Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-003319
UI-2025-003318

Ft T Nos: HU/52180/2025; LH/01634/2025
HU/52196/2025; LH/01635/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 October 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
NA (FIRST APPELLANT)
AA (SECOND APPELLANT)
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mrs A Nolan, Senior Presenting Officer
For the Respondents: Ms J Theilgaard, Counsel, instructed by RAMFEL

Heard at Field House on 7 October 2025

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
Introduction
1. For ease of reference I shall refer to the parties as they were before the First-tier Tribunal: therefore the Secretary of State is once again “the Respondent” and NA and AA are “the Appellants” and “the first Appellant” and “the second Appellant”, respectively).
2. The Respondent appeals with permission against the decision of First-tier Tribunal Judge Sweet (“the judge”), promulgated on 5 June 2025. By that decision, he allowed the Appellants’ appeal against the Respondent’s refusal of their human rights claim. That claim had been made in the context of an application for entry clearance in order to join the first Appellant’s son and the second Appellant’s brother in the United Kingdom (“the Sponsor”). The Sponsor was at the date of the hearing a minor and has been recognised as a refugee in this country. Until he turned 18 in July of this year he had been in foster care. Another son of the first Appellant also resides in the United Kingdom; he is now a British citizen.

The judge’s decision
3. The judge’s decision is concise (I will return to that in due course). He noted the Appellants’ acceptance that they could not meet the substantive relationship requirements of Appendix Family Reunion (Protection) to the Immigration Rules (that Appendix was deleted on 4 September 2025). However, the Appellants relied on paragraph FRP 7.1, which provided that where the relationship requirement could not be met an applicant may nonetheless succeed if they could demonstrate that there were “exceptional circumstances” which would render a refusal of the application in breach of Article 8 rights on the basis that such a refusal would result in “unjustifiably harsh consequences for the applicant or their family member”.
4. It is appropriate to set out the entirety of paragraphs 9 and 10 of the judge’s decision:
“9. I am persuaded on the balance of probabilities that the appellants can meet this requirement. This is on the basis that the sponsor came to the UK in 2021 and was granted refugee status on 31 October 2022. He currently lives with his foster parents, but his position when he reaches the age of 18 (in July 2025) is not clear. On arrival in the UK [the Sponsor] made contact with his brother, [XX], who is currently aged 23, but he is not able to provide care to his younger brother, because he is living elsewhere and engaged in studies for his future career.
10. I am satisfied on the basis of the evidence, including the appellants’ precarious status in Pakistan and the possibility that they will be expelled to Pakistan, the health issues of the first appellant and (as set out in LB Merton social worker’s report of 15 April 2025 and CLCH Looked after children Nurse letter of 1 May 2025) of the sponsor, the strong family emotional bonds, the foster carer’s letter of 15 April 2024 and the independent social worker’s report (Harriet Layfield) of 19 August 2024 and 18 April 2025, that it is in the best interest of the sponsor and the appellants for the family to be reunited. If not, there would be a breach of their Article 8 ECHR rights.”
The judge accordingly allowed the appeal.

The grounds of appeal and grant of permission
5. The Respondent puts forward three grounds. First, it is said that the judge failed to provide adequate reasons for his conclusion that there were exceptional circumstances. The ground makes reference to the concise nature of the judge’s decision. There is mention of the fact that the family reunion route is “principally designed for the pre-flight spouses and children of sponsors with refugee status in the United Kingdom.” It was, states the grounds. reasonable to expect people to apply under the “most appropriate route available”. That point was described as a “key part of the refusal letter” and it is said that the judge failed to engage with or make findings on the points raised in that letter. A number of other specific points are made, but need not be set out here.
6. The second ground is entitled “Placing determinative weight on the circumstances of the appellants in Pakistan when assessing the issue of proportionality.” That is followed by the following passage:
“It is respectfully submitted that the FTTJ has materially erred by giving any or substantial weight to the circumstances of the appellants in Pakistan when considering whether Article 8 of the ECHR would be breached by refusing the appellants entry to the UK. It is asserted that the FTTJ should only be concerned with whether the sponsor’s family life with the appellants would be disproportionately interfered with by refusing the appellants entry to the UK.”
7. It is then asserted that the judge was precluded from considering the private life of the appellant given the territorial scope of the Human Rights Act 1998 and the ECHR. The judge is criticised for placing too much weight on the Appellants’ circumstances in Pakistan, which were described as “immaterial to the assessment of whether family life can continue as it exists currently”.
8. The third ground clearly asserts that the judge erred by considering the Article 8 rights of the Appellants “rather than only considering the Article 8 family life rights of the sponsor.” This is what may be described as the family life territorial issue. Reference is made to a number of authorities including Beoku-Betts v SSHD [2008] UKHL 39. It is asserted that the reported decision of the Upper Tribunal in Al Hassan and Others (Article 8; entry clearance; KF(Syria)) [2024] UKUT 234 (IAC) is wrong “insofar as it treats the ’unitary’ nature of family life as a basis for extending the UK’s obligations under the ECHR (solely in respect of Article 8) to individuals who are outside the UK’s jurisdiction.”
9. Permission was granted on all grounds although the permission judge only engaged with the first ground.

