the contents of the consolidated hearing bundle of 799 pages filed on behalf of the appellants.
PART A: ERROR OF LAW
Discussion – error of law
12. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact made by a judge are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection, or inadequate reasoning that prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of the appellant’s appeal.
13. The judge’s decision is detailed and, for the most part, adequately reasoned. However, the appellants are correct to observe that at no point does the judge expressly address their best interests. Mr Nappey submitted that this omission was immaterial because, when the decision is read as a whole, it is apparent that the judge had regard to the appellants’ ages and, implicitly, to their best interests. I do not accept that submission. Reading the decision fairly and as a whole, I am unable to discern what the judge considered the appellants’ best interests to be, still less how those interests were taken into account as a primary consideration in the proportionality assessment.
14. In CAO v Secretary of State for the Home Department [2024] 2 WLR 847, the Supreme Court said the following at [54]:
“…where the FTT determines an appeal it becomes the relevant decision-maker, superseding the Secretary of State, and if the FTT does not refer to or seek to apply section 55 [of the Borders, Citizenship and Immigration Act 2009] in its own decision-making, it has not failed to act in accordance with the law so far as its own decision is concerned. Its legal duty is to comply with article 8, including by having regard to the best interests of the child as a primary consideration. If the FTT has done that and, as in the present case, has not committed any other error of law, then its decision (which becomes the relevant determinative decision affecting an appellant’s Convention rights) is “in accordance with the law” within the meaning of article 8(2) and cannot be impugned on the basis that it is not.”
And at [64]:
“64. With respect, therefore, we cannot agree with Baroness Hale’s obiter comment in ZH (Tanzania) [2011] 2 AC 166, para 24, which implies (without saying in terms) that the FTT itself has to comply with either of the duties in section 55(1) or (3). Pill LJ interpreted it in that way in AJ (India) [2012] Imm AR 10, para 24, where he said that Baroness Hale “plainly contemplated that the tribunal must consider section 55”. However, at para 28 he also said that it appeared from ZH (Tanzania), para 33, that Baroness Hale “has incorporated the section 55 test within the proportionality assessment under article 8”. Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.”
[Underlining added]
15. In those circumstances, I am satisfied that the judge erred in law. Although he considered the proportionality of the respondent’s decisions under Article 8, he failed to identify or assess the appellants’ best interests and did not treat those interests as a primary consideration as required by the authorities. That omission was material to the proportionality assessment. I therefore set aside the decision of the First-tier Tribunal to that limited extent.
Disposal – error of law
16. The error identified above does not affect any of the judge’s findings of fact, all of which are preserved. Nor does it affect his conclusion that the appellants are unable to satisfy the requirements of paragraph 297 of the Immigration Rules. The parties were agreed that no further findings of fact were required. I am therefore satisfied that the appropriate course is to retain the appeal in the Upper Tribunal and proceed to remake the decision so far as it concerns the proportionality assessment under Article 8.
PART B: REMAKING
The parties’ submissions – remaking
17. On behalf of the appellants, Mr Chohan accepted that all of the judge’s findings of fact were preserved. He also accepted that both appellants were now adults. He submitted, however, that the appellants’ best interests fell to be assessed by reference to their circumstances at the date of application, when both had been minors. He argued that any delay in the resolution of the appeal could not be attributed to the appellants and should not deprive them of the benefit of a best interests assessment.
18. Mr Chohan submitted that the appellants were not leading independent lives. Their biological mother was no longer involved in their upbringing and they enjoyed family life with their father and stepmother. He submitted that their father and stepmother had made arrangements for their care, education and financial support, and that the sponsor had travelled to Uganda to maintain contact with them during school holidays. In those circumstances, he argued that the appellants’ best interests were to join their father and stepmother in the United Kingdom, as they were best placed to meet their needs and provide them with support and care. He submitted that no one else could adequately fulfil that role. Whilst accepting that the Tribunal could not revisit the preserved findings concerning the maintenance requirement, Mr Chohan nevertheless submitted that the sponsor had been willing and able to provide the appellants with accommodation and support in the United Kingdom.
