Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-003402
UI-2025-003403

First-tier Tribunal Nos:
HU/56419/2024
LH/00210/2025
HU/56421/2024
LH/00209/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 October 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PW and FJ
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Ms S. McKenzie, Senior Home Office Presenting Officer
For the Respondents: Mr D. Bazzini, instructed by AA Immigration Lawyers

Heard at Field House on 29 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondents or the sponsor, likely to lead members of the public to identify the respondents. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Secretary of State for the Home Department appeals with permission against the decision of the First-tier Tribunal (“FTT”) dated 3 April 2025, which allowed the linked appeals of PW and FJ. Although the SSHD appears as the appellant before the Upper Tribunal, for ease of reference I refer to the parties as they were before the FTT. All references to the “appellants” are to PW and FJ, and all references to “the respondent” are to the SSHD.
2. The appellants were granted anonymity before the FTT and I consider that it is appropriate to continue that order. The appellants are women resident in Afghanistan and vulnerable by reasons of serious mental ill health. They also are seeking to join a family member who has been granted refugee status in the UK. Although there is a strong public interest in open justice, the public interest in knowing the precise details of their identity does not outweigh the potential risks to them if those details were disclosed.
Background
3. The appellants are a mother and daughter, aged 52 and 28 at the date of the hearing before the FTT. On 12 March 2024, they each applied for entry clearance to the UK under Appendix Adult Dependent Relative (ADR) of the Immigration Rules. Their sponsor is AM, PW’s son and FJ’s brother, who was granted refugee status in the UK on 1 February 2022 because he was considered to be at risk of persecution by the Taliban. Their financial sponsor was TM, who is also PW’s son and FJ’s brother. In support of the applications, the appellants submitted evidence of TM’s finances and a brief statement from him saying that the appellants were “extremely vulnerable given the current situation in Afghanistan with the Taliban rule”.
4. On 29 May 2024, the respondent refused both applications in separate but identical decisions. The respondent found that the requirements of Appendix ADR were not met because the appellants had not stated that they were suffering from medical conditions which required long term care and their sponsor’s income was below the threshold for adequate maintenance. The respondent then considered whether there were exceptional circumstances that meant that refusing the application would be a breach of the UK’s obligations under article 8 of the European Convention on Human Rights (ECHR), stating:
“Whilst I note the ongoing circumstances in your home country, I am not satisfied that your circumstances are different to others living in the same country. I do not accept that there are compassionate circumstances of a compelling nature to warrant the granting of entry clearance on an exceptional basis outside the Immigration Rules and is justified by the need to maintain an effective immigration and border control.
“Your sponsor has also stated that they are supporting you financially with no reason or evidence given as to why this cannot continue.
“As you have raised a protection need, I am mindful that Appendix ADR/Family Reunion are not protection routes and asylum cannot be claimed from outside the UK. Individuals should seek protection in the first safe country they reach.”
5. The appellants appealed, and in support of their appeal they submitted:
(i) Witness statements from AM and TM;
(ii) A DNA test confirming the biological relationships;
(iii) Three documents signed by a Dr M Alimi in Afghanistan. Two were handwritten notes signed in November 2023 and stated that FJ had been treated for depression for two years and “the treatment is continuing” and that PW had been treated for panic 1.5 years before and was “ameliorated” but that she was continuing to receive a low dose of drugs for hypertension and rheumatoid arthritis. The third was a certificate signed in February 2025 recording that FJ was suffering from depression;
(iv) Screenshots of messages sent to an account identified as “Beautiful Mom” (with a heart replacing the o). These showed multiple short text and voice messages and photographs, as well as records of missed and completed voice and video calls. The text messages were untranslated.
(v) Screenshots of financial transfers involving Bank Sepah and Bank Mellat.
(vi) Payslips and bank statements demonstrating TM’s current income;
(vii) TM and AM’s joint tenancy agreement;
(viii) A home inspection report confirming that the property would be suitable for five people;
(ix) A BBC report from 5 June 2023, reporting widespread mental health problems and suicides among women in Afghanistan;
(x) A briefing paper from the ODI and SOAS, “The mental health crisis among Afghan women and girls”, published in December 2023;
(xi) A Press release from Action Against Hunger USA, issued on 6 September 2023, entitled “Treating Afghanistan’s Mental Health Crisis;
(xii) News reports and reports from Amnesty International and the European Parliament setting out the dire state of women’s rights in Afghanistan; and
(xiii) The respondent’s August 2024 CPIN, Afghanistan: Humanitarian Situation.
6. FJ said in her statement that she suffered from depression and her mother had “multiple mental health conditions”. They had “sought medical assistance in Afghanistan, but due to the severe limitations of the healthcare system, we have been unable to receive adequate treatment.” She said she and her mother were in an “unbearable position”, living in constant fear and mostly confined to their home. In order to leave the house, they depended on the kindness of male neighbours, who would pretend to be their relatives. About her brothers, she said
“My brothers, who lived with us before leaving Afghanistan, have always supported us. My father is in the UK but is not involved in our lives, so we have depended entirely on my brothers.
“My brothers are deeply concerned about us. We remain in contact daily, and they call multiple times a day due to their anxiety over our safety and well-being.”
7. AM said in his statement that he had lived with his mother and sister in Afghanistan but had been forced to flee in 2015 “due to my fear of persecution from the Taliban”. He had been diagnosed with anxiety and depression in the UK 2014 [which must be an error] and referred to psychological therapy in 2020, and “All my mental health issues are linked to my fear and being separated from my mother and sister.” His mother and sister were financially dependent on him. He sent then £200-300 a month. He expressed the view that his mother and sister could not continue to live in Afghanistan due to their poor mental health, the humanitarian crisis and the restrictions on women imposed by Taliban rule. He added, “Obviously, my sister and mother’s situation has had a serve [sic] impact on myself. I am extremely anxious about her well being. In our culture, children remain responsible for their parents.”
