Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003641

First-tier Tribunal No: HU/51419/2024
LH/07493/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

DHURATA KUKA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Smith, Counsel instructed by Friends Solicitors
For the Respondent: Mr Pugh, Senior Home Office Presenting Officer

Heard at Field House on 18 December 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Row promulgated on 13 June 2025 who dismissed her appeal against the respondent’s decision to refuse her human rights claim.
2. The First-tier Tribunal did not make an anonymity order and I see no reason to make one either.
Background
3. The appellant, a citizen of the Albania who entered the UK to visit her sister and her family. Her sister and brother in law moved to the UK in December 2019, having previously lived in Italy with the appellant. They are EU nationals. After arrival they applied for settlement under the EU settlement scheme and obtained status. During her visit she applied under the EU settlement scheme as a dependant family member. This was refused by the respondent on 16 May 2022 and was the subject of an appeal. In a decision dated 07 February 2023, the First-tier Tribunal (FTT1) dismissed the appeal as the appellant was unable to meet the requirements of the Immigration rules. In doing so, it made findings of fact about the appellants circumstances including the credibility of her account regarding the nature of her relationship with her sister and her sisters family. As this was an EU settlement appeal the Judge did not go on to consider Article 8 ECHR as this had not been raised by the appellant (who was unrepresented). In any event, it would have been a new matter and the Secretary of state had not consented to its consideration.
4. The appellant then made an application under Article 8, on the basis of her family life with her sister and her sister’s family. The application was refused leading to a further appeal before the First-tier Tribunal (FTT2). Before the FTT2, the appeal was solely pursued under Article 8 ECHR, focusing on family life as an dependant adult and private life based on very significant obstacles to reintegration. The FTT2 dismissed the appeal.
Permission to Appeal
5. Permission to appeal was granted on three grounds:
(a) Ground 1 –the Judge failed to take FTT1’s findings as the starting point and/or failed to explain why he departed from them (as per Deevaseelan* [2002] UKIAT 00702), particularly when considering family life and proportionality.
(b) Ground 2 – the Judge did not adequately consider the appellant’s domestic abuse history and resulting emotional dependency on her sister. This omission was material to the Article 8 proportionality assessment
(c) Ground 3 – the Judges approach to the medical evidence of Dr Heke was irrational and inconsistent, thus legally flawed. The Judge improperly questioned Dr Heke’s expertise as she was a psychologist as opposed to a psychiatrist. The Judge stated he would give the report weight but then failed to consider it and/or attach any weight to it.
Discussion and reasons
6. With respect to ground one, Ms Smith submitted that the Judge makes no reference to Deevaseelan and/or the principles arising out of the starred decision. She accepted at paragraph 1, the Judge acknowledged the 2023 EU settlement appeal had been dismissed and that the appellant was appeal rights exhausted at that time. However, the Judge did not take those previous findings as the starting point or explain why he was departing from them, when assessing proportionality under Article 8 ECHR. Ms Smtih submitted this was material as the findings were directly relevant to the proportionality assessment given the FTT1 made findings upon the appellant’s circumstances of dependency and domestic violence.
7. Mr Pugh relied on the Rule 24 response. With respect to ground 1, he accepted the Judge made no reference to Deevaseelan or the previous Judge’s findings. He submitted the Judge was aware of the previous decision as he referred to it when recounting the procedural history, thus he would be aware it was the starting point. In any event, he submitted the findings made by the Judge do not go against the conclusions of previous determination. Thus, no reasons were needed as the Judge did not depart from FTT1’s findings.
8. Whilst I accept the express reference to Deevaseelan is unnecessary where the guidance has been applied, this is not the case within this decision. The Judge has not considered the previous findings at all within the decision. Mr Pugh argued the Judge did not make findings which departed from the previous Tribunal conclusions. However, the issue is not making different findings but that the judge did not consider the findings by the first Judge, particularly as the appellants circumstances have not materially changed since that first decision. This was his starting point and he did not engage with the decision. This is a material error of law.