19. On behalf of the respondent, Mr Nappey submitted that the Article 8 assessment fell to be conducted as at the date of the Upper Tribunal hearing. He noted that both appellants had by then reached adulthood and submitted that this was a powerful factor against the appeals succeeding outside the Immigration Rules. He emphasised that the findings made by the First-tier Tribunal, including the conclusions that the sponsor did not have sole responsibility for the appellants and could not satisfy the maintenance and accommodation requirements of paragraph 297, were preserved and remained highly material to the proportionality assessment.
20. In the alternative, Mr Nappey submitted that even if the Tribunal were to assess the appellants’ best interests by reference to their circumstances when they were children, the preserved findings demonstrated that responsibility for their upbringing was shared with other relatives in Uganda, including Irene, who provided day-to-day care for them. He further submitted that there was no evidence demonstrating that the appellants’ needs were not being met in Uganda or that their circumstances could not continue in the manner found by the First-tier Tribunal. In those circumstances, he submitted that the appellants’ best interests were to remain in Uganda. He further argued that, even if the Tribunal were to accept that their best interests lay in joining their father and stepmother in the United Kingdom, that factor was outweighed by the preserved findings relating to maintenance and accommodation and by the fact that the appellants were now adults.
21. In reply, Mr Chohan referred to Gurung v Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 as an authority showing that the Tribunal had to look at the facts, and therefore the appellants’ ages, as they were on the date of decision. He maintained that the appellants’ best interests were to be with their father and stepmother rather than other relatives and submitted that this remained the decisive consideration in their favour.
Discussion – remaking
Whether the Tribunal is still required to consider the best interests of the appellants now that they are adults
22. When the appellants applied for entry clearance, Nailah was 17 years old and Hisham was 15 years old. They were also minors when the respondent refused their applications. However, by the date of the remaking hearing, Nailah was 20 years old and Hisham was 18 years old. The general position is that an appeal under Article 8 falls to be determined by reference to the facts as they exist at the date of hearing. I must therefore first consider whether the appellants’ best interests remain a relevant consideration notwithstanding that they have since become adults.
23. I am not satisfied that the case of Gurung identified by Mr Chohan provides any assistance. In that case, the Court of Appeal was concerned with the question of whether the First-tier Tribunal should have assessed the appellant’s Article 8 claim by reference to the facts as they stood at the time of the second refusal of his application for entry clearance or the first. The Court held that the relevant date was the date of the second decision. But, at that time, the First-tier Tribunal was constrained by ss.85(5) and 85A(2) of the Nationality, Immigration and Asylum Act 2002, which provided that in appeals against a refusal of entry clearance, the judge could only consider the circumstances appertaining at the time of the decision. Section 85A was, however, repealed on 20 October 2014.
24. Neither representative was able to direct me to any domestic authority dealing directly with the question of whether a tribunal, when conducting an Article 8 assessment, must consider the best interests of an appellant who was a child at the time of application and decision but who is over the age of 18 by the date of hearing.
25. However, in Martinez Alvarado v the Netherlands (Application no. 4470/21), the European Court of Human Rights (“ECtHR”) stated at [45]:
“In the context of family reunification ... when one of the family members was a minor at the time the request for family reunification was lodged, the Court will assess the question on the existence of “family life” based on the situation as it obtained on that date in order to avoid that a child “ages out” pending the proceedings.”
26. That passage reflects the approach previously adopted in El Ghatet v Switzerland (Application no. 56971/10). There, the second applicant was 15 and a half years old when the application for family reunification was made but he reached the age of 18 before the domestic proceedings concluded. Although the Swiss courts considered his adulthood meant that he could not benefit under Article 8, the ECtHR continued to examine the case by reference to his position as a child at the time of the application. In particular, the Court expressly considered his best interests as a child and emphasised that, in family reunification cases, those interests must be placed at the centre of the balancing exercise: see [46], [51] and [53].