8. TM’s statement was briefer. It confirmed his finances, asserted that his mother and sister were “extremely vulnerable” and that he and his brother were “their only family members.” They have “no one to turn to.” His mother’s situation was “seriously causing huge distress to me and my siblings”.
9. The respondent completed a respondent’s review with regard to PW on 15 January 2025 and maintained the refusal decision. The review identified the issues in dispute between the parties as:
“(i) Does the A meet the dependency requirement of Appendix ADR.5.1. to 5.2.?
“(ii) Does the A meet the eligibility financial requirement of Appendix ADR 6.1 to 6.5.?
“(iii) Does the decision result in unjustifiably harsh consequences for the Appellant and/or their Sponsor under Article 8 ECHR?”
10. The decision was maintained on the grounds that:
(i) She had not demonstrated that she was financially and emotionally dependent on her sponsor or that their relationship extended “beyond the normal bounds of a familial relationship between mother and son.”
(ii) She had not demonstrated that she required long-term personal care to perform everyday tasks, as required by the ADR rules;
(iii) The untranslated WhatApp messages “lacks [sic] credibility, as they are unverifiable”.
(iv) The respondent acknowledged the witness statement from the sponsor stating that the appellant “is living with his sister in Afghanistan, and that they cannot continue to live there alone, and additionally that the A[appellant] suffers from mental health [sic]”. However, “there is a lack of evidence to support this claim.”
(v) The updating bank statements and payslips were acknowledged, but the evidence did not meet the requirements of ADR 6.1-6.5. It was not specified which of the requirements was not met.
11. Given the grounds on which the respondent has appealed to the Upper Tribunal, it is necessary to set out the respondent’s position on article 8 outside the rules in some detail. Here, the respondent repeated that the evidence that article 8(1) was engaged was “limited”. Even if article 8 were engaged, the respondent considered that the refusal of entry clearance was proportionate because there were no “exceptional circumstances which would “amount to unjustifiably harsh consequence to the refusal of the A”. In most of the review, A refers to the appellant, such that what appears to be meant is “harsh consequences of the refusal for the A”. The respondent’s reasons were:
“ii. […] Aside from a desire to reside with her sponsor and family present in the UK, the A has failed to provide sufficient evidence of exceptional circumstances.
“iii. The R[espondent] recognises that A would gain comfort and support from her sponsor if they were together as a family in the UK, but the R maintain that this is not considered to be a sufficiently exceptional reason to justify granting the A entry outside of the immigration rules.
“x. [the numbers are out of order] The R would assert that A can continue to maintain her relationship with her sponsor via modern means of communication, as per [the WhatsApp messages in the appellants’ bundle].”
“iv. Therefore, the R maintains that that the considerations do not amount to an exceptional circumstance.
“v. Whilst the R respectfully acknowledges that sponsor’s submission that he was diagnosed with anxiety and depression in 2014 by Brook Green medical centre as per his witness statement […], the R would assert that the sponsor is receiving the appropriate care in the UK.
“vi. The R would assert that there are no compassionate factors in A’s case that warrant a grant of permission to enter the UK outside of the rules.
“vii. The R is therefore satisfied that the decision is justified by the need to maintain an effective immigration and border control: section 117A(2)(a) of the 2002 Act, read with section 117B (1).”
12. There was no Respondent’s Review in FJ’s appeal.
13. The appeal proceeded to an oral hearing on 14 March 2025. AM and TM appeared and gave evidence and were legally represented. The respondent did not appear. There is nothing to indicate that she asked for an adjournment and she has raised no complaint about the hearing having proceeded in her absence.
14. In a decision dated 3 April 2025, the FTT found that the appellants did not meet the requirements of Appendix ADR but allowed the appeals under article 8.
The FTT’s decision
15. The FTT’s decision begins by setting out the chronology of each application ([1]-[2]), the documentation before the FTT ([3]), and that the appellants had applied to join AM, who had been granted refugee status in 2022, but the “financial sponsor” was his brother TM.
16. At [5]-[7] the FTT set out that each appellant said that she required long term care because of a medical condition and referred to the contents of the notes from Dr Alimi and the statements of FJ and AM. At [8], the FTT recorded the appellants’ assertion that medical care in Afghanistan was both inadequate and “not accessible by them as women” and that doctors were “unwilling to fully diagnose female patients because of their fear of the Taliban authorities.” At [9], the FTT noted that the appellants asserted that they met the financial requirements based on TM’s income, and that in the alternative, the refusal of their applications would be a breach of article 8.
17. At [13], the FT identified the issues in dispute in similar terms to the respondent’s review:
“a. Whether PW and/or FJ is suffering from a medical condition which requires long term personal care to perform everyday tasks;
“b. Whether that care is unavailable or unaffordable in Afghanistan;
“c. Whether the financial sponsor’s disposable income exceeds the amount of income support that would be received by a British family of equivalent size;
“d. In either case, in the event the respective appellant’s application is refused within the Rules, whether the decision to refuse entry is disproportionate under Article 8 (2), such that the refusal would result in unjustifiably harsh consequences for the appellant or their family making refusal disproportionate under Article 8.”
18. At [14], the FTT set out that both AM and TM had given oral evidence . They had both adopted their statements, AM had “answered questions put to him in chief”, and the appellants’ counsel had made submissions. Neither the oral evidence nor the submissions were summarised here.
19. A section entitled “Legal Framework” followed. At [15]-[17], the FTT set out the contents of ADR 5.1, 5.2, 6.1 and 6.2 and then the established formula for “adequate maintenance”. At [18], it directed itself that the relevant date for assessing whether the appellants met the rules was the date of application.