9. Turning to ground two and three Ms Smith submitted the Judge failed to adequately consider or make any findings, about the appellant circumstances as a victim of domestic violence who had high emotional dependency upon her sister. She accepted the Judge refers to the appellant having an unhappy marriage and that she was a victim of domestic abuse, when he summarised the “Appellant’s Details”. However, the Judge did not refer to the evidence of dependency from the appellant, her sister and brother in law or indeed her vulnerabilities as a domestic violence victim within his proportionality assessment. This she argued was material given this was the core issue.
10. Mr Pugh submitted that the claimed errors were an attempt to reargue the appeal. The Judge considered the appellant’s movements since her sister came to the UK and the voluntary periods of separation. This he argued amounted to 2-3 years of separation. The Judge he submitted was entitled to place weight on this voluntary separation and that the appellant coped well, having declined treatment, during that period. He accepted the decision lacked express reference to dependency and the history of domestic violence. However he submitted the Judge had found family life exists which indicated he accepted emotional dependency, thus the Judge did not need to set this out when considering proportionality.
11. From paragraphs 50-57, the Judge assesses proportionality having found there is a family life in existence. In doing so his sole focus in this assessment is on factors in favour of removal. There does not appear to be any consideration of factors mitigating against the appellant’s removal such as the previous findings of FTT1, which include she is a past victim of domestic violence and that she is dependant upon her sister. I raised this with Mr Pugh who submitted that the Judge considered dependency when finding there was a family life in existence ad so he did not need to express this when assessing proportionality. He stated it could be inferred from that finding that the Judge accepted there was dependency as per Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. I raised with both parties the difficulty with that submission namely that the Judge at paragraph 49, gave no reasons for finding that family life exists. This in and of itself is problematic as it is not in accordance with guidance given in Kugathus. However, this is not a point raised in the grounds for obvious reasons. In any event, given the absence of reasons , I am unable to infer as suggested by Mr Pugh that the Judge accepted there was dependency beyond normal emotional ties. This still leaves the issue that there is no balancing exercise conducted by the Judge to enable the loosing party to understand why in view of the evidence there were not unjustifiably harsh consequences, which were exceptional and outweighed the public interest. Accordingly, I am satisfied this is a material error of law, as the Judge failed to give reasons or adequate reasons for findings on material matters.
12. With respect to ground three Ms Smith submitted that the judge adopted a flawed approach to Dr Heke’s report for serval reasons: (a) the Judge took issue with Dr Heke being a psychologist as opposed to a psychiatrist; (b) the Judge refers to an inability to diagnose but then accepts the diagnosis; and (c) he stated he would consider what weight to attach to the report but then made no further findings on the report. She submitted as Article 3 ECHR was not being pursued, the report was relevant to the issue of dependency and vulnerability. She accepted it was 2 years old but stated the report identified the appellant’s circumstances at the time and supported the account of the instrumental nature of the sister’s support, which prevented the appellant from having a mental health crisis. She submitted the Judge failed to consider this evidence within the proportionality assessment. For reasons given above, I am satisfied the Judge did conduct a balancing exercise when assessing proportionality and in doing so did not identify what weight he was attaching to Dr Ehke’s report.
13. In summary the Judge’s overall approach to the Article 8 ECHR assessment did amount to material error of law, as from 49-60 the Judge does not undertake any consideration of the previous Judge’s findings, the appellants accepted circumstances and the medical evidence when conducting the balancing exercise.
14. The Upper Tribunal interferes only with caution in the findings of fact by a First-tier Tribunal which has heard and seen the parties give their evidence and made proper findings of fact. This has been stated numerously by the higher courts, for example recently in Volpi & Anor v Volpi [2022] EWCA Civ 464. Unfortunately, that is not the position here. The Judge’s decision was vitiated by material errors in the way that he approached the evidence in the assessment of Article 8 ECHR outside the framework of the Immigration Rules.
15. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statement. I consider, however, that there is a need for updated evidence given this appeal relies on medical conditions which are evolving over time and further it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
The decision to allow the appeal is therefore confirmed. I set aside the decision of the First-tier Tribunal.

S K Kudhail

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 December 2025