Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003683
First-tier Tribunal No: HU/53250/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of October 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

HADEEL BASEIL MOHAMMED
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Sanders, Counsel instructed on behalf of the Appellant
For the Respondent: Mr N. Wain, Senior Presenting Officer

Heard on 30 September 2026

DECISION AND REASONS
1. The appellant appeals, with permission, against the determination of the First-tier Tribunal promulgated on 2 May 2025. By its decision, the Tribunal dismissed the appellant’s appeal on all grounds against the Entry Clearance Officer’s decision dated 19 February 2024 to refuse her application for leave to enter the UK under the provisions of Appendix Family Reunion.
2. The FtTJ did not make an anonymity order and no grounds were submitted during the hearing for such an order to be made.

Background:
3. The factual background to the appeal can be briefly summarised as follows. The appellant is a citizen of Syria. She made an application on 31 August 2023 under Appendix Family Reunion (Protection) under the Immigration Rules. This was based on her relationship and marriage to the sponsor who had entered the UK from Egypt on 18 May 2023 and had been re-settled in the UK along with his family members by the UNHCR and had refugee status (also dated 18 May 2023 with leave to remain). The appellant stated that they had met on line and had continued their relationship until they decided to marry. The marriage took place on 8 March 2023 in Syria by proxy as evidenced by the marriage certificate. Following this the appellant travelled to Egypt on 9 March 2023 and remained there with the sponsor until he left to enter the UK via re-settlement on 18 May 2023. The application was made by the appellant to join her spouse in the UK under Appendix Family Reunion (Protection) of the Immigration Rules.
4. The respondent considered her application and, in her decision letter dated 19 February 2024 refused the claim. The relevant part of the decision is that the application was made on the basis that she was the partner of the sponsor named in the application who had protection status in the UK. The decision maker considered the eligibility relationship requirements for a partner applying for family reunion. It recorded that the was that the appellant and the sponsor had a proxy marriage. Whilst it was understood that proxy marriages are allowed within Syrian law, Paragraph FPR 4.1 of the IR stipulated in order to qualify within the rules either a marriage must have taken place prior to the sponsor’s departure from their country of habitual residence or the sponsor and the applicant must demonstrate that they lived in relationship akin to marriage two years or more prior to the sponsor’s departure from their country of habitual residence. The decision-maker was not satisfied that the appellant had lived with the sponsor for up to 2 years before he left Syria which was considered to be the country of habitual residence. The application was therefore refused under paragraph FPR 4.1(b) od Appendix Family Reunion (Protection) of the Immigration Rules.
5. It is of note that the decision-maker assessed the issue of habitual residence by reference to Syria rather than Egypt and in the context that the marriage taken place in Egypt which was after he left Syria which was the place the respondent considered was his place of habitual residence.
6. The appellant appealed the decision and came before the FtT on 1 May 2025. The FtTJ found on the evidence that the relationship began whilst the appellant was in Syria and the sponsor was in Egypt and whilst there was no requirement for the pair to have lived together during this time, the FtTJ found that the relationship did not transition into a genuine and subsisting relationship until February 2023 when they agreed to marry. The FtTJ found that this was “an indication of the intention for a long-term subsisting relationship as is required”. As to the issue of habitual residence, the FtTJ determined that the evidence demonstrated that Egypt was his country of habitual residence. However, the FtTJ found that on the evidence the sponsor did not leave Egypt to seek protection in the UK and concluded that as such he cannot be considered to have formed his relationship with the appellant pre-flight and could not meet the Rules. The FtTJ dismissed the appeal.
7. The appellant sought permission to appeal in grounds dated 30 May 2025. Ground 1 asserted that the FtTJ had made a material misdirection in law concerning the appropriate application and the consideration of article 8. In essence it was argued that the FtTJ erred in law by analysing the Immigration Rules without engaging with human rights issues pivotal to the appellant’s case, i.e. outside the Rules. Ground 2, whilst headed “ The FtTJ erred in fact”, was a ground based on procedural unfairness, and that the FtTJ determined the appeal of an issue that was not raised in the decision letter and that the FtTJ had erred in law by overlooking or failing to take into account relevant evidence in the bundle confirming that the sponsor held refugee settlement in the UK and also that the FtTJ had misunderstood the intricacies of the Syrian Vulnerable Persons Resettlement Scheme (VPRS) under which the sponsor was granted resettlement in the UK and had a clear and defined purpose articulated in the policy.
8. Permission to appeal was granted by the same FtTJ against her decision on 19 August 2025. This was a limited grant of permission and FtTJ refused permission on ground one, stating that it had been conceded before her that any appeal outside of the rules would stand or fall with the decision made on the Immigration Rules.