20. At [19], the FTT directed itself as to the legal framework for “an appeal pertaining to family and private life”. It noted that the burden of proof was on the appellant and the standard of proof was the balance of the probabilities. Two subparagraphs follow, which are almost identical. The second version is:
“In deciding whether the refusal breaches the appellant’s right to respect for private and family life under Article 8 ECHR, I remind myself that that right is qualified. The appellant must establish on the balance of probabilities the factual circumstances on which he relies and that Article 8(1) is engaged. If it is, then I have to decide whether the interference with the appellant’s right is justified under Article 8(2). I first consider whether the appellant meets the requirements of the Immigration Rules. If he does then that finding is positively determinative of the appeal (provided Article 8 is engaged). If he does not, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the appellant.”
21. The FTT’s “Findings” begin at [20] with the statement that the FTT has considered all of the documents listed [3], the oral evidence of AM and TM and the “objective material served by the appellants.” The FTT then considered whether either PW or FJ met the requirements of Appendix ADR. At [21], the FTT conducted calculations about TM’s income according to the established formula for adequate maintenance and found that the financial requirement was met.
22. At [22], the FTT noted that the medical evidence was sparse but accepted counsel’s submission that this was “due to the lack of medical personnel willing to provide medical support for female patients,” because it was supported by the appellant’s “objective evidence”. Reference was made to specific pages of the appellant’s bundle and the details recorded there. At [23], it accepted with reference to the “very limited medical material submitted in tandem with the witness evidence of AM and FJ” that “PW is suffering from depression, panic attacks, hypertension, [and] rheumatoid arthritis”. It also noted FJ’s evidence that PW is suffering from “anxiety, severe nightmares and is talking to herself.”
23. At [24], the FTT recorded further details of FJ’s and AM’s statements, including that PW’s mental health had worsened significantly since the return to power of the Taliban, that she was afraid to leave the house, and that there was a stigma attached to mental ill health and the neighbours thought PW was possessed. At [25], the FTT again noted the limitations in the medical evidence but accepted the sponsor’s explanation for this. It then found that PW required long term care to meet her basic needs due to her undiagnosed mental health conditions. At [26]-[27], however, the FTT found that although “it is very clear that the appellant’s medical and mental health needs will not be met”, the personal care PW required was being provided by her daughter. PW therefore did not meet the requirements of Appendix AR.
24. The consideration of whether FJ met the ADR rules followed at [28]. The FTT found that she suffered from depression and anxiety, that this “made life difficult for her” and that due to the lack of mental health treatment in Afghanistan, her condition was likely to get worse. However, she did not meet the requirements of Appendix AR because the evidence did not establish that she needed personal care to perform everyday tasks.
25. The FTT then turned to “Article 8, outside the rules”. Both appellants’ claims were considered together “as the same considerations apply.”
26. Consistent with the self-direction quoted above at [21] of this decision, the FTT began at [30] by considering whether Article 8(1) was engaged. I set out the relevant paragraph in full:
“I find that because of their circumstances, Article 8 ECHR is engaged in terms of family life. Both appellants have a family life with their sponsors, that is, on the basis of their respective biological links to the sponsors and the pre-existing relationship with him from their time in Afghanistan and their continued contact with the appellants evidenced by the messages. Whilst these are untranslated, they do establish ongoing contact between the appellants and sponsors and provides a basis for their continuing family relationship. The sponsors also gave evidence at the hearing of the continuing family relationship.”
27. At [31], the FTT found that the respondent’s decisions interfered with that family life, was in accordance with the law and was in pursuit of a legitimate aim, such that the “critical issue” was proportionality.
28. The FTT conducted the proportionality assessment by considering that:
(i) The maintenance of effective immigration control is in the public interest;
(ii) It is in the public interest that people who seek to enter the UK can speak English, but if they do, this is a neutral factor;
(iii) It is in the public interest that people who seek to enter the UK are economically self-sufficient, but the sponsor’s income had increased since the date of application and the established standard of adequate maintenance and accommodation was now met. This, too, was a neutral factor;
(iv) To evaluate proportionality, a balancing sheet approach would be adopted, with care being taken not to double count.
29. At [35], the FTT set out the factors weighing against the appellants. Due to the grounds on which the respondent appeals, I set those out in full:
“Article 8 is not a general dispensing exercise. It is important to note that the Immigration Rules reflect the responsible Minister's assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under Article 8. I must (and do) take the Secretary of State's policy under the Rules, and whether a person does or does not meet them, into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case. The public interest is not a fixity, but here I am considering Article 8 because I have found that PW and FJ respectively do not meet the test under Appendix ADR. I give this factor considerable weight in favour of the respondent in the balancing exercise. As set out above I have taken into account the relevant s.117B public interest factors.”
30. The points in the appellants’ favour followed at [36]. They were:
(i) Their family life, which was given “some weight”;
(ii) The hardship the appellants would face if not permitted to enter the UK. Although they were supported financially by the sponsor and that financial support could continue, the environment in Afghanistan was “very harsh”, particularly for women, who could not work, access health care or “other social goods” and were effectively confined to their homes. This was having a “massive impact” on women’s mental health. In the case of these appellants, they did not have any family support, which might otherwise have mitigated the impact of the Taliban regime. They would not receive medical or psychiatric care, which would have a very adverse effect upon their health.
(iii) The appellants’ circumstances in Afghanistan were “likely to be a source of real anguish” for AM and TM;
(iv) The FTT had “particular regard to the “lack of access to mental health care”. The FTT referred here specifically to the pages of the appellants’ bundle containing the reports from the ODI SOAS and Action Against Hunger USA, listed above at [19]. A long excerpt from the respondent’s 2021 CPIN, Afghanistan: Medical Treatment and Healthcare followed.
(v) PW required long term personal care to perform every day tasks, and while her daughter could provide that personal care, it was “very clear that PW’s medical and mental health needs are not presently being met and there is no prospect that they will be for the foreseeable future.”
31. At [37], the FTT balanced the competing factors against each other. It began by self-directing as to the “normative guidance” at section 117B. It concluded that the “strong public interest in controlling immigration” was outweighed by the nature and strength of the appellants’ family life and the seriousness of the difficulties they were facing in Afghanistan.
