Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003982

First-tier Tribunal No: HU/54173/2024
LH/06913/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of January 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

NAFTALI ZVI AZIENBACH
(NO ANONYMITY ORDER MADE)
Appellant
and

The Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr N Leskin, senior solicitor, Birnberg Peirce Ltd
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 26 January 2026 (via CVP)

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The Secretary of State has been granted permission to appeal the decision of the First-tier Tribunal allowing the appellant’s human rights appeal following a hearing which took place in the virtual region on 23 July 2025.
2. However, for ease of reference hereafter the parties will be referred to as they were before the First-tier Tribunal.
3. Permission to appeal was granted by the First-tier Tribunal on 28 August 2025.
Anonymity
4. The First-tier Tribunal did not issue an anonymity order. Considering the principle of open justice, there is no reason to make an order, so none is made.
Factual Background
5. The appellant is a national of Israel now aged twenty-two. During a visit to the United Kingdom, he and his partner underwent an arranged Jewish orthodox marriage ceremony which is not legally recognised in the United Kingdom. The applicant ‘s immigration history amounts to entering the United Kingdom as a visitor, having been granted leave to enter for 6 months and leaving within that 6-month period before re-entering and being granted another 6 months leave to enter. The appellant’s child was born during October 2023. The appellant returned to Israel, on 5 February 2024, to make an application for entry clearance to the United Kingdom under Appendix FM to the Immigration Rules as the parent of a British citizen child under the age of 18.
6. That application was refused by way of a decision letter dated 3 April 2024. The reasons provided were that the appellant did not meet all the eligibility requirements of Section E-ECPT of Appendix FM. Specifically, the application was refused under E-ECPT.2.3. (b) (ii) of because the other parent of the child must not be the partner of the applicant. The respondent noted that in his application the appellant had stated that he was in a relationship with his child’s mother, that a religious marriage ceremony had taken place between them in July 2022 and that they had lived together as a couple since then. In addition, the respondent did not accept that the financial requirement had been met because the sponsor’s income came to less than the family would have been entitled to in welfare benefits. The Secretary of State was not satisfied that refusal of entry would lead to unjustifiably harsh consequences for any member of the family and therefore did not accept that there were any exceptional circumstances.
7. In the Respondent’s Review dated 8 November 2024, the Secretary of State continued to rely in full upon the decision letter of 3 April 2024.
The decision of the First-tier Tribunal
8. In the First-tier Tribunal decision, the judge recorded that the appellant’s representative conceded that the appellant could not meet the eligibility financial requirement because he was relying on the income of a third party, which was not permitted when applying for entry as a parent. The judge recorded a further concession on behalf of the appellant that unjustifiably harsh consequences had to relate to the appellant and the child but not to his partner as she was not, at the date of the application, a partner or family member as defined under the Rules. The judge did not accept that there were any ‘unduly harsh consequences’ [16] and concluded that the requirements of the Rules were unmet at the date of the application.
9. The appeal was allowed on the basis that the decision under appeal was disproportionate in that the impact on the family of separation amounted to unjustifiably harsh consequences.
The appeal to the Upper Tribunal
10. The grounds of appeal can be summarised as follows
Ground one – the judge materially misdirected themselves in failing to adequately take account of the considerations set out in section 117B of the Nationality, Immigration and Asylum Act 2002.
Ground two – failing to take account of and resolve material conflicts in the evidence, with reference to the judge’s finding that the family would face ‘potentially indefinite separation.’
Ground three – a failure to give any reasons or any adequate reasons in relation the finding of ‘potentially indefinite separation.’
11. Permission to appeal was granted on the basis sought.
The error of law hearing
12. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the Secretary of State containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal. Those representing the appellant submitted an additional appellant’s bundle which was missing from the consolidated bundle.
13. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
14. At the end of the hearing, the parties were informed that there was no material error of law in the decision of the First-tier Tribunal. Reasons are provided below.
Discussion
Ground 1 – Making a material misdirection in law on any material matter
15. The main point raised under this ground is that the judge failed to consider the considerations listed in section 117B of the Nationality, Immigration and Asylum Act 2002, particularly, the financial independence consideration in section 117B (3) and the little weight provision of section 117B (5).
16. At [21], the judge states that he has had regard to the considerations in section 117B. There is no reason to doubt that to be the case. The judge, without citing the section, specifically refers to, section 117B (1) and records that the maintenance of effective immigration control is in the public interest. The judge also reiterates his earlier finding that the appellant is unable to meet the requirements of the Immigration Rules.
17. The judge did not directly refer to section 117B (2). The judge would have been aware from the decision under challenge that the appellant met the English language requirement of the Rules, as well as the fact that this was not an issue which was disputed. There is, however, no reason to find that this experienced judge was not cognisant of this section, which was a neutral factor in the assessment.
18. The same can be said of section 117B (3). While the judge did not cite this section, he was acutely aware of the appellant’s financial position because of the central role this issue had played in the consideration under the Immigration Rules. At [13] the judge remarks that he found the appellant and his partner to be ‘entirely credible witnesses.’ There is no challenge to that finding. It is clear from the submissions that the reason the appellant could not meet the eligibility financial requirement was not because of a lack of financial independence but because he was relying on the income of a third party to show that he could maintain and accommodate himself, which the judge records at [14] and [19 (ii)]. The evidence before the judge was that while the partner was in receipt of some benefits, she also worked as a teacher as well as being the carer for a relative with special needs. The appellant’s role was to look after their child so that his partner could work. He was financially dependent upon his partner, but his presence had not caused any additional dependence upon the welfare state. Therefore, on the evidence before the judge, this consideration was a further neutral factor.