9. On ground 2 the FtTJ stated: “It is further argued that the IJ erred in adding a further issue not previously raised, namely whether the Sponsor left Egypt to seek protection in the UK and failing to understand the objective evidence relating to the Syrian Vulnerable person resettlement scheme. The decision letter and review in this case was prepared prior to the change in the rules which had previously required cohabitation as evidence of the claimed relationship. As at the date of the hearing, the Respondent conceded that the relationship was now evidenced following the change in the Rules. However, it was instead argued that Egypt was not the Sponsor’s previous country of habitual residence as he had been granted refugee status in Egypt and so was not fleeing that country to seek protection for the purpose of the Rules. Whilst this was discussed at the start of the hearing and no issue was taking with this issue being raised by the Appellant’s advocate, it is argued that regardless, this may have placed the Appellant at a disadvantage. As such, this is an arguable error of law and permission to appeal is granted on this limited ground.”
The hearing before the Upper Tribunal:
10. The appeal therefore came before the Upper Tribunal and the hearing took place on 30 September 2026. The appellant was represented by Ms Sanders, of Counsel and the respondent was represented by Mr Wain, Senior Presenting Officer.
11. Ms Sanders indicated that she relied upon the grounds of challenge and a written note which had been sent to the Tribunal hearing centre. This had not been uploaded to the CE file however Mr Wain indicated that he had a copy of the Counsel’s note and had been able to consider its contents.
12. There was no Rule 24 response on behalf of the respondent but Mr Wain set out that the position of the respondent was that there was no procedural unfairness and that the FtTJ applied the law and was entitled to find that the appellant could not meet the Rules based on the assessment made applying FRP Rule 4.1(b) under the Rules that the sponsor did not leave Egypt to seek protection in the UK. Thus, he sought to argue that the FtTJ applied the law correctly.
13. The note referred to the grounds as now ground 1 as “misapplication of the law and Home Office guidance” and that the FtTJ had found that the relationship had started at a time when the sponsor was in Egypt and went on to find that Egypt was the sponsor’s place of habitual residence. It went on to state that rather than concluding that this satisfied FRP 4.1(b) the judge went on to note that the rules required the sponsor to form his pre-flight relationship before leaving his country of habitual residence to seek protection in the UK (paragraph 15). She seems to have equated this with requiring that he was fleeing persecution in Egypt and that was not correct. It is not a requirement that someone seeks protection in the UK because they have a well-founded fear of persecution in the person’s former habitual residence. However, this is the requirement that the FtTJ imposed on the appellant.
14. Ground 2 is based on procedural fairness. It was submitted that the issue that the judge raised as to whether the sponsor left his country of habitual residence because he had a well-founded fear of persecution there was not raised at the start of the hearing or in the decision letter the respondent all the respondents review. This was not fair to the appellant as the FtTJ had recognised when granting permission to appeal. The issue had been identified as whether the couple formed a pre-flight relationship. There was no reference to whether the appellant came to the UK seek protection and it was on this basis that the appeal was dismissed. The appellant had no opportunity to prepare for this.
15. In their respective submissions both advocates provided their arguments on the substantive ground and on the issue of whether the FtTJ had properly construed the meaning of paragraph 4.1(b) of Appendix FRP. There was no issue between the parties raised as to the principal findings of fact made by the FtTJ. Nor did the respondent seek to argue that the FtTJ was wrong to find that Egypt was the sponsor’s place of habitual residence. The position set out in Counsel’s note was that if the submissions made on behalf of the appellant were correct and that the FtTJ had not construed the Rule correctly then the Upper Tribunal was invited to find a material error of law and to allow the appeal. The position on behalf of the respondent in relation to the substantive grounds was that the FtTJ was correct to construe the wording of the requirement of paragraph 4.1(b) in the way that she had done and that this was a correct interpretation of the Rules. In this respect he also relied upon the guidance. Both advocates also addressed the issue of procedural fairness in their respective submissions.
16. Having heard the submissions of the advocates and in the context of the grounds and what had been provided in Counsel’s note, I indicated to the parties that I had reached a conclusion on the ground which related to the issue of fairness and that I had concluded that the ground had been established as an error of law but that in view of the of the substantive ground and taking into account the respective position of each of the parties and their arguments in law as given at the hearing, the error would only be material if the FtTJ had erred in her decision as to the construction of the Rules. In other words, as the parties had now provided their submissions on the substantive issue of the meaning of paragraph 4.1(b) that was the issue to be decided.
17. As to the issue of materiality, and whether the remaining issue should be determined at this hearing I canvassed the views of the advocates. In Counsel’s note in the section entitled disposal, Ms Sanders had set out that if the first ground is made out ( the substantive ground) the tribunal is invited to remake the decision and allow the appeal. If the tribunal finds there is a material error on the basis of the second ground of fairness, the tribunal is invited to retain the findings made by the FtTJ and retain the matter for rehearing in the Upper Tribunal.