The grounds of appeal
32. The respondent has been granted permission to appeal on five grounds. Somewhat disparate points were made under each ground, and the relationship between the ground of appeal identified and this particular decision was not always clear. It would have been helpful had the respondent followed the guidance set out in Rai and DAM (Grounds of Appeal – Limited Grant of Permission) [2025] UKUT 00150 (IAC) at Headnote 3. The grounds were helpfully clarified by Ms McKenzie at the hearing, although as she was not the author of the grounds, there were some that she struggled to explain. I set out below what I understand the respondent’s grounds to be. I note that under several grounds the respondent refers to the appellant in the singular but does not point to any distinction between the two appellants. I consider this is likely to have been a typographical error resulting from recycling grounds originally drafted in a different appeal (which is also consistent with the limited references to this particular decision in the grounds). I have therefore treated the grounds as referring to both appellants throughout.
Ground One: Making a material misdirection in law
33. This ground challenges the FTT’s finding that there was family life between the appellants and TM and AM. In spite of the heading, the first complaint is that the FTT gave “no reasons” for finding that there was family life. This is followed by the statement that it is “respectfully asserted” that “any family life enjoyed historically, must have been severely diluted by the passage of time since AM left Afghanistan”. In spite of this attempt to reargue the facts, Ms McKenzie clarified that the respondent was not arguing that the finding of family life was perverse, but that insufficient reasons had been given.
34. This is followed by two claims of material misdirection in law. The first is that the FTT erred by “failing to apply the principles identified by the ECtHR in Kumari v the Netherlands” (Application no. 44051/20) at [34]-[43]. As Ms McKenzie helpfully confirmed at the hearing, the respondent’s interpretation of this case is that it clarifies that there will only be family life between adult relatives in cases where a person is incapacitated to the extent that are “compelled to rely upon [their] family’s care and support in [their] daily life.”
35. The second misdirection in law is said to be a failure to apply Arshad v. SSHD [2025] EWCA Civ 355 at [118], in which the Court of Appeal confirmed that “The fact… that a factfinder has classified a relationship or relationships as 'family life' for the purposes of article 8 is only a starting point. It is necessary to understand the nature and quality of the relationship before it can be weighed against other considerations”. As a result of failing to apply this principle, it is said, the judge failed to recognise that the impact of refusing entry clearance would be “relatively limited”, as this would merely continue the status quo and the appellants had “no real connection” to the UK.
36. As I explained at the hearing, I consider that it is entirely clear that the principle from Arshad that the respondent relies on here goes not to the existence of a family life capable of engaging article 8 but to the article 8(2) balancing test. That is what the passage relied on explicitly says. I will therefore consider this issue where it properly belongs, which is in the challenge to the article 8(2) assessment that is raised most clearly under Ground Three.
Ground Two: Failure to give reasons, or adequate reasons on a material matter
37. The submissions made under this heading begin by repeating again that the FTT should have considered that the refusal of entry clearance would continue the status quo and that the appellants have “no real connection” to the UK. The respondent then also complains that the FTT should have considered the possibility of the appellants and the sponsor meeting in a third country.
38. Long block quotes follow: Jeunesse v. The Netherlands (2015) 60 EHRR 17 at [106] and Konstatinov v. The Netherlands (Application No 16351/03) at [46] and [48]. There is no specific link drawn between these block quotes and the challenged decision, such that it is not immediately clear how they help to show that the FTT failed to give adequate reasons for its decision.
39. The last submission made in support of this ground is:
“The existence of a positive obligation under Article 8 therefore could not be presupposed, and considered to be a relevant matter, when assessing whether the decision ‘engaged’ Article 8 at all.”
40. The grounds do not identify where this particular FTT judge relied on a presupposition that the UK owed a positive obligation to the appellants under article 8. Having found that family life as protected by article 8 existed, the FTT then proceeded to take a conventional article 8 “balance sheet” approach to whether the refusal decisions would have unjustifiably harsh consequences for the appellants or their relatives in the UK. It is therefore not clear whether this warning against a presupposition that article 8 is engaged is simply a general statement of what the respondent understands the law on article 8 to be, or a complaint about some step in the reasoning in this particular decision.
41. Moreover, as noted above, nothing said here refers to a failure to give reasons, which is the error of law identified in the heading. Nor is it clear what the “material matter” referred to in the heading is. The ground begins by asserting that the FTT overlooked factors that would appear to be related to the article 8 balancing test, but it ends with a complaint about the FTT’s decision that article 8 was engaged. The engagement of article 8(1) and the proportionality assessment under article 8(2) are two different matters.
42. At the hearing before me, following submissions from both parties (each of whom had a different understanding of what the ground was), I was unable to understand what this ground added to other grounds in which some of the same points were raised about the appellants’ lack of pre-existing ties to the UK. If the intention was to add force to this point by linking it to caselaw that establishes a principle that there is a significant distinction between a state’s positive and negative obligations under article 8, I consider that this is misconceived. Both cited cases contain the same statement of principle:
“the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.”
43. As I advised Ms McKenzie after the discussion of this ground at the hearing, I could only understand Ground Two as being a complaint that the weakness of the appellants’ ties to the UK and the fact that the refusal merely continued the status quo should have been taken into account in the article 8(2) assessment but were not, and that I would consider these points together with the other complaints about the article 8(2) assessment made under Ground Three. In light of the mismatch between the heading of the ground and the submissions made under that heading, as well as the failure to link those submissions to specific paragraphs of the decision being appealed, I consider that Ground Two does not identify an arguable error of law and requires no separate consideration.
Ground Three: Making a material misdirection in law on a material matter and, or perversity or irrationality
44. The submissions made under this heading begin with a promising clarity. The errors identified are clearly labelled as that the FTT:
“(i) failed to properly appreciate the strength of the public interest supporting the decision; and
“(ii) failed to recognise that the appellant’s family life was “precarious” and was “precarious” in a particular way.”