Rule 24
10. The Appellants subsequently provided a detailed Rule 24 response to the grounds of appeal.

The hearing
11. At the outset I asked Mrs Nolan if she could confirm whether any of the matters raised in the second and third grounds had in fact been argued before the judge. With her customary candour, she accepted she was unable to show that they had been argued. Ms Theilgaard (who appeared below) did confirm that none of the points had been raised by the Presenting Officer. In the circumstances I have no reason to doubt Ms Theilgaard’s word from the Bar and I am satisfied that the matters in question were not in fact canvassed at first instance.
12. Mrs Nolan confirmed that there was no perversity challenge before me. She relied on the unamended grounds of appeal. She submitted that what was contained in paragraph 10 of the judge’s decision was simply a list, without findings or reasons. It was, she submitted, unclear why the judge had concluded that there were exceptional circumstances. Reasons had been “wholly lacking”. In respect of the second ground, Mrs Nolan accepted that weight was a matter for a judge, but submitted that in this case he had placed too much weight on the Appellants’ circumstances in Pakistan and had treated that as a determinative factor. As regards the third ground, Mrs Nolan confirmed that she was not intending to argue that Al Hassan was wrongly decided. Her submissions on this ground to a large extent replicated what she had said in respect of the first ground.
13. Ms Theilgaard relied on the Rule 24 response and her skeleton argument (the latter closely followed the former). She confirmed that none of the evidence referred to by the judge at paragraph 10 of his decision had been challenged below. The Respondent had failed to identify any appropriate alternative route for the Appellants to have made an application. She submitted that the judge had appropriately understood the legal test and had taken relevant circumstances into account, both in respect of the Sponsor’s circumstances in this country and the Appellants’ circumstances in Pakistan. The content of the unchallenged evidence was all supportive of the nature and quality of family life and the significant impact on that as a result of continuing separation. In a real sense, the evidence constituted the reasoning. Ms Theilgaard submitted that the concise nature of the decision was in keeping with the Senior President of Tribunals’ Practice Direction and it was sufficiently clear from the decision as a whole, specifically paragraphs 8–10, that the Respondent did know why the judge had come to the conclusion he did.
14. In respect of the second and third grounds, Ms Theilgaard submitted that they overlapped. The grounds were wrong to have asserted that the judge relied on private life, when he in fact was concerned with family life. The Appellants’ circumstances in Pakistan were clearly relevant to the overall assessment and there was a direct connection between the Sponsor in this country and the Appellants. The third ground of appeal failed to acknowledge that the Respondent herself took account of the circumstances of individuals outside of the United Kingdom when considering applications: examples of this are contained within the Rules and her guidance.
15. There was no reply from Mrs Nolan.
16. At the end of the hearing, I announced to the parties that I was dismissing the Respondent’s appeal on the basis that the judge’s decision did not contain any material errors of law, with reasons to follow.

Reasons
17. In carrying out my error of law task I have reminded myself of the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal. I have borne in mind all of the relevant pronouncements from the Court of Appeal and Supreme Court on what is and is not required for a first instant decision to be sustainable. In addition, I have taken account of the SPT’s Practice Directions, “Reasons for decisions”, published on 4 June 2024, and that published on 1 November 2024. Concise decisions are desirable, reasons need not be extensive and need only indicate why one party has succeeded and the other not. The fact that the judge’s decision in the present case is short does not of itself disclose an error of law.

Ground 1
18. It is clear that the judge understood the relevant provision within the Appendix containing the exceptional circumstances test. Indeed, he set out the nature of that test in terms at paragraph 8. There is no reason to suggest that he was unaware of the stringent nature of the applicable threshold.
19. It is important to recognise that none of the evidence relied on by the judge had been challenged by the Respondent. I agree with Ms Theilgaard’s submission that that evidence in effect constituted the reasoning of the judge, as set out in paragraph 10 of his decision. The content of the unchallenged evidence was strongly supportive of the Appellants’ case in respect of the family life between them and the Sponsor in the United Kingdom. The judge did not need to refer to the various items of evidence in detail because it is clear that he accepted it all at face value and placed weight on each piece in isolation and cumulatively. The same applies to what the judge said at paragraph 9 in respect of the Sponsor’s circumstances in this country.
20. The Respondent was aware of the content of the evidence and that is an important contextual aspect to be considered when determining whether she was sufficiently able to discern why the Appellants had succeeded in their appeal. The Respondent may well disagree with the outcome, but that is not the same as identifying an absence of adequate reasons.
21. I wish to deal with a specific point raised under the first ground, namely the appropriateness of the route pursued by the Applicants. I regard this aspect of the Respondent’s challenge as somewhat bemusing. As far as I can tell, no alternative route was ever put forward by the Respondent. In any event, it is well-known that the family reunion route did not include the parents or siblings of child refugees in this country. However, that family reunion route would be the most appropriate to follow (it being the most closely aligned to their circumstances), and the course of action taken by the Appellants when applying for entry clearance is consistent with the Respondent’s own guidance. The Appellants did not seek to disguise the fact that they could not meet the relationship requirement: they were, however, permitted to assert that there were exceptional circumstances in their case, pursuant to paragraph FRP7.1. The judge was not obliged to address the alternative route point in his decision: it was unsubstantiated and had no merit. Restating it in the first ground of appeal takes the Respondent’s challenge no further.