18. In light of my assessment that the ground related to fairness was made out Ms Sanders was asked whether she sought to the substantive ground to be considered by the Upper Tribunal at this hearing. This was based on the submissions that she had made in that regard, or whether it was considered that the issue should be determined at a later hearing. Both advocates were invited to consider their respective positions and whether the substantive ground should be considered at this hearing or for it to be adjourned to be heard at a later date. The advocates were therefore given time to consider their respective positions. They were invited to take the time that they required in reaching their decisions.
19. When the hearing resumed, Ms Sanders submitted that she was content that the appeal should continue at this hearing on the basis of the submissions that were made as did Mr Wain and that this would dispose of the appeal (applying TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109) and in light of the assessment made that the parties relationship started in 2019, but that it did not become a serious relationship until February 2023 when they agreed to marry. They lived together as a married couple until the sponsor left to seek protection in the UK and it was accepted that they had a genuine and subsisting relationship as relevant to Article 8 (1) of the ECHR.
20. Thus, both parties were in agreement that it was not necessary for the Tribunal to adjourn the remaking for a further hearing and both relied upon their respective submissions made on the substantive ground. Both parties were also given the opportunity to make any further submissions that they sought to make in support of their respective positions in law.
21. At the conclusion of the hearing, I therefore reserved my decision.
Discussion and analysis:
22. The are two grounds of challenge advanced on behalf of the appellant. Before undertaking an assessment of those grounds, it is necessary to set a summary of the FtTJ decision.
The decision of the FtTJ:
23. The FtTJ heard the appeal on 1 May 2025. At the hearing the FtTJ recorded the change in the respondent’s position in that initially it was respondent’s case that the appellant and sponsor spent only a few weeks together in Egypt but did not live together either in Egypt or Syria. It was further not accepted that family life has engaged as the evidence did not support the claim that the appellant and the sponsor were in a genuine and subsisting relationship. However, by the time of the hearing, it was accepted that the rules had changed which meant that there was no longer a requirement for the appellant and sponsor to have lived together for those purposes and further that the respondent no longer took issue with the claim that appellant and the sponsor were in a genuine and subsisting relationship ( see paragraph 3 of the FtTJ’s decision). The respondent maintained that the appellant did not form a pre-flight relationship the sponsor as the relationship was formed whilst in Egypt which is not a country from which the sponsor had fled to seek protection the UK.
24. The FtTJ set out the issues in dispute at paragraphs 4 – 5 of her decision recording that “the parties agree that I must resolve the following factual disputes about the appellant’s ability to meet the requirements of the immigration rules: did the appellant and sponsor form a pre-flight family unit?”
25. The FtTJ set out at findings of fact on this issue between paragraph 11 – 19 of her decision. The FtTJ set out the factual history at paragraph 11, recording that none of the factual information was disputed by the respondent. The relationship began in 2019 via social media whilst he was in Egypt and the appellant was in Syria. They became engaged in February 2023 are married by proxy in March 2023. The appellant’s witness statement set out that she travelled to Egypt to be with the sponsor on 9 March 2023 after the proxy marriage and spent time there with sponsor until she returned to Syria on 17 May 2023 and the sponsor travel to the UK with his family. It was accepted by the respondent that the appellant and sponsor were in a genuine subsisting relationship and that noting the change in the rules is no longer required cohabitation.
26. Thus, the FtTJ set out the issue at paragraph 12 that she had to resolve where the relationship was formed and whether this took place in the sponsor’s country of habitual residence for the purposes of the rules specifically 4.1 (b) of Appendix FRP ( see paragraph 12).
27. The FtTJ found on the evidence that the relationship began whilst the appellant was in Syria and the sponsor was in Egypt and whilst there was no requirement for the pair to have lived together during this time, the FtTJ found that the relationship did not transition into a genuine and subsisting relationship until February 2023 when they agreed to marry. The FtTJ found that this was “an indication of the intention for a long-term subsisting relationship as is required”.
28. However, the FtTJ set out that the issue that she was required to determine was whether Egypt was the sponsor’s country of habitual residence. It is noted that the respondent’s decision was based on the assessment that the sponsors place of habitual residence was Syria, his country of nationality.
29. The FtTJ therefore undertook an assessment of this issue by reference to the evidence given, the arguments advanced by the parties and the decision of AA (Marriage, Country of nationality) Somalia [2004] UKIAT 00031. The FtTJ resolved that issue in favour of the appellant and that the evidence was clear that he had lived in Egypt since he had fled Syria in 2013 with his family members and had lived in Egypt with status and residence which was renewable every six months. He was able to work in Egypt. The FtTJ therefore made a finding that “the evidence, particularly the duration of residence in Egypt, all suggest that Egypt was his country of habitual residence, as argued by the appellant. I find that this was the case.”
30. However, the FtTJ at paragraph 15 considered that the rules required the sponsor to have formed his pre-flight relationship with the appellant before leaving his country of habitual residence which the judge has found to be Egypt, to seek protection in the UK. Whilst it is not disputed that the sponsor had protection status in Egypt the appellant had argued that the sponsored left Egypt to seek protection in the UK. The FtTJ set out the sponsor’s oral evidence about safety in Egypt, that the application to leave to resettle in the UK was made prior to the Covid pandemic but he did not travel until 2023 for the application to be processed.