45. What follows is a list of different complaints, some of which are repeated several times. They are that the FTT erred by:
(i) Failing to take into account that the appellants have been able to access medical treatment and coming to the conclusion that “there is a complete absence of medical assistance for women in Afghanistan”. As clarified by Ms McKenzie, this is a perversity challenge to the finding that the women would not be able to access mental health care in Afghanistan;
(ii) Failing to acknowledge the strong public interest in immigration control that supported the ECO’s conclusion, namely that “the UK cannot be expected to provide a generally available route for family reunion in respect of those affected by armed conflict or difficult country conditions across the world” and has “chosen not to implement a scheme for family reunion in this context”;
(iii) Failing to identify the “precariousness” of the family life in this case, which had been identified as an important consideration in Jeunesse at [108] and R (Agyarko) v. SSHD [2017] UKSC 11 at [54].
(iv) Failing to be “clear why relevant family life is precarious” and to properly factor the particular nature and quality of precariousness into the proportionality assessment, as said to be required by Arshad at [119]-[120] and [123]. Family life in this case was “at the extreme end of precariousness, given that they [the appellants] have no connection whatever to the UK and have no expectation of living here.” This was a mandatory consideration.
46. The submissions made under this ground end with the statement that the assessment made in connection with Section 117B(3) was not sustainable, although there is no indication of why. As this complaint is not particularised, I say no more about it.
Ground Four: Giving weight to immaterial matters
47. This ground is clear. It is that the FTT erred in giving weight to the appellants’ current circumstances. It is submitted that the appellants’ circumstances could only be relevant to an article 8 private life claim or an article 3 claim, but as they were outside the UK, the UK had no obligations to them under the ECHR. The only question before the FTT was what effect the refusal of entry clearance would have on the sponsor’s family life with his mother and sister, as he was the only person to whom the UK owed an obligation under the ECHR.
48. The respondent relies here on ECtHR caselaw establishing that the UK has no obligations to the appellants under article 8 private life or article 3. This is uncontentious, but it is also irrelevant to the decision being challenged. The FTT allowed the appeal on article 8 family life grounds, not on article 8 private life or article 3 grounds. If there was any material error, it must have been in the article 8 family life assessment.
49. I therefore consider that this ground is not made out and requires no further consideration.
Ground Five: Making a material mistake of law on a material matter
50. The respondent repeats here that the appellants reside outside the UK and have “no sufficient connection to the UK”. The appellants were outside the territorial reach of the ECHR, and the principle set out in Beoku-Betts v SSHD [2008] UKHL 39 that there is “one family life” does not justify considering the appellants’ family life rights in this appeal. Al Hassan and Others (Article 8; entry clearance; KF (Syria) [2024] UKUT 00234 (IAC) is wrong and should not have been followed. The appellant relies here on Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372 at [40] and [59] and dismisses what was said at [16]-19] of Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 as obiter and not supported either by Beoku-Betts or Khan v. UK (2014) 58 EHRR ES15.
The hearing
51. At the hearing before me, Ms McKenzie and I both had the respondent’s bundle of 508 pages; Mr Bazzini had the papers in various separate bundles. I heard detailed submissions from both representatives. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Legal Framework
Assessing whether the FTT has erred in law
52. In deciding whether the FTT’s decision involved the making of a material error of law, I have reminded myself of the principles of appellate restraint set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 at [114].
53. The decision of the Upper Tribunal in Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) sets out guidance about appeals to the Upper Tribunal where a party seeks to rely on submissions that were not made below. For reasons that will become clear below, I consider the following headnotes to be particularly pertinent:
“4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified. […]
“6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
“7. 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.
“8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”
54. With regard to the respondent’s grounds challenging the sufficiency of the FTT’s reasons, I apply the guidance set out in MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) and Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC). Citing English v Emery Reimbold & Strick Ltd. (Practice Note) [2002] EWCA Civ 605, the Upper Tribunal reiterated in Joseph at [43] that:
“[The duty to give reasons] does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. […] It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision.”
Family life between adult relatives
55. The standard for finding that a relationship between adult relatives constitutes family life for the purposes of article 8 has been set by a long line of cases beginning with Kugathas v SSHD [2003] EWCA Civ 31. In summary, there is no presumption either for or against the existence of family life between adult children and their parents: Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”) at [24]. Each case must be decided on its own facts, with the burden being on appellants to establish the facts on which they rely. In Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886, Lady Justice Carr (with whom Baker LJ and Underhill LJ agreed) summarised the established principles as follows:
“45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.
“46. However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.
“47. The ultimate question has been described as being whether or not this is a case of "effective, real or committed support" (see AU [AU v SSHD [2020] EWCA Civ 338] at [40]) or whether there is "the real existence in practice of close personal ties" (see Singh 1 [Singh v ECO New Delhi [2004] EWCA Civ 1075] at [20]).
56. At the hearing before me, Ms McKenzie accepted that the established test for the existence of family life was that there was “effective, real or committed support”. She described the standard that the respondent was proposing in the grounds as incapacity to carry on daily life without support, and she acknowledged that this was different from the established standard. She was right to do so. It is difficult to identify a standard of incapacitating levels of dependence in Mobeen, particularly in light of the reiteration of the principle that “there is no requirement to prove exceptional dependency”.
57. I do not agree that Kumari narrows the definition of family life in the way contended for by the respondent. In the first place, it begins its statement of “General principles” by reiterating a series of well-established principles that have informed UK caselaw since Kugathas. These include 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’” ([35]), and also that the question of whether there are such elements must be decided on a case-by-case basis ([37]). They then add that “[t]he finding of the existence of ‘family life’ based on ‘additional elements of dependency other than normal, emotional ties’ will often be the result of a combination of elements.” There is no indication here that a significant revision of the definition of “additional elements of dependence” is intended.