27. Whilst both Martinez Alvarado and El Ghatet concerned family reunification claims, neither was in the context of refugee reunion and I consider the principle that underlies them to be applicable to the present appeals in which the appellants also seek to join a parent in a Contracting State. The appellants were children when they applied for entry clearance and when the respondent’s decisions were made. The material error of law identified in the First-tier Tribunal’s decision was the failure properly to consider their best interests. In those circumstances, I do not consider that their best interests can fairly be disregarded merely because they have ceased being children during the course of the appeals process. To do so would risk depriving them of a consideration which may be of material relevance to the Article 8 assessment. I shall therefore assess what the appellants’ best interests were as children and treat those interests as a primary consideration in the proportionality assessment.
28. Mr Chohan submitted that it was in the appellants’ best interests to live in the United Kingdom with their father and stepmother. Mr Nappey, however, contended that their best interests were to remain in Uganda, where they had spent their entire lives and where, on the preserved findings of the First-tier Tribunal, there is no evidence that their needs are not being met.
The Article 8 proportionality assessment
29. The respondent has not taken issue with the appellants’ claim to enjoy family life with their father, nor does she contend that her decisions do not interfere with that family life. The question, therefore, is whether the decisions to refuse entry are proportionate.
30. In assessing the proportionality of the decision to refuse the appellants entry to the United Kingdom, I take into account the findings made by the First-tier Tribunal that they do no meet the requirements of paragraph 297 of the Immigration Rules. That is a weighty, although not determinative, factor on the respondent’s side of scale. Also worthy of significant weight is the First-tier Tribunal’s finding that the sponsor would be unable to maintain and accommodate the appellants without recourse to public funds.
31. I therefore turn to the appellants’ side of the scale. Although family life is unitary, the central focus of the proportionality assessment must be on the sponsor, as he is the person within the jurisdiction: see IA & Others v Secretary of State for the Home Department [2025] EWCA Civ 1516, at [141]–[143]. I accept that he wishes for the appellants to join him, and his other children, in the United Kingdom. I also accept Mr Chohan’s submission that he continues to play a role in their lives, through financial support and visits. Nevertheless, I am bound by the findings of the First-tier Tribunal that the appellants are also cared for by Aunt Irene in Uganda and there are no reasons to believe that their needs are not being met. As the First-tier Tribunal also found, there is insufficient evidence to show that that the appellants would face unjustifiably harsh consequences if not admitted to the United Kingdom.
32. I therefore turn to the appellants’ best interests. I remind myself that those interests are a primary, though not paramount, consideration. In El Ghatet, at [51], the ECtHR accepted that the father's custody rights suggested that it would be in the child’s best interests to live with him, but emphasised that this could not be the decisive factor. The Court also attached weight to the fact that the child had spent almost all of his life in his country of origin, had strong social, cultural and linguistic ties there, was being adequately cared for, faced no threat to his welfare, and, at the age of 15 and a half, was “not as much in need of care as young children”.
33. There are a number of similarities with the present appeal. I accept Mr Chohan’s submission that, in general, a child’s best interests will ordinarily be served by living with a parent. However, that consideration is not determinative. By the date of application, neither appellant was a young child. Nailah was 17 years old and Hisham was 15 years old. They had spent their entire lives in Uganda and were fully integrated into life there. The preserved findings of the First-tier Tribunal establish that they were being cared for on a day-to-day basis by Aunt Irene and that there was no evidence that their needs were not being met. Nor is there evidence of any threat to their welfare. Taking those matters together, I find that, whilst it would have been in the appellants’ interests to be reunited with their father in the United Kingdom, their best interests did not strongly favour relocation here and were also capable of being met in Uganda.
34. Considering all the circumstances in the round, and treating the appellants’ best interests as a primary consideration, I am not satisfied that their and their sponsor’s circumstances are sufficient to outweigh the strong public interest factors. I therefore find that the respondent’s decision to refuse them entry clearance does not amount to a disproportionate interference with their right to a family life.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
All findings of fact are preserved save for the judge’s assessment of proportionality under Article 8 ECHR.
The decision is remade by dismissing the appellants’ appeals on human rights grounds.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25th September 2026