31. The FtTJ resolved the issue between paragraphs 16 – 19. It was argued on behalf of the appellant that the sponsor’s family were resettled in the UK by the UNHCR and therefore they left Egypt for the purposes and by reference to the Syrian Vulnerable Persons Resettlement Scheme (SVPR) guidance exhibited in the bundle at page 5. The FtTJ found that the scheme suggested that support was offered to those in need but it did not follow that resettlement was for the purpose of the need to remove the sponsor from risk or to offer protection.
32. The FtTJ recorded the submission made on behalf of the appellant that this had not been a point raised by the respondent in the decision letter but considered that there was a live issue which related to whether the relationship was formed pre-flight before the sponsor left his country of habitual residence. The FtTJ recorded “ it must follow that the appellant has to evidence which should be considered the country of habitual residence and whether it meets the requirements for the purpose of 4.1 (b).”
33. The FtTJ concluded that she did not find that the sponsor left Egypt for the purpose of seeking protection in the UK. As such he could not be considered to have formed the relationship with the appellant pre-flight and therefore could not meet the Rules.
The grounds:
34. Dealing with the ground of procedural unfairness Ms Sanders referred to the grant of permission by the FtTJ herself who found that it was arguable that there had been procedural unfairness at the hearing. She submitted that seeking protection and what that meant under the Rules had not been raised by the respondent in advance of the hearing and had not been clearly fleshed out as to what was raised and therefore no evidence was submitted on this point. The FtTJ accepted when granting permission that this might have placed the appellant at a disadvantage. This was an issue that should have been flagged up prior to the hearing but the issue was whether there was a “pre-flight relationship” and the sponsor’s country of habitual residence (see paragraph 11 of the decision). The FtTJ had found in favour of the appellant at paragraph 14 but at paragraph 15 found that on the face of the evidence it did not suggest that the sponsor left Egypt to seek protection in the UK as he had status in Egypt and this could be renewed which suggested that she considered that it was a requirement of the rules that the appellant fled the country of habitual residence for having a well-founded fear of persecution. None of this had been raised at the hearing and in terms of fairness as this is not an issue raised previously this was a material error of law.
35. In a response, Mr Wain on the behalf of the respondent submitted that in relation to the ground of procedural unfairness and the raising of the issue of where the sponsor sought protection, the FtTJ referred to not having evidence on the basis of which the sponsor and his family were resettled ( see paragraph 16) and that the appellant’s representatives had sought to counter this by reference to the Syrian Vulnerable Persons Resettlement Scheme guidance which the FtTJ referred to at paragraph 16 and was taken into account by the FtTJ at paragraph 17.
36. Mr Wain referred to paragraph 18 and that the appellant’s representative at the hearing had argued that this was not a point raised by the respondent and was aware of this but did not apply for an adjournment for time to either provide evidence or to seek time to consider this issue. In the circumstances there was no unfairness.
37. As indicated to the parties at the hearing, I am satisfied that ground 2 is established. I set out my reasons for this below.
Conclusions on ground 2:
38. The President of the First-tier Tribunal confirmed in TC (PS compliance, "issues-based" reasoning) [2023] UKUT 164, [2023] Imm AR 1427 that the identification of 'the principal important controversial issues' leads to the kind of focussed and effective tribunal decision required, addressing those matters, and only those matters, which need to be decided and concentrating on the material bearing upon those issues. In this appeal the “principal controversial issues” were set out at between paragraphs 3- 5 of the decision, where the FtTJ set out the changes in the respondent’s case, the acceptance of there being a genuine and subsisting relationship but that “the respondent maintained that the appellant did not form a pre-flight relationship with the sponsor as the relationships formed whilst in Egypt which is not a country for which sponsor fled to seek protection in the UK” ( and see paragraph 5). At paragraph 12 set out that the issue - where the relationship was formed and whether this took place in the sponsor’s country of habitual residence for the purposes of the rules, specifically 4.1 (b) of Appendix FRP as set out in the ASA. The FtTJ made findings of fact on those issues at paragraphs 13 and 14 and as summarised above. However, the FtTJ went on to find that she had seen no evidence that the basis on which the sponsor and the family were resettled in the United Kingdom and having heard evidence from the sponsor set out at paragraph 15, reached the conclusion that she did not find that the sponsor had left Egypt for the purposes of seeking protection in the UK and as such could not be considered to have formed his relationship with the appellant pre-flight could not meet the rules.
