Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-003346
UI-2025-003348
UI-2025-003349

First-tier Tribunal Nos: HU/61107/2024
HU/61109/2024, HU/61110/2024
LH/01638/2025
LH/01637/2025, LH/01636/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th of March 2026

Before

UPPER TRIBUNAL JUDGE BLUM

Between

ENTRY CLEARANCE OFFICER
Appellant
and

MW (1)
DW (a child) (2)
AD (a child) (3)
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Ms Khan, Presenting Officer
For the Respondents: Ms M Knorr, Counsel instructed by Asylum Aid

Heard at Field House on 4 February 2026

Although this is an appeal by the Entry Clearance Officer, to avoid confusion, I shall refer to the parties as they were in the First-tier Tribunal. The Entry Clearance Officer shall be referred to as the respondent and MW, DW and AD shall be referred to as the appellants.

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

Background

1. The respondent appeals against the decision of a Judge of the First-tier Tribunal (“the Judge”), who in a decision promulgated on 13 June 2025 allowed the appellants’ appeal under Article 8 ECHR.

2. The appellants are citizens of Eritrea who are living in Ethiopia in a precarious and insecure situation. They are unable to register as refugees in Ethiopia and have no documentation. Their sponsor is also an Eritrean national who was recognised by the Secretary of State for the Home Department as a refugee in 2018, having arrived in the UK as a 16-year-old in 2017. He now has Indefinite Leave to Remain. The 1st appellant and the 2nd appellants are the half-siblings of the sponsor (they shared the same mother until she died). The 1st appellant was born in 2005. The 2nd appellant was born in September 2010. At the date of the First-tier Tribunal (IAC) decision he was 14 years old. The 3rd appellant is the daughter of the 1st appellant. She was born in June 2023.

3. On 1 March 2024 the appellants applied for entry clearance to join the sponsor in the UK. They made their application outside the Immigration Rules relying on article 8 ECHR. The sponsor could not return to Eritrea for fear of being conscripted into the army, which the Secretary of State for the Home Department recognised and accepted would expose him to a real risk of serious ill-treatment amounting to persecution. He endured a traumatic journey to the UK and suffered from severe PTSD and depression. He had been trying to reunite with his half-siblings since 2018 but was given incorrect social work advice and discouraged from proceeding. He only received correct advice in 2021 after a change of social worker. The 1st and 2nd appellants, who are full siblings, had lived in Sudan, initially cared for by an extended family member but then cared for by an unrelated woman. The 1st appellant became pregnant but was abandoned by the father and fled to Ethiopia from shame and the ensuring conflict in Sudan. She was destitute in Ethiopia until reconnected with the sponsor. The 2nd appellant fled Sudan to Ethiopia due to the conflict in Suda and joined his sister. The 3rd appellant is entirely dependent on her mother and, in reality, support provided by the sponsor.

4. The respondent was not satisfied the appellants were able to demonstrate that they were related to the sponsor as claimed, and it was noted they could not meet the requirements of the immigration rules. There was said to be no evidence showing financial or other dependency, and the appellants had not lived with the sponsor for a long time. There was said to be no ongoing article 8 ECHR family life and no compelling circumstances that would justify admission. The respondent suggested the sponsor could reasonably travel to meet the appellants in a ‘third country’ but did not identify what country that could be or how the appellants could safely travel to that unidentified third country.

The decision of the First-tier Tribunal (IAC)

5. The judge heard the appeal on 16 May 2025. The judge had before him a large bundle of documents filed and served by both the respondent and the appellants. The bundles included, inter alia, TB test certificates, DNA evidence confirming the claimed relationship, evidence of money remitted by the sponsor to support the appellants, statements from the sponsor and 1st appellants, evidence of communication between the sponsor and the appellants, extracts from social services records, background documents relating to the mass deportations of Eritreans from Ethiopia and the position of Eritrean refugees living in Ethiopia, reports by an Independent Social Worker and reports by a Consultant Child Adolescent Psychiatrist. There was no attendance by the Home Office Presenting Officer due to illness. No application was made by the respondent to adjourn the hearing and no further written submissions were provided. The judge heard evidence from the sponsor and an ‘early help practitioner’ employed by the sponsor’s local authority.