58. The following two paragraphs do set out examples of dependency claims based on medical conditions, and note that family life has been found where “adults had a physical or mental disability or illness of sufficient seriousness and were in need of constant care and support from other family members” ([38]) but not in cases where the medical conditions relied on were not “incapacitating.”: [39] It is clear from what follows, however, that the court is not intending to set “incapacity” as the new threshold for a finding of family life. This is because the following paragraphs list a number of other factors that may point to the existence of family life. At [40]-[41], the court notes that financial dependency can play a role in establishing family life, but it is never sufficient on its own. At [42], it then lists “other elements that played a role” in the analysis of whether there were “additional elements of dependency”, but describes them as “examples” only. These include “the fact that the person with whom ties were claimed was the only surviving relation […] or the fact that substantial links with the country of origin continued to exist”. Neither financial support, nor whether there are other surviving relatives nor “substantial links with the country of origin” clearly speak to situations of complete physical incapacity. Indeed, if complete physical incapacity were a requirement, the analysis could have ended at [39].
59. The court ends this brief survey back where it started, namely by reiterating at [43] the established principle that
“the assessment of whether additional elements of dependency, other than normal emotional ties, have been shown to exist, requires an individualised review of the relationship at issue, and other relevant circumstances of the case.”
For these reasons, I conclude that Kumari does not set a new, higher standard for finding family life between adult relatives as proposed by Ms McKenzie and that judges should continue to apply the broad, multi-factoral assessment described in Mobeen.
The relevance of the impact of refusal on the applicant in entry clearance appeals
60. As acknowledged in the respondent’s grounds, the current position about the relevance of an applicant’s circumstances in entry clearance appeals is set out in Al-Hassan:
“1. The jurisdiction of the Human Rights Convention is primarily territorial, but as observed in SSHD v Abbas [2017] EWCA Civ 1393, family life is unitary in nature with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged.
“2. Properly interpreted, KF and others (entry clearance, relatives of refugees) Syria [2019] UKUT 413 is not authority for the proposition that it is only a UK based sponsor whose rights are engaged. While the rights of the person or persons in the United Kingdom may well be a starting point, and that there must be an intensive fact-sensitive exercise to decide whether there would be disproportionate interference, it is not correct law to focus exclusively on the sponsor's rights; to do so risks a failure properly to focus on the family unit as a whole and the rights of all of those concerned, contrary to SSHD v Abbas.”
61. The paragraphs of Abbas to which the Upper Tribunal was referring are:
“16. There is no dispute that the Strasbourg jurisprudence supports the proposition that a person outside the territory of an ECHR state may rely upon the family life aspect of article 8 (albeit in very limited circumstances) to secure entry into an ECHR state. The principle was established firmly in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The Strasbourg Court rejected the argument that article 8 was not engaged at all in immigration cases involving husbands who wished to join their wives in the United Kingdom. However, the ECHR held that article 8 did not give them a right to choose where to live together. In the cases before the court there were no obstacles to the couples establishing their family life in the husbands' countries of origin and not the United Kingdom. The claims failed. Similar cases have concerned parents who lived in an ECHR state but had left their children abroad. In Gül v Switzerland (1996) 22 EHRR 93 the Strasbourg Court concluded that family life could be enjoyed in the country of origin; in Sen v Netherlands (2001) 36 EHRR 81 the conclusion was to the contrary, with the result that family life would be enjoyed by the unit in the Netherlands.
“17. The underlying basis on which the family life aspect of article 8 falls within the jurisdiction of the ECHR in an immigration case, even though the person seeking entry is not in an ECHR state, was explained in Khan v United Kingdom (2014) 58 EHRR SE15. It concerned a Pakistani national whose leave to remain in the United Kingdom was cancelled on national security grounds whilst he was in Pakistan. He argued that he was at risk of treatment contrary to article 3 ECHR if he remained in Pakistan and was not allowed to return to the United Kingdom:
‘There is support in the Court's case law for the proposition that the Contracting State's obligation under art.8 may, in certain circumstances, require family members to be reunified with their relatives living in the Contracting State. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in the Contracting State and being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State … The transposition of that limited art.8 obligation to art.3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to art.3, regardless of where in the world that person might find himself. The same is true for similar risks of detention and trial contrary to arts 5 and 6 of Convention." (paragraph 27)’
“18. The Secretary of State has been unable to identify any case, still less a settled line of authority, in which the Strasbourg Court has held article 8 in its private life aspect to be engaged in respect of a person outside the Contracting State seeking to enter to develop that private life. Such a conclusion would have a striking effect and undermine the often repeated starting point of the Strasbourg Court that a state has the right as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. Private life as a concept has a broad reach, by contrast with family life. Even though article 8 is a qualified right (unlike article 3) the prospect of a very large number of individuals relying on private life in support of applications for short and long-term stays would be inevitable. To accept that the private life aspect of article 8 could require a Contracting State to allow an alien to enter its territory would mark a step change in the reach of article 8 in the immigration context. As a matter of principle it would be wrong to do so. As a matter of binding authority on the approach to an expansion of the reach of the ECHR it would be impermissible to do so.
“19. It would be wrong as a matter of principle because there is no equivalence for these purposes between private life and family life. The passage from Khan set out above recognises the unitary nature of a family for article 8 purposes with the consequence that the interference with the family life of one is an interference with the rights of all those within the ambit of the family whose rights are engaged. That is a feature of family life recognised, for example, in Beoku-Betts v Secretary of State for the Home Department [2009] AC 115 which held that the rights of all family members, and not only the person immediately affected by a removal decision, must be considered in the article 8 balance. As Lord Brown of Eaton-under-Heywood observed:
‘Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of the removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims." (paragraph [20]).