39. Pausing there, this was not an issue raised in the decision letter or in the respondent’s review. Whilst it principally arose by the evidence given by the sponsor, it was an issue which related to the meaning and construction of paragraph 4.1(b) and what was meant by “ in order to seek protection”. When granting permission against her decision the FtTJ set out what had occurred at the hearing and that as at the date of the hearing the respondent’s concession which was made following the change in the rules. “However, it was instead argued that Egypt was not the sponsor’s previous country of habitual residence as he had been granted refugee status in Egypt so he was not fleeing that country to seek protection for the purposes of the rules”. There was therefore a change in the respondent’s position. I am satisfied that the FtTJ was correct to require the parties to outline the issues and that this was discussed at the start of the hearing. However, it is not clear whether the parties were to address the construction and meaning of the Rule rather than looking at this on a purely factual basis. The advocate before the FtT plainly attempted to deal with this issue on a factual basis by reference to the material available. Mr Wain submitted that the legal representative did not ask for an adjournment, however whilst that is correct, I accept the submission made by Ms Sanders that the FtTJ granted permission against her decision on the basis that proceeding may have placed the appellant at a disadvantage in the circumstances in which the change of direction and legal issues to be determined had occurred. I agree that it did as the FtTJ did not hear or resolve any substantive argument on the construction of the Rule or what it meant.
40. However as set out above, this would only be material if the appellant demonstrates that the FtTJ was wrong in her assessment of the construction of the Rule. This has been described as the” substantive ground” and upon which both parties have now been able to provide their respective submissions.
Ground 1: the “substantive ground”:
41. As to this ground of challenge, it is submitted that the FtTJ had erred in law by misapplying the requirements of the Rules, Ms Sanders submitted that the FtTJ was in error to require the appellant to have left Egypt because he feared persecution in Egypt and that this was not a requirement of the Rules. In this respect she placed reliance on the decision of AA (Marriage, Country of nationality) Somalia [2004] UKIAT 00031.
42. Ms Sanders relied upon the guidance in the bundle in support of her submissions. She submitted that in terms of eligibility the sponsor was someone who had come to the UK and resettled and had been provided with protection status via the Syrian scheme, and that the guidance confirmed that type of eligibility ( see Counsel’s note at paragraph 10). The FtTJ had noted that it was not disputed that the sponsor protection status (paragraph 15) and that he had resettled in the UK as a refugee (see paragraph 2).
43. Ms Sanders expressly relied upon the guidance where it set out “You do not need to consider the reasons why the sponsor left this country of habitual residence before they sought protection in the UK, but instead whether the applicant formed part of the family unit with their partner in a country of habitual residence before the sponsor sought protection in the UK”.
44. She submitted that on the factual findings made by the FtTJ the requirement were satisfied and that she should have allowed the appeal.
45. Mr Wain on behalf of the respondent submitted that the FtTJ was correct to construe the wording of the requirement of paragraph 4.1(b) in the way that she had done and that this was a correct interpretation of the Rules. In this respect he also relied upon the guidance. He referred the Tribunal to pages 118 of the guidance ( earlier guidance) and also p191 of the later 2025 guidance and that the FtTJ was correct to look at Egypt as this was the country of his habitual residence and this was country he left but was not seeking protection from that country. He submitted that was consistent with the spirit of the family reunion guidance at p191.
46. He further submitted that whilst Ms Sanders relied upon the decision in AA (as cited), a distinction could be drawn from that decision as it related to the previous rule paragraph 352A which does not have the same wording as paragraph FPR 4.1(b). He submitted that FRP 4.1(b) should be read in the spirit of the guidance and that the purpose of the rules is to reunite families who have been separated due to conflict in countries of habitual residence, and this did not apply on the facts of this case. Whilst he stated that he accepted the guidance said it was not necessary to give reasons why the sponsor left his country of habitual residence, but that it was still relevant to know that the person had not sought to leave Egypt due to persecution.
Conclusions on ground 1 “the substantive ground”:
47. FRP4.1(b) of the Immigration Rules, with reference to which the respondent has refused this application, states as follows:
Relationship requirements for a partner applying for Family Reunion FRP 4.1.
The applicant must: (a) be the partner of a person (P) who has protection status;
and
(b) have formed part of the family unit of P before P left the country of their habitual residence in order to seek protection; …
48. I am required to consider the construction of a Rule and not statute. In R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, Lord Dyson JSC, with whom the other members of the Supreme Court agreed, stated that the power to make the Rules was derived from the 1971 Act and its exercise is one of statutory power and not an exercise of the royal prerogative.
49. The 1971 Act contemplates the Rules to be informal rules. Lord Roskill observed in Alexander v Immigration Appeal Tribunal [1982] 1 WLR 1076, at [1:
"These rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed. The rules give guidance to the various officers concerned and contain statements of general policy regarding the operation of the relevant immigration legislation."
50. The question of how to construct the Rules was considered by the Supreme Court in Mahad (Ethiopia) v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48. At [10], Lord Brown referenced a passage from Lord Hoffman's judgment in Odelola:
"4. Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy."
51. Lord Brown said at [10]:
"10. ... The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy ..."