6. The judge allowed the appellants’ appeal on the grounds that the respondent’s decision to refuse entry clearance would result in unjustifiably harsh consequences for the appellants and consequently amount to a disproportionate interference with rights protected by article 8 ECHR. In a carefully considered decision the judge set out in more detail the history of events summarised above, and accurately summarised the positions of both parties. The judge correctly set out the relevant standard and burden of proof.

7. The judge accepted the claimed relationship based on DNA evidence and the fact that the sponsor mentioned his half-siblings in his asylum interview in 2018 and the consistency of the accounts given. The judge rejected the respondent’s contention that no family life existed due to long separation and lack of reliance, preferring the detailed evidence of the Independent Social Worker who described the sponsor’s relationship with the appellant as parent-like and noting frequent communication, financial and emotional dependency, the sponsor’s high level of responsibility and anxiety, and the appellants’ vulnerability and lack of support. The judge also placed reliance on the psychiatric evidence that the ongoing separation kept the sponsor in a cycle of trauma and fear and noted the strong familial bond which was characterised by deep responsibility and concern for the appellants. The judge additionally relied on the objective evidence including photographs and social media communication, regular money transfers and calling card purchases evidencing frequent contact. In respect of the respondent’s contention that the family can continue as they were, that the appellants can remain in Ethiopia and that there were no unjustifiably harsh consequences if they were refused entry clearance, the judge noted that the appellants lived in one room temporarily lent by a friend, that the friend cannot take responsibility for them and they risked becoming homeless. They had no legal status in Ethiopia and this prevented them accessing services and made them vulnerable to deportation to Eritrea without notice. The 1st appellant was a single mother with no education, no male support and limited maturity and was at risk of sexual exploitation and abuse. The sponsor was suffering from severe depression, anxiety and PTSD, was withdrawn, had an inability to function normally and his condition was worsening due to fear for the appellants. The judge referred to the importance of public interest considerations and that the impact of the decision to refuse had to have unduly harsh consequences, and concluded that the consequences for the appellants and the sponsor would indeed be unduly harsh as the case was an exceptional one.

The grounds and permission

8. The respondent relies on 4 grounds:

1) The judge failed to apply the principles identified by the ECtHR in Kumari v The Netherlands Application 440151/20 (Kumari) which requires an assessment of the facts of the particular relationship and other circumstances of the case. The respondent asserts that the judge found family life existed based only on there being regular contact between the sponsor and the appellants and financial dependency. The judge was said to have taken an ‘oversimplistic’ approach to the existence of family life, that he failed to understand the nature and quality of the relationship between the appellants and their sponsor, and that the impact of the refusal would simply maintain the status quo in circumstances where the UK was not responsible for the conditions in Ethiopia and where the appellants have no real connection to the UK.

2) The judge placed ‘determinative’ weight on the circumstances of the appellants in Ethiopia when assessing the issue of proportionality by giving any or substantial weight to their circumstances when considering whether Article 8 of the ECHR would be breached by refusing the appellants entry to the UK. This ground contends that the judge should only have been concerned with whether the sponsor’s family life with the appellants would be disproportionately interfered with by refusing the appellant entry to the UK and the circumstances of the appellants did not go to the issue of the family life relationship. The circumstances of the appellants only went to the issue of their article 8 ECHR private life rights or their article 3 ECHR rights and the judge could not consider this given the sponsor’s family life with the territorial scope of the Human Rights Act 1998 and the ECHR.

3) The judge made a material misdirection of law by considering the article 8 ECHR rights of the appellants, rather than only considering the Article 8 family life rights of the sponsor. Ethiopia was not within the UK territorial jurisdiction for the purposes of Article 1 of the ECHR, and there is no other jurisdictional connection between the appellants and the UK.

4) The judge erred in law by failing to properly appreciate or identify the strength of the public interest supporting the decisions to refuse entry clearance, by failing to apply the mandatory public interest considerations and failing to recognise that the appellant’s family life was ‘precarious’, which was said to be a relevant consideration by reference to the authorities of R (Agyarko) v SSHD [2017] UKSC 11(Agyarko) and Jeunesse v Netherlands (2015) 60 EHRR 17 (Jeunesse).