19. The judge applied the little weight provisions of section 117B (4) (a) as well as 117B (5) to the appellant’s private life at [21], thus demonstrating his awareness of the fact that the appellant’s stay in the United Kingdom was precarious. There is rightly no mention made of section 117B (4)(b), because the appellant and his partner underwent their marriage ceremony and established their relationship while he was lawfully present in the United Kingdom as a visitor as the stamps in his passport and his witness statement dated 14 July 2025 attest.
20. Lastly, the judge made no specific mention of section 117B (6) nonetheless, it is clear from the reasons that the appeal was allowed that the judge was mindful of this consideration. There was no dispute that the appellant had a genuine and subsisting relationship with his qualifying (British) child. Although this is an entry clearance case, the appellant is in the United Kingdom and if he fails on appeal he will be expected to leave. In the Respondent’s Review, it was argued that it would not be ‘unduly harsh’ for his child to leave the United Kingdom and live elsewhere or remain here without him.
21. Mr Ojo argued that the judge did not consider that the appellant had been travelling in and out of the United Kingdom. There is no reason to suspect that the judge was unaware of this given that it was set out in the visa application form, copy of passport stamps and reference was made to this matter in the witness statements.
22. Mr Ojo argued that the public interest was further strengthened owing to the judge’s reference at [19] to there being no evidence that appellant and sponsor could not register their United Kingdom conducted religious marriage in Israel prior to applying for entry clearance. I accept Mr Leskin’s submission that registration of the British orthodox ceremony in Israel would not have the effect of turning it into a recognised union in the United Kingdom. This was the difficulty the appellant was in, because his marriage is not recognised in the United Kingdom and at the time he sought entry clearance his relationship had not been subsisting long enough to count as a partnership under the Rules. Indeed, at [19] the judge accepts that the appellant is ‘in an extremely invidious position.’ On the contrary, it was a matter in the appellant’s favour that he returned to Israel and sought entry clearance.
23. The considerations in 117B as well as other relevant matters informed the judge’s proportionality assessment. The succinct but adequate reasons are set out at [22-23] of the decision. They include that the appellant is a primary carer of his child, the best interests of their child, the emotional impact of separation on the family members, the potential for indefinite separation, that family life cannot be conducted elsewhere as the partner cares for a related child with mental health and developmental concerns, the best interests of that child, cultural expectations for the couple to be living together, the partner would lose her job as well as her own lack of familiarity with Israel’s ‘norms, culture or language.’
24. In considering whether the absence of direct mention or citation of some of the individual considerations in section 117B amounts to a material error of law, I have been guided by KM [2021] EWCA Civ 693:
Approach of appeal court
77. I bear in mind the following well-established principles as to the approach of the Court of Appeal when considering a decision of a specialist tribunal such as the UT:
(1) First, the UT is an expert tribunal and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently (per Lady Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 at [30]).
(2) Second, the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts (per Lord Dyson in MA (Somalia) v SSHD [2010] UKSC 49 at [45]).
(3) Third, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account (per Lord Dyson in MA (Somalia) at [45]).
(4) Fourth, experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so (per Popplewell J in AA (Nigeria) v SSHD [2020] 1296 at [34]).
(5) Fifth, judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined and the appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it (per Lord Hope in R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625.
25. Furthermore at [11] of the decision, the judge states that he has not dealt with ‘each and every point raised’ by the parties but will ‘simply give sufficient reasons to justify’ his decision, applying R (Iran) [2005] EWCA Civ 982.
26. While it might have been preferable had the judge mechanically worked his way through the considerations in section 117B, it has not been established that he failed to consider any of those matters or otherwise made a material error of law under this ground. If I am wrong in the judge’s assessment of the section 117B considerations, I am satisfied that without this error the decision would inevitably have been the same for the reasons given by the judge at [21-22].
Ground 2 – Failing to take into account and/or resolve conflicts of fact or opinion on material matters
27. The respondent argues that the judge did not resolve the issue of the appellant returning to Israel to seek appropriate entry clearance. In fairness, Mr Ojo acknowledged that this is precisely what appellant had already done and that this had led to the instant appeal. Nonetheless, he argued that it should have been assessed. The judge did engage with this issue, at [19 (iii)] and evidence was before the judge as to the visa processing times. Contrary to Mr Ojo’s submission that the judge did not acknowledge that the appellant could now meet the relationship eligibility requirement of the Rules, owing to the passage of time, the judge did just that, also at [19 (iii)].
Ground 3 – Failing to give reasons or any adequate reasons
28. It is contended on behalf of the respondent that the judge failed to give any or any adequate reasons for concluding that the appellant and his partner face ‘potentially indefinite separation.’ The evidence underpinning that finding can be found at [19 (iii)], where the judge concluded that as at the time of the hearing the appellant would not be able to meet the eligibility financial requirements owing to a change in his partner’s income as she was no longer in receipt of carer’s allowance. The judge was, as he said at [20] satisfied that the appellant ‘potentially’ would not be able to return to the UK for some time, ‘if at all.’ If the appellant could not meet the Rules, which the judge accepted was the case at the time of the hearing, it was not perverse for the judge to consider that his return to the United Kingdom might take some time or might not take place. The judge did not say this was a certainty but a potentiality and it was far from the only matter considered in the proportionality assessment.
29. While the findings of the judge could be viewed as generous and another judge might have made a different decision, the judge’s findings were adequate and ones which were open to him on the evidence.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal shall stand.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 January 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email