52. Lord Brown added in the same paragraph, when referencing a concession by counsel for the Secretary of State:
"10. ... the court's task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended ... that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State's intention to be discovered from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules."
53. Observing the two dicta cited above, Lord Briggs, with whom the other members of the Supreme Court agreed, said in R (Wang) v Secretary of State for the Home Department [2023] UKSC 21, [2023] 1 WLR 2125 at [31]:
"31. Neither of these dicta suggest that, apart possibly from a relaxation of strictness, the interpretation of the Immigration Rules involves any significant departure from the general principles of statutory construction. Lord Hoffmann's dictum states in terms that general principles of construction apply, so that interpretation should be contextual and purposive. Lord Brown's encouragement to apply sensibly rather than strictly the natural and ordinary meaning of the words is simply the consequence of keeping in mind the context and purpose of the Immigration Rules. More to the point, neither dictum is inconsistent with the principle enunciated by Ribeiro PJ [in Collector of Stamp Revenue v Arrowtown Assets Ltd [2003] HKCFA 52] and approved in [ Hurstwood Properties (A) Ltd v Rossendale BC [2021] UKSC 16, [2022] AC 690], which requires a purposive approach to construction and a realistic and unblinkered approach to the application of the relevant provisions to the facts."
54. The general principles of statutory construction therefore apply to the construction of the Rules.
55. Neither party has referred to the general interpretation provisions set out at paragraph 6.1 of the Immigration Rules. There is no definition of “country of their habitual residence” . There is also no definition of “protection“. A “ protection claim” is defined at paragraph 6.1 by reference to section 82 (2) (a) of the Nationality and Immigration and Asylum Act 2002 as a claim that removal of the person of the United Kingdom would breach the United Kingdom’s obligations under the refugee Convention or obligations to persons eligible for a grant of humanitarian protection. “Protection status” means refugee leave, refugee permission to stay, temporary refugee permission to stay, humanitarian protection and temporary humanitarian protection.
56. Appendix Family Reunion (Protection) states: “This Appendix applies to a partner or dependent child of the person who holds protection status in the UK.” Thus, in respect of FRP 4.1 (a) the appellant is the partner of a person, namely the sponsor, who has protection status as defined at paragraph 6.1. This was evidenced before the FtTJ in the documentary evidence at page 221 and p223 and that the sponsor was granted refugee leave.
57. Dealing with FRP 4.1(b), the factual findings made by the FtTJ and not challenged by the respondent is that the relationship between the appellant and the sponsor began whilst the appellant was in Syria and the sponsor was in Egypt and began in or about 2019. However, the FtTJ found that the relationship did not transition into a genuine subsisting relationship until February 2023 when they agreed to marry. The FtTJ found that this was an indication of their intention for a long-term subsisting relationship as is required under the Rules. The FtTJ also determined the issue of habitual residence. In this regard the respondent’s position as set out in the decision letter and paragraph 11 of the review, was that Syria was the sponsor’s country of habitual residence. The FtTJ found that Egypt was the sponsor’s country of habitual residence. The respondent has not sought to challenge that assessment.
58. Whilst the FtTJ found that the appellant had a genuine subsisting relationship formed with the sponsor before he left his country of habitual residence, the FtTJ found that the sponsor had not left his country of habitual residence in order to seek protection. The emphasis being placed on the part of the phrase “ in order to seek protection”.
59. Both parties made refence to the guidance.
60. Mr Wain relied upon the guidance Family Reunion ; for individuals with protection status in the UK” Version 10.00. He directed attention to p118 under the section “ definition of partner”.
61. It stated : “When assessing an application for entry clearance or permission to stay as a partner under this route, you must be mindful that those fleeing conflict or persecution may become separated from their families and may even lose contact for periods of time due to circumstances beyond their control. It is important to carefully consider all evidence available and any explanations for a lack of evidence to reach an informed decision.”
62. I do not think that provides any assistance in determining the meaning of the phrase in issue. This part of the guidance relates to whether the relationship is genuine or not.
63. Mr Wain also referred to p134 of the same guidance. This reads as follows:
“Post-flight partner :
Where an individual becomes the partner of a person with protection status in the UK after they fled their country of origin or place of habitual residence to seek protection, they may be eligible to apply for permission to stay on the basis of that relationship. The onus is on the applicant to demonstrate that they meet the requirements of the Immigration Rules”.
64. He submitted that this discussion of eligibility makes reference to a person fleeing their country of origin.
65. I do not see that this part of the guidance says anything more than to identify that applicants may be eligible for family reunion in 2 factual scenarios- where the sponsor has fled their country of origin or their place of habitual residence.