9. In relation to the first ground the Upper Tribunal considered that the judge made a detailed assessment of the nature of the relationship between the sponsor and the appellants and reached a conclusion that was rationally open to him on all of the available evidence. The Upper Tribunal however found the other grounds were arguable and granted permission on all grounds.

Procedural history in the Upper Tribunal

10. The error of law hearing was listed for 30 October 2025. However, by the time of that hearing, the Court of Appeal hearing in CA-2025 000713: Secretary of State for the Home Department (‘SSHD’) v IA & Ors (‘IA’) had been brought forward to be heard on 4 and 5 November 2025. Given the overlap between the issues to be resolved by the Court of Appeal in IA and in the instant appeal the Upper Tribunal granted an application by the respondent to stay the proceedings pending the handing down of the Court of Appeal decision in IA. The Court of Appeal handed down judgment in IA on 26 November 2025.

The Court of Appeal decision in IA & Ors v SSHD [2025] EWCA Civ 1516

11. This case concerned the appeal by the Secretary of State against the decision of the UT allowing the appeal of a family of six in Gaza, who appealed the refusal of entry clearance applications to join the brother of the father in the claimant family.

12. I set out the summary of the Court of Appeal’s conclusion on the three grounds of appeal in IA.

13. In relation to the grounds pursued by the Secretary of State in IA these were summarised at [5] of the judgment as follows:

The Secretary of State for the Home Department (the SSHD) is appealing the UT’s decisions as to the existence of family life and its conclusions on the proportionality balance under article 8(2). The SSHD contended that: (a) on a proper understanding of the law as to the meaning of “family life”, the family and the sponsor did not enjoy family life under article 8(1), (b) even if such family life did exist, the UT was wrong at [166] to consider the free-standing article 8 rights of the family, rather than just those of the sponsor, in undertaking the proportionality balance required by article 8(2), and (c) the UT gave the wrong weight to the risks to the lives of the family and their dire situation in the Gaza warzone, and gave the wrong weight to the importance of UK immigration control and the short-lived family life that had existed in this case.

14. In summarising the Court’s conclusion on these grounds, the judgment states:

9. We have decided that the SSHD’s appeal should be allowed on grounds 1 and 3 and in part on ground 2. Our reasons can be summarised briefly here.

10. First, the consistent jurisprudence of the European Court of Human Rights (the ECtHR) has been that “family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties”” (see Kumari v. The Netherlands 44051/20, 10 December 2024 (Kumari) at [35], and Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 (Beoku-Betts) at [39]). The FTT did not apply that test, but instead asked itself whether the sponsor had provided “real, effective or committed support” to his brother and the family (see [18] and [25] of the FTT decision). The real, effective or committed support test is lower than the additional elements of dependence test. Applying the proper test, neither the brother nor his family had shown that they had family life with the sponsor for the purposes of article 8(1).

11. Secondly, if there had been family life between the sponsor and his family (as found by the FTT), it would have been appropriate to have regard to the unitary nature of that family life (see Beoku-Betts at [4], [20] and [41]-[43]). We accept, however, that, in undertaking the proportionality balance under article 8(2), the court is looking primarily at the article 8 rights of those persons within the jurisdiction of article 1 of the ECtHR (in this case, the sponsor).

12. Thirdly, we have concluded that the UT made several errors in undertaking the proportionality balance under article 8(2). Even if, contrary to what we have decided, family life had existed between the sponsor and the family, the balance should not have been determined in favour of granting the family entry clearance. Very exceptional or compelling circumstances had not been shown. The UT was wrong to pay so little regard to the immigration control policies of the SSHD and the UK Government, as reflected in the Rules, as expressing what was necessary in the interests of the economic well-being of the UK and for the protection of the rights of the citizens of the UK. The UT wrongly over-stated the importance of the family’s short-lived family life with the sponsor (had it existed at all), the best interests of the children of the family and the admittedly serious risks faced by the family in Gaza.

Error of law hearing

15. I heard heard detailed submissions from both Ms Khan and Ms Knorr at the hearing. Their submissions are a matter of record. I will refer to their submissions so far as it is necessary for me to determine the ‘error of law’ appeal. There was no application by Ms Khan to amend in any way the grounds of appeal.

Discussion

16. I remind myself that restraint should be exercised when examining the reasons given by the judge for his decision. In HA (Iraq) v SSHD [2022] UKSC 22, at [72] Lord Hamblen said:

It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:

i. They alone are the Judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.

ii. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account – see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.

iii. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out – see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.

17. I have also borne in mind guidance on decisions and reasons provided to Judges of the FtT by the Practice Directions (“PD”).

18. The PD of the Immigration and Asylum Chamber of the First-tier Tribunal of 1 November 2024 provides, in so far as relevant, as follows:

15.1. This section is to be read in conjunction with the Practice Direction on Reasons for Decisions which applies in general to the First-tier Tribunal.

15.2. In the giving of reasons, as always in the conduct of Tribunals business, judicial time should only be spent on tasks that are essential to achieving the efficient and effective administration of justice. Written reasons should only be provided where they are expressly required by the Procedure Rules or where the interests of justice otherwise compel written reasons being given, and, in every case where they are required, only to the extent and in the terms necessary to dispose justly of the matter in hand. Any practice of routinely providing written reasons that do not need to be provided fails to make full and effective use of judicial time, which is a precious resource in the justice system.
…
15.4. Where written reasons are given, they must be concise and focused upon the disputed issues on which the outcome of the case has turned.

15.5. The reasons provided for any decision should be proportionate to the significance and complexity of the disputed issues that have to be decided. Reasons need refer only to the issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved. It follows that the Tribunal need not identify all of the evidence relied upon in reaching its findings of fact, or elaborate at length its conclusions on any issue of law.

15.6. Stating reasons at greater length than is necessary is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate Court or Tribunal, and is therefore inconsistent with the Overriding Objective. In some cases, succinct paragraphs containing the necessary self-directions and addressing the disputed issues will suffice. For a procedural decision the reasons required will usually be shorter still.

15.7. When determining permission to appeal applications the Tribunal must take account that it is important to exercise appropriate restraint when considering a challenge based on the adequacy of reasons. Case law emphasises the importance of a realistic and reasonably benevolent approach – decisions under appeal must be read fairly and not hypercritically. Expert Tribunals should be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear that they have failed to do so. It should not be assumed that a Tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision.

19. The PD of the Senior President of Tribunals: Reasons for decisions of 4 June 2024 provides, in so far as relevant, as follows:

5. Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.

6. Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved.

7. Stating reasons at any greater length than is necessary in the particular case is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate court or tribunal, and is therefore inconsistent with the overriding objective. Providing concise reasons is to be encouraged. Adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice. For a procedural decision the reasons required will usually be shorter.

8. Judges and members in the First-tier Tribunal should expect that the Upper Tribunal will approach its own decisions on appeal in accordance with the well settled principle that appellate tribunals exercise appropriate restraint when considering a challenge to a decision based on the adequacy of reasons. As the Court of Appeal has emphasised, a realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically.

9. As an expert tribunal, the First-tier Tribunal will generally be taken to be aware of the relevant authorities within the jurisdiction being exercised, and to be applying those cases without the need to refer to them specifically, unless it is clear from the language of the decision that they have failed to do so. The Upper Tribunal will not readily assume that a tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision. Thus, a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.

Ground 1

20. The respondent’s contention that the judge undertook an ‘oversimplistic’ approach to the existence of family life and failed to understand the nature and quality of the relationship between the sponsor and the appellants is not borne out by the decision itself. Contrary to the respondent’s overly broad contention it is apparent that the judge comprehensively considered the nature and quality of the relationships.