Lady Hale put it this way:
‘ … the central point about family life … is that the whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for family life of others, normally a spouse or minor children, with whom the family life in enjoyed.’ (paragraph 4)’”
62. The Upper Tribunal in Al-Hassan accepted that these paragraphs were obiter, but adopted them in a reported decision because they were considered to be “an accurate statement of the law endorsed by the Lord Chief Justice and the Senior President of Tribunals.”: [22] The respondent now asserts that this is wrong but does not put forward any arguments why. Moreover, the Court of Appeal’s statement of the law is based (in part) on the very cases that the respondent now says do not support that statement, but the respondent has not attempted to explain why she is right and the Lord Chief Justice and the Senior President of the Tribunals were wrong. She simply asserts it. Nor does she explain how (or even assert) that the Court of Appeal misinterpreted the cases it relied on at [16] of its judgment.
63. A bare assertion of disagreement is insufficient justification for departing from a statement of the law from the Court of Appeal that has been endorsed by the Upper Tribunal in a reported decision.
64. The FTT in this case allowed the appeal outside the rules, and not para. ADR 7.1 and 7.2, which are entitled “Eligibility under Article 8 ECHR for an Adult Dependent Relative. Nonetheless, I take these rules as a useful statement of the respondent’s view of how to decide whether it would be inconsistent with the UK’s obligations under article 8 to refuse entry clearance to a person who cannot meet all of the eligibility requirements of para. ADR 3.1 to ADR 6.4. Para. ADR 7.1 specifically instructs the decision-maker to consider the consequences of refusal “for the applicant or their family”. Thus, it appears to the be the respondent’s policy, which has been tacitly approved by Parliament through the negative resolution procedure (see: Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 11 at [46]-[47]), that the consequences of refusal for an applicant for entry clearance (who is by definition outside the UK) are to be taken into account in the article 8 assessment. The respondent’s published policy, Family policy: Adult dependent relatives, Version 6.0 also directs decision-makers to consider the consequences of refusal for the applicant. The respondent has not explained in her grounds why the rules and her policy should not to be taken to reflect her view of what article 8 requires.
Discussion
Ground One
65. I have set out above my reasons for rejecting the respondent’s argument that the judgement of the Third Section ECtHR in Kumari has clarified that family life does not exist between adult relatives except in circumstances of incapacitating dependency. Even if I am wrong about this, it cannot have been an error for the FTT not to have followed this particular decision, in preference to the established principles reiterated in Mobeen. It is a well-established in UK law that it is the decisions of the senior UK courts that must be followed by other UK courts and Tribunals, not the decisions of the ECtHR (and even less a decision that does not emanate from the Grand Chamber). As set out in Kay v Lambeth London Borough Council [2006] UKHL 10 at [43] (and recently endorsed in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64 at [30]):
“It will of course be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here.”
66. Therefore, even if I agreed with the respondent’s submissions about Kumari, which I do not, I would be obliged to dismiss her appeal on this aspect of Ground One. I further note Lord Bingham’s reference here to the duty of judges to review “Convention arguments addressed to them”. The respondent does not suggest that she ever addressed the FTT about her proposed new threshold for a finding of family life between adult relatives, such that the FTT cannot have had a duty to review them.
67. I therefore apply the existing standard of “real, effective and committed support” and “further elements of emotional and/or financial dependency” in assessing the rest of what is said under Ground One, as clarified by Ms McKenzie at the hearing before me. This is that at [30] the FTT gave “no reasons why” article 8 was engaged on these facts. Mr Bazzini accepted that it would have better if the FTT had given more detail in that paragraph about which aspects of the appellants’ “circumstances”, their relationship with the sponsor prior to his flight from Afghanistan, and AM’s and TM’s oral evidence it was, in particular, relying on in finding that there was family life. He urged me, however, to read the decision as a whole and to treat this paragraph as referring to the various factual findings made elsewhere in the decision. As to the oral evidence, he pointed out that the FTT had recorded at [14] AM and TM had adopted their statements, such that the FTT should be understood as taking into account at least what was said in those statements. He also took me to the numerous places in the decision where the FTT accepted specific facts set out in AM’s and in FJ’s statement.
68. I agree that, in line with Fage UK and the other cases cited above at [54], I am required to read the decision as a whole. I also bear in mind that judicial decisions can always be better expressed. I consider that when the decision is read as a whole, the FTT did meet the standard for adequacy of reasons set out in MK. At [22]-[28], the FTT identified the personal evidence before it relevant to the appellants’ current circumstances and made clear findings on the basis of that evidence. Further findings about their circumstances were made at [36]. These include not only the various hardships the appellants are suffering as women in Afghanistan but also that they are supported financially by the sponsor. In line with Fage, I consider that the findings made at [36] can be taken into account in deciding whether the reasons by the FTT given are sufficient for the respondent to know why she lost, even though they come after [30]. As to the family relationship prior to AM’s and TM’s departure from Afghanistan, it is clear that the FTT accepted what was said in both AM’s FJ’s statements, because it relied on them repeatedly in the decision. These statements said that they had lived together and that AM had left not by choice but in fear of the Taliban. The FTT further referred to the WhatsApp messages showing frequent contact and gave a reason for relying on them in spite of their not having been translated. Ms McKenzie suggested this was perverse, but that complaint was not raised in the respondent’s grounds an in any event I do not accept it. It is not irrational to treat records showing frequent contact as evidence of an ongoing relationship, and the FTT also had before it statements from the family explaining why they were in contact so often, while the brothers’ evidence must have reflected what they have spoken about. It was not perverse to put weight on the evidence of frequent content in this context. As to what was said in the oral evidence, I accept that this could have been spelt out more clearly, but I also note the many places in the decision where the FTT accepts what AM says in his statement about the appellants’ circumstances, and the finding at [36] that the appellants’ circumstances are likely to be a source of “real anguish to both brothers”.
69. For these reasons, I find the complaint that the FTT gave inadequate reasons for the finding of family life is not made out.
Ground Three
70. Under Ground Three, the respondent identifies matters that should not have been taken into account in the article 8(2) assessment and matters that were overlooked.
71. The matter that should not have been taken into account was the appellants’ lack of access to medical assistance, because this finding was perverse in light of the “medical reports” of Dr Alimi. This submission has no merit. The FTT carefully considered Dr Alimi’s short notes at [22] and took their lack of detail as evidence of the appellants’ inability to access adequate medical care. Given their very brief, mostly handwritten and somewhat confusing content, this was not an irrational conclusion to reach. Ms McKenzie also sought to persuade me that the finding that medical care would not be available was simply perverse on the basis of the independent country evidence before the FTT. This was not how the ground was put in the permission application but I allowed her to develop the point nonetheless. I find this a bizarre submission. The FTT set out the respondent’s most recent CPIN on medical care in Afghanistan, which was written shortly after the Taliban takeover and records very limited access to care already and concerns about what the Taliban might do in the future now that it had returned to power. The FTT also referred to more recent evidence, which reported that mental health care in general had been “wiped out” and was particularly difficult for women to access. This is unsurprising, due to the widely documented restrictions on women’s work and on women seeking help from male professionals, as well as the severe limitations on women’s freedom of movement more generally. It was clearly open to the FTT to find on the basis of this evidence that the appellants would not have access to mental health care for the foreseeable future.
72. The first factor that the respondent says was overlooked was the strong public interest in immigration control. I find that this complaint is not borne out. The FTT refers to the strong public interest in immigration control repeatedly throughout its article 8 assessment. As to the specific consideration that was said to lead to a stronger public interest in refusal in this particular case – namely that the appellants are affected by armed conflict and “difficult country conditions” but no specific family reunion route has been created for them – this was not raised by the ECO or in the Respondent’s review and therefore, following Lata, it cannot have been an error for the FTT not to consider it.
73. The second factor that it is said has been overlooked is the “precariousness” of the family life between the appellants and their relatives in the UK. As Mr Bazzini rightly submitted, the respondent’s reliance on the specific concept of “precariousness” is misplaced, because that word has consistently been used by the ECtHR and UK courts to describe a family life formed when a person’s immigration status in the host country is precarious. The court in Arshad set out at [122] two reasons that a precarious immigration status is relevant to the weight to be given to a family or private life in the article 8 assessment:
“The first is that people who know that their relationship is formed and developed when one person has no right to be in the host country cannot expect to be able to stay there on the basis of that relationship. The second, which applies in the case of children, who may well not have that knowledge, is that it is not in the public interest for the parents of children to present the host state with a fait accompli in order to get permission to stay there.”
Self-evidently, these reasons do not apply on the facts of this case.
74. I accept the more general point that the nature and strength of family life is relevant to the article 8 assessment. This is the broader point made in Arshad at [118]. The only “mandatory consideration” identified in Arshad, however, was the appellant’s status as an overstayer. It is telling that the respondent has not been able to point to any caselaw making it mandatory to take into account whether an applicant for entry clearance has a pre-existing “connection” to or an “expectation” of being able to live in the UK when deciding how much weight to put on family life in the article 8 assessment. That is not to say that it would be an impermissible consideration, had it been raised below. But it is not a mandatory consideration that the FTT erred by not having regard to in spite of the respondent’s failure to raise it. Lata therefore applies.
75. Lata also applies to the various other concerns the respondent has raised for the first time in her grounds, namely the fanciful possibility that the appellants could travel to meet AM and TM in a third country and the fact that the refusal of entry clearance would continue the status quo.
76. For these reasons, Ground Three is not made out.
77. As to the complaint raised under Ground One that the FTT failed to identify the nature and strength of the appellant’s family life in the Article 8(2) assessment, I find that this is not made out. The FTT said at [36](a) that it put “some weight” on the appellant’s family life. In a jurisdiction in which the broad concepts of “no weight”, “little weight”, “some weight” and “considerable weight” are routinely used, I take this as an indication that the FTT had evaluated the family life and decided how much weight to put on it before entering it into the balance sheet. I do not consider that a more precise weighting of the strength of the family life was required. That would impose a degree of rigidity on what is a broad, evaluative assessment. In addition, in the final assessment at [37] the FTT referred to having considered the “nature and strength” of the family life, and in the absence of evidence to the contrary, I assume that, as an expert tribunal, it knew what was involved in such a consideration. Although it might have been clearer if it had done so, the FTT was not required to spell out that its decision that the family life was worthy of “some weight” reflected an evaluation of its nature and strength that was based on the factual findings it had made throughout the decision.
78. For these reasons, the complaint that the FTT failed to consider the nature and strength of the appellant’s family life is not made out.
Ground Five
79. Ground Five is not made out because it cannot have been an error on the part of the FTT to apply the law as set out in a reported decision of the Upper Tribunal, particularly when that decision relied on a statement of the law by the Court of Appeal. Still less can it have been an error to follow this statement of the law when it is consistent with the approach taken by the respondent below. Nowhere in the refusal decision or the review did the respondent suggest that the appellants’ circumstances in Afghanistan were irrelevant to whether there were exceptional circumstances that meant that refusing them entry clearance would be a breach of article 8. On the contrary, there are multiple references to those circumstances. Indeed, to disregard the consequences of refusal for the appellants would have been contrary to Para. ADR 7.1 and to the respondent’s published guidance. Even if the respondent had put forward persuasive reasons as to why the Upper Tribunal and the Court of Appeal have got the law wrong, moreover, I would still be required in accordance with the doctrine of precedent to dismiss the respondent’s appeal.
80. For these reasons, the decision of the FTT did not involve the making of any material errors of law.

Notice of Decision
The decision of the First-tier Tribunal dated 3 April 2025 is upheld, with the consequence that the appellants’ linked appeals against the respondent’s decisions to refuse their applications for entry clearance to the UK are allowed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 October 2025