66. In his submissions Mr Wain also referred to p191 of the later guidance published in 2025. It reads as follows:
“Paragraph FRP 4.1. (b) makes clear that a partner, as defined above, must have formed part of the family unit with the sponsor (also termed as a ‘pre-flight’ relationship) before they left their country of habitual residence in order to seek protection in the UK. If the sponsor obtains protection status or settlement on a protection route in the UK, and the sponsor subsequently left the UK to form a family unit after they obtained this status in the UK, then this is a post-flight relationship. As such, there are alternative routes for this sponsor to bring their (post-flight) family to come to the UK on the basis of their Article 8 rights, such as Appendix FM, and would not meet the requirement of FRP 4.1. (b) of Appendix FRP. This is because the refugee family reunion route is intended to uphold the principle of family unity (for immediate family members) for individuals with protection status or settlement on a protection route in the UK whose family life has been disrupted due to conflict or persecution (pre-flight) in their country of habitual residence”.
67. Mr Wain submits that this is supportive of the FtTJ’s reasoning and that the purpose of the Refugee reunion route is to uphold the principle of family unity for immediate family members whose family life has been disrupted due to conflict in their country of habitual residence.
68. However, the sentence he relies upon should not be seen out of context with the earlier part of the paragraph and the necessity for those who are eligible to apply as those who form their relationship before the sponsor obtains protection status. I do not read that part of the guidance to read into the Rules a requirement that it is the place of habitual residence to be the place of persecution.
69. The guidance goes on to state :
“Whilst the intention of pre-flight under FRP 4.1. (b) should be followed in the spirit of the meaning, which is set out in the Appendix FRP, a distinction should be drawn between transit countries, through which the sponsor travelled through to reach the UK after having fled their country of habitual residence, with third countries which the sponsor has lived in for a considerable amount of time and has fled from in order to seek protection in the UK. A case-by-case consideration should be applied to determine the relationship was formed in a country of habitual residence (FRP 4.1. (b)), and the relationship was not formed in a transit country where the sponsor has stayed for a short period of time”.
70. Again, on the facts as they were the FtTJ found the relationship was formed in the country of habitual residence where the sponsor had lived for a lengthy period ( on his account in the witness statement since 2013) and the reference to this paragraph of the guidance does not provide support for the respondent’s argument.
71. As Ms Sanders submitted, the guidance goes on to state:
“You do not need to consider the reasons why the sponsor left this country of habitual residence before they sought protection in the UK, but instead whether the applicant formed part of the family unit with their partner in a country of habitual residence before the sponsor sought protection in the UK”.
72. In support of her submissions, Ms Sanders relies on the decision of AA( marriage, Country of Nationality) [2004] UKIAT 31 (“AA”). This is given a different citation as A v ECO Pretoria (Somalia) [2004] UKIAT 31. She submits that while AA was decided with reference to paragraph 352A of the Immigration Rules, which was in force at the time, it remains relevant in interpreting the replacement provisions within Appendix FR (Protection) and relies upon paragraph 34 of that decision:
“In many cases, the country of a person's former habitual residence, which he or she leaves in order to seek asylum, will be the country in which the person granted asylum in the United Kingdom, has a well-founded fear of persecution. If, however, the drafter of paragraph 352A had intended the reference to such a country in sub-paragraph (ii) to be so confined, it would have been an easy matter to have said so.”
73. Mr Wain on behalf of the respondent makes the point that the decision of AA concerns a different Immigration namely Paragraph 352A.
"352A.The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse of a refugee are that:
i) the applicant is married to a person granted asylum in the United Kingdom; and
ii) the marriage did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
iii) the applicant would not be excluded from protection by virtue of Article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
iv) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity".
74. The facts of that appeal can be summarised as follows. The appellant was a national of Somalia living in South Africa. The sponsor fled Somalia for Ethiopia in 1997. The sponsor stated that he had moved to Ethiopia from Somalia in 1991. The appellant told the Entry Clearance Officer that the sponsor arrived there in 1993. The appellant married the sponsor on 25 June 1999 in Ethiopia. The Tribunal recorded that given that the fact of the marriage had been accepted by the respondent in this case, they assumed that, from the date of the marriage in 1999 until 2000, the parties lived together where the sponsor had been residing prior to her marriage, namely, with the family in Ethiopia whom she knew. The sponsor said that she felt that she did not want to live in Ethiopia because she had nothing there. Accordingly, her husband collected some money and made arrangements with an agent for the sponsor to be taken abroad. There was not enough money for to travel together. The sponsor claimed, and was granted, asylum in the United Kingdom.
75. On the facts the appellant married her husband in Ethiopia before traveling onwards to the United Kingdom and was granted refugee status. An application for entry clearance as the spouse of a refugee was made and refused on the basis that the marriage took place post-flight. The judge found that for the purposes of paragraph 352A, the words "country of habitual residence" in sub-paragraph (ii) could only mean "the country from which the asylum seeker was fleeing persecution in order to seek asylum." However, having considered the purpose underlying the rule, the Upper Tribunal concluded that there was no justification for construing the provision in such a narrow way ( see paragraph 29).