21. In determining whether the judge was entitled to find that family life existed between the sponsor and the appellants it is necessary to appreciate the unusual facts and circumstances of the appeal. The judge carefully set out the history of events that first established the relationships between the sponsor and his half-siblings, and which then led to their involuntary separation. This stands in contrast to the situation in IA where there has been a voluntary and long-lasting separation between the adult brothers. As noted by the judge, and which is unchallenged in the respondent’s grounds of appeal, the sponsor is an orphan without no other family members other than the appellants. The mother of the appellant is deceased, and they have been abandoned by their father. The sponsor and the 1st and 2nd appellants lived together until around 2011 when the sponsor has an accident and was left in Sudan after surgery. Their separation was not voluntary. The judge records that around 2014 the 1st and 2nd appellants were abandoned by their father in Sudan and the appellants enjoyed some contact with the sponsor during this time. The judge also notes that sponsor had to leave Sudan fearful that he may be removed to Eritrea in 2017. Again, this separation was not voluntary. After entering the UK in 2017 and being recognised as a refugee in 2018 the judge notes that the sponsor attempted to locate his half-siblings through the Red Cross and the church, and that this was eventually successful. The judge noted that, through being given incorrect advice, which was only corrected in 2021, the sponsor believed he could not be reunited with his half-siblings until he obtained employment. The judge noted again how contact was involuntarily lost when the 1st appellant entered hospital, her shame in then falling pregnant which, having been abandoned by the father, caused her to flee to Ethiopia, and the war in Sudan which caused the 2nd appellant to enter Ethiopia where the siblings were eventually reunited.

22. The judge acknowledged at [32] that it was less common for family life to exist between siblings, but that this was not a bar to the existence of family life, and that “the circumstances must be considered in the round.” The judge then considered those circumstances in detail. At [32] the judge accepted the evidence of Mr Peter Horrocks, an independent social worker, who had produced two reports. There has been no challenge to this aspect of the judge’s assessment. The judge took into account the evidence from Mr Horrocks to the effect that the relationship between the appellants and the sponsor was akin to him being a parent, that the sponsor was “everything for them, that they speak whenever they can and want to be with the sponsor as they have no other family who can care for them.” the judge noted that the sponsor, who has no other family, considered the appellants “… to be his everything and that he has no family in the UK.” The judge noted the evidence that the sponsor thought about the appellants every day, that he struggled to cope without his remaining family members, and saw himself with no future without his family. The judge considered the evidence that the “… appellants need the sponsor for their emotional needs and stability, security, and continuity as part of a close and loving family unit” and that the sponsor saw it as his role to look after the family in the absence of parents. The judge summarised how the sponsor was always stressed and become more reclusive, that there was financial dependency on the sponsor who regularly sends money to them, and that the sponsor provided both emotional and financial support.

23. At [33] the judge considered a report from Dr Thomas Hillen, a consultant child and adolescent psychiatrist, The judge noted the sponsor was assessed as having severe anxiety, depression and PTSD and that his “ongoing separation from his family and perpetual worry keeps him locked into circular worry.” The judge noted the expert’s evidence that there was between the sponsor and the appellants “such a strong bond and sense of responsibility and the sponsor was more concerned about the wellbeing of the appellant compared to his own wellbeing.” This speaks to a significant element of emotional dependency between half-siblings and the sponsor.

24. At [34] the judge took into account further evidence of the nature of the relationship between the sponsor and the appellants including text messages, evidence of the purchase of phone cards indicative of regular communication and regular money transfers. The judge stated, “… I am satisfied that family life exists between the appellants and the sponsor such as to engage Article 8(1) and there is sufficient evidence to demonstrate that there is a dependency between the sponsor and the appellants that can be described as real, effective or committed.”

25. I am not persuaded by Ms Khan that the judge considered the question of dependency solely through the prism of what has been described as the “real, committed or effective support” test taken from Sedley LJ’s judgment in Kugathas v SSHD [2003] EWCA Civ 31. For one thing, the judge does not mention ‘support’, but instead correctly refers to ‘dependency’. Nor did he fall into the error of applying a “test” of “real, committed and effective support” such as to read down the “additional elements of dependency” test. Insofar as he said that the actual dependency can be described as “real, effective or committed”, IA confirms that is not an error of law. The judge was focused on the need for “dependency” and in any event IA confirms that “real, committed or effective support by itself may or may not be sufficient to establish additional elements of dependency for the existence of family life between adult siblings” (at [122] and [128]).

26. Although the judge does not expressly refer to Kumari or the ‘additional elements of dependence’ test, I am satisfied that the judge has applied this test in his assessment of the nature and quality of the relationship and whether there were additional elements of dependence involving more than the normal emotional ties.

27. The respondent relies on Kumari, which was approved in IA at [113]. The test for family life between siblings in Kumari is that there must be “additional elements of dependence involving more than the normal emotional ties” and while “real committed and effective support” is not the test, it might assist in showing there are additional elements of dependency. Kumari recognised that additional elements of dependency “will often be the result of a combination of elements”, that financial dependency is a relevant factor, and that all the circumstances of the case should be considered, including whether the person is the only surviving relative, and whether there are alternative options for care and support where the applicant lives. The judge was acutely aware that there were no other surviving relatives and that there were no realistic alternative options for care and support given that the appellants were living in Ethiopia without lawful status, without access to education and with no other means of adequately supporting themselves, and in circumstances where their accommodation was only temporary.

28. Contrary to the grounds and the submissions of Ms Khan, the judge did not find that financial dependency “on its own” and contact was sufficient to establish family life. The judge considered and accepted the evidence from the sponsor and the appellants and the expert reports and found that a combination of relevant factors meant that family life was established, including (i) the sponsor’s relationship with his siblings was ‘akin to him being a parent’; (ii) they have ‘no other family’; (iii) the sponsor is struggling to cope while separated from his family and is suffering from mental health problems worsened by perpetual worry about his half-siblings; (iv) that their bond is so strong, as is the sponsor’s sense of responsibility for his half-siblings, that he is more concerned with their wellbeing than his own, (v) that the appellants ‘need the sponsor for their emotional needs and stability and security’, and (vi) there is evidence of financial dependence and regular contact. The judge also found that the appellants cannot be adequately supported in Ethiopia. The judge’s findings are not inconsistent with Kumari or IA and nor are they accurately described in the Grounds.

29. I am not persuaded ground 1 is made out.

Ground 2

30. In IA the Court of Appeal criticised the weight the Upper Tribunal attached to the claimants’ grave circumstances and what they had to endure living in a warzone in Gaza, and to the best interests of the children in question in leaving that warzone. The Court of Appeal did not say that no weight could be attached to the circumstances of those living in Gaza when assessing proportionality. At [172] the Court of Appeal indicated that it would have attached weight to the interests of the family in wanting to leave Gaza and to abate the risks and the humanitarian crisis that the family face there. Thus, contrary to the assertion in ground 2 that the judge erred by placing ‘any’ weight on the appellant’s circumstances in Ethiopia, the judge was entitled to attach weight.

31. This present appeal is not about the risks to adults or children in a warzone and an attempt to escape those risks. Although the appellants are living in difficult circumstances the reason for seeking entry clearance is for reunification with the sponsor, their closest relative and the person with whom they have established a relationship of dependence that consists of more than the normal emotional ties.

32. The appellants circumstances in Ethiopia are relevant to any assessment of the proportionality of the interference with the sponsor’s unitary family life with the appellants (e.g. at [32] the judge noted the sponsor continued to be negatively impacted by worry about risks to the appellants including being removed from Ethiopia and being trafficked). Both Kumari and IA indicate that the potential for alternative support and risks in the country of origin or where the person lives are relevant factors. In Tuquabo-Tekle v Netherlands [2006] 1 FLR 798 the ECrtHR explained that in deciding whether a refusal of entry clearance strikes a fair balance “the court will have regard to the age of the children concerned, their situation in their country of origin and the extent to which they are dependent on their [family members])” (see also Mugenzi v France, Application No. 52701/09, 10.7.14 (‘Mugenzi’) at [55]). In her skeleton argument Ms Knorr identified Home Office guidance/policies requires consideration of the circumstances in the country of residence including whether members of the family unit can lawfully remain in or enter another country.

33. In my judgement the judge did not use article 8 ECHR to give relief to the appellants from circumstances in Ethiopia he considered they should not endure or to effectively circumvent the absence of any resettlement scheme. The judge was entitled to attach weight to the circumstances of the appellants as this informed the balancing exercise under article 8 ECHR. In so doing the judge did not impermissibly consider the appellants article 3 ECHR rights or their article 8 ECHR private life rights. As is clear from [35] of the judge’s decision the circumstances in Ethiopia were relevant to whether the relationship can reasonably continue in its current form.

34. I find ground 2 is not made out.

Ground 3

35. There was no application by Ms Khan to amend ground 3 in light of the IA. Indeed, Ms Khan adopted ground 3 without reservation. She drew my attention to IA at [100] which states:

It seems to us that all these cases point in the same direction. 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 …. 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.

36. This passage does not, on its face, support the central thrust of ground 3 which maintains that the judge made a legal mistake by “considering the article 8 ECHR rights of the appellants, rather than only considering the Article 8 family life rights of the sponsor.”

37. At [141] and [142] the Court of Appeal stated:

The SSHD was partly right to say that, even if family life existed between the sponsor and the brother or the sponsor and family, the article 8 rights of the family were not directly engaged. The true position is rather more nuanced, as the authorities we have cited at [87]-[97] demonstrate. Once family life is held to exist, it is indeed unitary (see Beoku-Betts and Abbas, for example). But the family life in question is between the sponsor and the brother (or between the sponsor and the family, if that had been found to exist).
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.

38. Having considered the decision I am not persuaded that the judge impermissively focused on the article 8 ECHR rights of the appellants. The decision, read holistically, indicates that the judge’s primary focus was on the impact of the sponsor’s article 8 ECHR rights and it was this that provided the jurisdictional link upon which the appellants could mount their claim. The judge focused on and considered the impact of the refusal of entry clearance on the sponsor’s article 8 ECHR rights at [32] (the sponsor described the appellants as “his everything”, that he was stressed without any family in the UK, that he has mental health issues trying to address this, that he worried and thought of his family every day and sometimes could not sleep, and saw no future for himself without his family), whilst at [33] the judge considered a report by a child and adolescent psychiatrist that assessed the sponsor as suffering from severe anxiety, depression and PTSD and that the sponsor’s ongoing separation from his family and perpetual worry keeps him locked into circular worry.

39. I find ground 3 is not made out.

Ground 4

40. The judge noted at [28] that the appellants could not meet the requirements of the immigration rules for entry clearance. At [30] the judge referred to the Court of Appeal authority of TZ (Pakistan) v SSHD [2018] EWCA Civ 1109 and reminded himself, by reference to TZ, that “a tribunal undertaking an evaluation of exceptional circumstances outside the Rules must take into account as a factor the strength of the public policy in immigration control as reflected by the Secretary of State’s test within the Rules. The critical issue will generally be whether the strength of the public policy in immigration control in the case before it is outweighed by the strength of the article 8 claim so that there is a positive obligation on the state to permit the applicant to remain in the UK.”

41. Then at [31] the judge stated, “The determination of this Article 8 claim requires a proportionality assessment. I apply Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 (paras 47-53 suggest a balance sheet approach) and Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 440, which says that decisions must be “unduly” harsh in order to breach Article 8 rights.”

42. Then judge then considered, from [32] to [34], the nature and quality of the relationship between the appellants and their sponsor and the impact that continuing separation is having on all of them in respect of their family life relationship. At [35] the judge considered the respondent’s submission that the relationship can continue as it has been and that there are no “unjustifiably harsh consequences to the refusal which would render the refusal decision disproportionate. The judge then gave several reasons, by reference to the evidence before him, why he disagreed with the respondent’s position and then at [36] concluded that the respondent’s decision was not disproportionate as the interference with the family life between the sponsor and the appellant was unjustifiably harsh. The judge stated, “The strength of the public policy in maintaining immigration control is outweighed by the strength of the Article 8 case.”

43. Ground 4 contends that the judge failed to identify the (extreme) precariousness of the relevant family life and that this precariousness should have been factored into the proportionality assessment. I have considered the initial decision and the respondent’s review and neither makes any reference to nor argues that the relationship between the sponsor and the appellants is ‘precarious’. I remind myself of the Upper Tribunal decision in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) (“Lata”) which states at [28]:

If follows that unless a point was one which was Robinson obvious, a Judge’s decision cannot be alleged to contain an error of law on the basis that a Judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

44. I have also considered the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal of 1 November 2024, in particular concerning the requirements of an appeal skeleton argument, the respondent’s review, and the substantive hearing and issues based approach.

45. At [11.1] the Practice Direction requires that the parties should come to the substantive hearing ready to “identify the disputed issues that the Tribunal is being asked to decide in the case”. At [11.4] the Practice Direction states:

The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision.

46. In relation to the respondent’s review in the FtT the Practice Direction provides, in so far as relevant, as follows:

The respondent must provide a review in accordance with rule 24A(3) of the Procedure Rules, within 14 days of receipt of the bundle and ASA or the appellant’s explanation of their case. The review must:
…..

(c) explain whether the respondent agrees that the schedule of the disputed issues is correct and, if not, the correct list of disputed issues, including whether there are any further issues that the respondent wishes to raise;

(d) the respondent’s brief submissions on each of those issues including whether the respondent opposes or accepts the appellant’s position on each issue, with cross-referencing to paragraphs in the decision under appeal, pages in the respondent’s bundle, any country information evidence schedule, and/or any additional evidence relied upon;
….

47. As the submission regarding the precariousness of the relevant family life was not a point raised in the refusal decision or the respondent’s review and the judge cannot be found to have erred in failing to consider a matter which was never raised. The judge engaged with the case that was presented to him. I find that the respondent is seeking to reargue her case on a different basis to that she previously advanced. However, as permission was granted on all grounds have engaged with this ground.

48. Whilst the authorities relied upon in the grounds and by Ms Khan at the hearing make mention of precariousness in relation to family life, they relate to family relationship formed with a partner that that is established in the United Kingdom when the person is in the UK unlawfully. That is not the case here. There was an interference with the pre-existing family life between the sponsor and his half-siblings when they were involuntarily separated. The sponsor sought out his half-siblings when he was first able to and re-established family life, albeit now separated, when he was lawfully residing in this country. I find there is no authority for this separate precariousness principle in the manner argued by the respondent.

49. Nor am I satisfied that the decision, read as a whole, suggests that the judge failed to properly appreciate the strength of the public interest when undertaking the proportionality balancing exercise. Ground 4 argues that the judge failed to apply the relevant mandatory public interest considerations. These are contained in s.117B of the Nationality, Immigration and Asylum Act 2002. S.117B(1) indicates that the maintenance of effective immigration controls is in the public interest. The judge was clearly aware of this mandatory requirement (see [36]). The only other relevant mandatory factors are s.117B(2) (it is in the public interest that those who enter the UK speak English) and s. 117B(3) (it is in the public interest that those who enter the UK are financially independent). However both of these factors had already been conceded by the appellants and where therefore not in issue. There was no requirement for the judge to have specifically mentioned factors that were not in dispute. Nor is there a requirement for the judge to expressly mention s.117B in his decision. It can reasonably be inferred that the judge was aware of the mandatory requirements in s.117B and that he considered these factors in his assessment.

50. The judge was clearly aware that the application was being made outside the immigration rules and that he had to be satisfied that the interference with the family life relationships had to be unjustifiably harsh when weighed against the strength of the public interest. The judge noted at [28] that the appellants could not meet the requirements of the immigration rules for entry clearance. At [30] the judge referred to the Court of Appeal authority of TZ (Pakistan) v SSHD [2018] EWCA Civ 1109 and reminded himself, by reference to TZ, that “a tribunal undertaking an evaluation of exceptional circumstances outside the Rules must take into account as a factor the strength of the public policy in immigration control as reflected by the Secretary of State’s test within the Rules. The critical issue will generally be whether the strength of the public policy in immigration control in the case before it is outweighed by the strength of the article 8 claim so that there is a positive obligation on the state to permit the applicant to remain in the UK.”

51. Then at [31] the judge stated, “The determination of this Article 8 claim requires a proportionality assessment. I apply Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 (paras 47-53 suggest a balance sheet approach) and Agyarko & Ors, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 440, which says that decisions must be “unduly” harsh in order to breach Article 8 rights.”

52. Then judge then considered, from [32] to [34], the nature and quality of the relationship between the appellants and their sponsor and the impact that continuing separation is having on all of them in respect of their family life relationship. At [35] the judge considered the respondent’s submission that the relationship can continue as it has been and that there are no “unjustifiably harsh consequences to the refusal which would render the refusal decision disproportionate. The judge then gave several reasons, by reference to the evidence before him, why he disagreed with the respondent’s position and then at [36] concluded that the respondent’s decision was not disproportionate as the interference with the family life between the sponsor and the appellant was unjustifiably harsh. The judge stated, “The strength of the public policy in maintaining immigration control is outweighed by the strength of the Article 8 case.”

53. I find ground 4 is not made out.

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 is dismissed.

D. Blum
Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 February 2026