Ground 2
22. This ground in part refers to the question of the weight attributed by the judge to the evidence. As Mrs Nolan rightly acknowledged, weight is a matter for the judge. Her submission that the judge in this case simply placed too much weight on the Appellants’ circumstances in Pakistan faces at least two significant obstacles. First, there is no perversity challenge here and, in light of what I say below, the Appellants’ circumstances in Pakistan were a relevant consideration. Second, it is a misreading of the judge’s decision to assert that he placed “determinative” weight on the Appellants’ circumstances in Pakistan. Reading paragraphs 9 and 10 sensibly and holistically, the judge attributed weight to a variety of aspects of the evidence linked to both the United Kingdom and Pakistan. Consideration of the latter was not determinative.
23. The second aspect of the second ground relates to a territoriality argument. In the first instance, the point was not argued in front of the judge and I would conclude that there is no error of law for that reason alone.
24. In any event, the ground refers to an alleged error on the judge’s part by him having regard to “private life”, when in fact that was not the case at all. The judge was quite clearly concerned with family life. Whilst it is well-established that private life has no reach beyond the United Kingdom, the position in respect of family life is different (see below).

Ground 3
25. Mrs Nolan’s submissions took on the flavour of what she had said in respect of the first ground, but in truth the third ground of appeal is put squarely on the basis that the judge was precluded as a matter of law from considering the Article 8 rights of the Appellants, as opposed to only the rights of the United Kingdom-based Sponsor. That is the family life territoriality issue. I am satisfied that it was not canvassed in any way before the judge and for that reason alone I conclude that the judge did not err in law by failing to engage with it.
26. In any event, I reject the contention that the Appellants’ rights were of no relevance to the judge’s task. The established case law does not support the Respondent’s position. Numerous judgments of the Strasbourg Court and the domestic courts have proceeded on the basis that the rights of individuals living outside of the United Kingdom are relevant. The Respondent’s own Rules include provisions which require decision-makers to consider the rights of individuals abroad: see, for example, Appendix FM GEN.3.2 and EX.1, and indeed the provision with which the judge was concerned, FRP 7.1. The Respondent’s guidance on “Family life as a partner or parent: exceptional circumstances”, version 21.0, published on 21 May 2024, confirms that when considering exceptional circumstances and unjustifiably harsh consequences, “the impact on each family member raised in the application must be considered, as well as on the family unit as a whole”. The third ground asserts that Al Hassan was wrongly decided on the basis that there is no unitary concept of family life, but I note that Mrs Nolan specifically declined to pursue that argument before me. Her position was perhaps in part a recognition of the lack of merit in the proposition. In any event, I conclude that the judge’s approach was correct and that the respondent’s contention is inconsistent with case law and her own approach within the Rules and guidance.

Summary
27. None of the three grounds of appeal are made out. The judge’s decision, whilst concise, includes no misdirection on the law, is, in the context of the unchallenged evidence, adequately reasoned, and his conclusion is sustainable. Although no perversity challenge has been pursued by the Respondent, I am satisfied that in any event the conclusion was not irrational.
28. I conclude with one observation. If a party wishes to pursue a challenge based on an argument which was not canvassed at first instance, this should be made very clear in the grounds of appeal. A failure to do so might be described as being misleading or at least disingenuous. In considering an application for permission to appeal, the relevant judge should be provided with the clearest picture of what was and was not argued below. Such matters can have an influence on whether permission is granted or not.

Anonymity
29. I have considered whether to grant an anonymity direction in this case. None was made by the judge. The case does not involve a claim by the Appellants for international protection and the young age of the second Appellant is not of itself a reason to make a direction. However, it is of importance that the Sponsor is a refugee. I am satisfied that he is entitled to anonymity. In order to avoid the possibility of so-called ‘jigsaw identification’, I am satisfied that anonymity should be extended to the Appellants and the second son who resides in the United Kingdom.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The Secretary of State’s appeal to the Upper Tribunal is dismissed and the decision of the First-tier Tribunal stands.

H Norton-Taylor

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 10 October 2025