76. The essential question was whether, on the facts, the appellant has satisfied the requirement of paragraph 352A(ii) of the Immigration Rules, that his marriage to the sponsor did not take place after "the person granted asylum" [i.e. the sponsor] "left the country of [her] former habitual residence in order to seek asylum".
77. The Tribunal made the observation that in many cases, the country of habitual residence which they leave to seek asylum will be the same country from which they have a well-founded fear of persecution. However, if the person drafting the rules had intended the reference country to be confined to the country from which the person sought refuge, that would have been easy to say that.
“34. In many cases, the country of a person's former habitual residence, which he or she leaves in order to seek asylum, will be the country in which the person granted asylum in the United Kingdom, has a well-founded fear of persecution. If, however, the drafter of paragraph 352A had intended the reference to such a country in sub-paragraph (ii) to be so confined, it would have been an easy matter to have said so.
78. And at paragraphs 38-39 stated :
“38.The uncontested evidence in this case is that the sponsor lived in Ethiopia between 1997 and 2000. She lived in the household of a Somali family. In 1999, she married the appellant. He ran a business, trading in goods between Somalia and Ethiopia. Although life in Ethiopia was plainly difficult, there is no suggestion that the Ethiopian authorities regarded the sponsor's presence in that country as unauthorised. In her answer to question 45 of the Home Office interview, "Did you have any problems with the Ethiopian authorities?" She replied, "No. They don't help you but they don't give you any problems either". Her comment about the Ethiopian government not accepting people from Somalia appears to have been in the context of explaining why she took no steps to be formally recognised as a refugee there.

39.Against this factual background, the Tribunal finds that the sponsor was habitually resident in Ethiopia. She left that country in 2000, in order to seek asylum in the United Kingdom. On 30 July 2000, she was granted that status. The marriage in 1999 preceded her departure from Ethiopia. Accordingly, the requirements in paragraph 352A(ii) are met.”
79. The terminology has altered from “ the marriage did not take place after the person granted asylum left the county of his former habitual residence in order to seek asylum” to that set out in FRP 4.1(b) “have formed part of the family unit of P before P left the country of their habitual residence in order to seek protection”.
80. Whilst the terminology of the Rules have changed as Mr Wain has submitted, the Tribunal in the above decision considered the same question posed to this Tribunal and that the relevant parts of the sentences are “ in order to seek asylum “ and “ in order to seek protection”. In my view they both have the same meaning in substance and reflect the change of language in the legislation from “ asylum” to “ protection”. Both the old Rule and the new Rule require that “the marriage” or having formed “part of the family unit” must have taken place before the person ( i.e. the person granted asylum) left their country of habitual residence.
81. Having considered the having considered the Rules and the guidance, I have reached the conclusion that the meaning and that the use of the word “protection” in the phrase “left their country of habitual residence in order to seek protection” means a claim for protection or protection status in the United Kingdom. As the tribunal set out in the decision of AA, if the rule had intended the reference country to be confined to the country from which the person sought refuge (in this case Syria) the Rule would have said so.
82. I also draw from the language used in the Rule that the phrase used is “country of their habitual residence” and not “country of nationality” or even “country from where the person sought protection”. Had that language being used in the Rule, it would in my view demonstrate a clear intention to limit family reunion to those who formed part of the family unit in the country from which they had been recognised as a refugee , in this appeal that would mean Syria.
83. In terms of the grounds, the applicant relies upon the Syrian Vulnerable Persons Resettlement Scheme (“VPRS”) as the way the sponsor was granted settlement in the UK along with his family members. The history of the sponsor and the family members was that they had fled Syria in or about 2013 and had resided in Egypt where they were waiting for resettlement under the scheme. As the grounds and the Counsel’s note set out, such schemes, including the VPRS and its later successor the UKRS, work closely with the UNHCR to identify those at risk and prioritises those are eligible for resettlement. They have as an organisation developed rigorous criteria. The scheme was delayed as a result of Covid, which was a matter referred to by the sponsor in his evidence before the FtTJ. Thus, the delay between family being granted resettlement in the UK until 2023 is consistent with that evidence. It was not disputed that the sponsor was granted refugee leave in accordance with the evidence set out in the bundle at pages 221 and 225.
84. In conclusion I am satisfied that the words used in their ordinary meaning, and as set out above supports the construction as submitted on behalf of the appellant. Thus, the appellant meets the requirements of paragraph 4.1(b) of Appendix Family Reunion (Protection) under the Immigration Rules. Having reached that conclusion, there is a material error of law in the decision of the as the grounds contend. The decision of the FtTJ is therefore set aside. As the applicant can satisfy the immigration rules that is positively determinative of the appeal ( see TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109).
85. It is therefore remade as follows; the appeal is allowed on human rights grounds.
Notice of Decision:
The decision of the FtTJ involved the making of a material error of law and the decision of the FtTJ is set aside and re-made as follows: the appeal is allowed on human rights grounds.

1 October 2026
Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds