Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003987

First-tier Tribunal No: HU/65027/2024
LH/00727/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th February 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ZA
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr M Parvar, Senior Home Office Presenting Officer
For the Respondent: Mr M Osmani, Legal Representative, instructed by Times TBS

Heard at Field House on 29 January 2026

Order Regarding Anonymity

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

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

DECISION AND REASONS

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Hendry promulgated on 8 July 2025 allowing ZA’s appeal against a decision to refuse him a visit visa.

2. While it is the Secretary of State who is the appellant in this matter, for consistency, I will refer to the parties as they were before the First-tier Tribunal. Therefore, the Secretary of State will be referred to as the respondent and ZA as the appellant.

Anonymity

3. While no anonymity order was made by the First-tier Tribunal, I have decided to make one. That is because while this appeal concerns the refusal of a visit visa, the appellant asserts that he is living in precarious conditions in Oman and faces removal to his home country, Afghanistan, where he says he would be at risk from the Taliban as a former member of the special forces. Therefore, while I attach significant weight to the public interest in open justice, in the present case I am satisfied that the balance falls in favour of protecting the appellant’s identity.

Background

4. The appellant is a national of Afghanistan. He claims to be a former member of the country’s special forces and states that he has been residing in Oman, having fled there in early 2024. On 26 September 2024, he applied for a visit visa to enter the United Kingdom in order to see his sister and her family. In both his visa application form and accompanying representations dated 9 October 2024, submitted by his legal representatives, it was asserted that his application engaged Article 8 of the European Convention on Human Rights (ECHR).

5. It was submitted on the appellant’s behalf that his Omani visa was due to expire and that he could not return to Afghanistan because of the risk he faced from the Taliban. The letter further stated that he had no significant source of income, that his living conditions in Oman were precarious, and that the threat of deportation to Afghanistan had negatively affected his mental health. In addition, it was contended that he enjoyed a strong family life with his sister in the United Kingdom, on whom he was financially and emotionally dependent, and that his exclusion would constitute a breach of his Article 8 rights. Despite the assertions regarding the precariousness of his status in Oman and his inability to return to Afghanistan, the letter nevertheless maintained that the appellant’s genuine intention was to stay in the United Kingdom only temporarily to visit his family, and that he fully understood and respected the requirement to leave upon the expiry of any visa granted.

The respondent’s decision

6. In her decision dated 5 November 2024, the respondent refused the appellant’s application for a visa under Appendix V: Visitor of the Immigration Rules on the basis that she was not satisfied that he intended to leave the United Kingdom at the end of his visit.

7. With regards to the human rights claim, the respondent expressly decided not to consider it at all:

“• As per Home Office guidance in ‘Considering human rights claims in visit applications Version 1.0’, the only relationships that may engage Article 8 in visit applications are as follows:
○ spouse (or other life partner)
○ parent (where the applicant is [a] minor child)
○ minor child

As you are not seeking to join a close relative defined above, who is sponsoring you to come to the UK, an application for a visit visa would not normally engage Article 8. Therefore, this decision to refuse your visa application is not a refusal of a human rights claim and there is no right of appeal against this refusal.” [Underlining added]

The decision of the First-tier Tribunal

8. Despite not having been granted a right of appeal, the appellant nevertheless commenced proceedings before the First-tier Tribunal. At a case management hearing that took place on 4 March 2025, First-tier Tribunal Judge Singer considered that the First-tier Tribunal did have jurisdiction to hear the appeal. He gave the following reasons:

“There is a right of appeal as there is a sufficient evidential platform for finding that Article 8 ECHR is engaged, and Article 8 ECHR was clearly argued in the application form and covering letter and considered to some degree within the refusal letter. Article 8 ECHR is not a “new matter”, applying the principles in Ayoola (previously considered matters) [2024] UKUT 00143 (IAC).”

9. The appeal accordingly proceeded to a full hearing on 23 June 2025 before First‑tier Tribunal Judge Hendry (“the judge”). She accepted that the Tribunal had jurisdiction to determine the human rights appeal: see [41]. She further found that the appellant enjoyed family life, for the purposes of Article 8(1), with his sister and brother‑in‑law in the United Kingdom (see [55] and [73]), relying on the financial and emotional support they provided to him and on his vulnerable circumstances in Oman. The judge then concluded that the refusal of entry clearance would be disproportionate under Article 8(2) when weighed against the public interest considerations. She found that the refusal would result in “unjustifiably harsh consequences for the appellant, which would effectively result in the appellant and sponsors being unable to enjoy any significant family life together”: see [75].

The appeal to the Upper Tribunal

10. Although he considered Grounds 1 and 2 to be unarguable, permission to appeal was granted on all six grounds by First-tier Tribunal Judge Stevenson on 25 August 2025. I summarise the six grounds below:

• Ground 1: It is argued that the First‑tier Tribunal lacked jurisdiction because the entry clearance decision did not amount to a refusal of a human rights claim within the meaning of s.82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), and the judge therefore acted without jurisdiction.

• Ground 2: The judge is said to have erred in law in finding that family life existed between the appellant and his sister, by failing properly to apply the principles in Kumari v Netherlands 44051/20, 10 December 2024, and by placing undue reliance on regular contact and financial support despite the parties having lived independent lives for many years.

• Ground 3: It is contended that the judge failed to give proper weight to the precarious nature of any family life relied upon, and did not adequately reflect this precariousness, or the strong public interest in immigration control, in the proportionality assessment.

• Ground 4: The judge is said to have given determinative or excessive weight to the appellant’s personal circumstances in Oman, which were immaterial to the assessment of interference with the sponsor’s family life under Article 8, and to have impermissibly strayed into considerations more properly relevant to Article 3 or private life.

• Ground 5: It is argued that the judge erred in law by taking into account the Article 8 rights of the appellant himself, who is outside the United Kingdom and its territorial jurisdiction, rather than confining the analysis to the Article 8 family life rights of the UK‑based sponsor.

• Ground 6: The judge is said to have erred by attaching positive weight to speculative matters, namely the appellant’s potential success under the ARAP scheme and the fact that he sought to enter the United Kingdom lawfully, and by failing adequately to address relevant public‑interest considerations under s.117B of the 2002 Act.
The hearing
11. I heard submissions from both advocates, which are recorded in the record of proceedings, and, at the conclusion of the hearing, reserved my decision.

Documents

12. In reaching my decision, I have had regard to the following documents: the respondent’s 961‑page consolidated bundle; the appellant’s 114‑page subjective bundle from the First‑tier Tribunal proceedings; the appellant’s Rule 24 response dated 10 September 2025; and the appellant’s skeleton argument dated 18 December 2025.

The rule 15(2A) application

13. I also had before me an application made by the appellant under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 seeking permission to rely on evidence that had not been before the First‑tier Tribunal, namely a letter from the GP of the appellant’s sister dated 15 December 2025 concerning her mental health. Although Mr Osmani referred me to this document during the hearing, it had no bearing on the grounds of appeal advanced by the respondent. As Mr Parvar noted, the rule 15(2A) application stated that the GP’s letter was filed in support of the appellant’s request for the error of law hearing to be expedited, which was now academic. In these circumstances, I refused Mr Osmani’s request to rely on the GP’s letter at the error of law stage and explained that it would be more appropriate to consider such an application if the Upper Tribunal were to proceed to a remaking hearing.

Discussion

Ground 1: Jurisdiction

14. There is no dispute that the appellant advanced a human rights claim, within the meaning of s.113 of the 2002 Act, alongside his visit visa application. The question is whether the judge was entitled to conclude that the respondent had “decided to refuse” that human rights claim for the purposes of s.82(1)(b).1

15. As explained above, First-tier Tribunal Singer accepted jurisdiction to hear the appeal at a case management hearing. At paragraph [41] of her decision, the judge returned to the issue. She noted that the impugned decision did not specifically address the appellant’s Article 8 claim, but considered that she nonetheless had jurisdiction to determine the human rights appeal for two reasons: first, because the respondent had addressed Article 8 in the Review dated 4 April 2025; and second, by relying on Ayoola.

16. However, for the following reasons, both judges were wrong to conclude that the First-tier Tribunal had jurisdiction.

17. At the hearing before me, Mr Osmani maintained that the judge was entitled to find that the Review’s engagement with the appellant’s Article 8 claim conferred jurisdiction on the Tribunal. I reject that submission. The Review expressly stated at paragraph 6 that the grounds set out in the refusal notice were maintained. That necessarily included the assertion that the appellant’s human rights claim had not been considered and that the decision did not attract a right of appeal. While it is correct that the Review went on to make submissions on Article 8, contending that it was not engaged, this was required only to address the possibility that the Tribunal might nevertheless accept jurisdiction and the respondent would then need to defend the matter substantively.

18. Moreover, a Review is a document produced solely within the statutory appeal process, for the purpose of responding to the appellant’s skeleton argument and evidence: see paragraph 7.11 of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal, dated 1 November 2024. Its function is to enable the respondent to reconsider whether to maintain the decision under appeal and, if so, to set out the respondent’s position on the grounds of appeal and, where possible, narrow the issues. It is not itself an appealable decision and therefore cannot amount to a refusal of a human rights claim giving rise to a right of appeal under s.82(1)(b).

19. Mr Osmani also submitted that both judges were entitled to rely on Ayoola. However, I am satisfied that they were wrong to do so.

20. First, Ayoola concerned the circumstances in which submissions relied on by an appellant in an immigration appeal amount to a “new matter” which may be considered by the Tribunal only with the Secretary of State’s consent. At paragraph [31], the Upper Tribunal (UTJ Smith and UTJ Stephen Smith) held that where an issue is clearly raised in an application, the respondent will be taken to have “considered” it even if the resulting decision is silent on the point. That conclusion, however, was reached specifically in the context of regulation 9(b) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. Under those Regulations, a “new matter” is defined as something “the Secretary of State has not previously considered”, and the issue arises only once the Tribunal already has jurisdiction to determine the appeal. The principle therefore does not logically extend to s.82(1) of the 2002 Act, which is framed differently. Section 82(1)(b) does not ask whether the Secretary of State has “considered” a human rights claim, but whether she has “decided to refuse” such a claim. The circumstances in Ayoola were therefore materially distinct.

21. Second, in Ajmol & Hooi (new matter – “considered” – Reg 9(6)(b)) [2025] UKUT 00379 (IAC), a differently constituted panel of the Upper Tribunal (Sheldon J, UTJ McWilliam and UTJ Frances) held that Ayoola had been wrongly decided and should not be followed. Again addressing the meaning of “considered” for the purpose of identifying a “new matter”, the panel concluded that the term must be understood as requiring the Secretary of State to have given deliberate thought to the issue within the context of the decision under appeal.

22. Third, both First‑tier Tribunal judges overlooked the correct authority: MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. There, the Court of Appeal held that where an application under the Immigration Rules does not inherently depend on a person’s human rights, the Secretary of State may lawfully refuse the application without refusing any human rights claim raised alongside it, and may instead require the applicant to make a separate human rights claim. In such circumstances, there is no decision refusing a human rights claim and therefore no statutory right of appeal under s.82(1)(b): see [42]–[46]. That is precisely the situation here. A visit visa application does not inherently depend on the applicant’s human rights. Appendix V: Visitor requires the decision‑maker to consider, among other matters, whether the applicant is a genuine visitor who intends to leave the United Kingdom at the end of their stay. In these circumstances, the First‑tier Tribunal should have attached greater weight to the fact that the respondent expressly declined to consider the appellant’s human rights claim, in accordance with her guidance Considering human rights claims in visit applications.

23. I address one final point raised by Mr Osmani during the hearing. He contended that the respondent had engaged with the human rights claim because, in the second bullet point of her decision, she stated:

“I have considered the personal importance of this proposed trip and the circumstances surrounding your application including the sponsor statement, along with the documentation and written submissions you have provided. However, I am not satisfied on the balance of probabilities that these outweigh my concerns when considering your application against the relevant requirements of the Immigration Rules.”

24. Mr Osmani argued that because the statements and submissions addressed the appellant’s human rights claim, the respondent must have considered it. This was not the reasoning of the judge below and it was not advanced in the Rule 24 response. In any event, I reject that interpretation. Whatever the statements and submissions contained, the quoted passage clearly relates to the assessment of the application under the Visitor Rules. Moreover, the decision must be read as a whole, including the later section in which the respondent expressly declines to consider the human rights claim.

25.  If the appellant considered that the respondent had erred by failing to consider his human rights claim, the appropriate remedy would have been to seek judicial review of that omission. As matters stand, however, I am satisfied that the First‑tier Tribunal lacked jurisdiction to entertain the appeal.

26. The respondent’s appeal therefore succeeds on Ground 1. Although the remaining grounds are now academic, both parties nevertheless invited me to make findings on them, and I will do so briefly.

Ground 2: Whether the appellant and the sponsor enjoyed family life for the purpose of Article 8(1)

27. In IA & Others v Secretary of State for the Home Department [2025] EWCA Civ 1516, the Court of Appeal clarified the test for establishing the existence of family life for the purposes of Article 8(1) at [113]:

“… "family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate "additional elements of dependence, involving more than the normal emotional ties"".”

28. As in the present case, IA, who was a Palestinian living in Gaza with his wife and children, argued that the decision to refuse them entry to the United Kingdom to join their sponsor, IA’s brother, would breach their right to a family life under Article 8. The Court of Appeal held that the Upper Tribunal had made a material error of law in applying the test for establishing family life between adult siblings. In remaking the decision, the Court accepted that IA and his sponsor had restored close personal and emotional ties since the start of the Gaza war, but it rejected the claim that their relationship involved additional elements of dependence. In reaching that finding, the Court took into account that IA and his family could continue to live in Gaza, that they managed to survive without any long-term support from the sponsor for 17 years, and that they were not totally dependent on him at the time of the proceedings. The Court also took into account that the sponsor sent the family money when he could, he provided emotional support in their telephone calls, and that the sponsor’s PTSD would deteriorate if the family could not leave Gaza.

29. As Mr Parvar submitted, the facts of the present case are similar. The appellant and his sister have not lived together since the sister came to the United Kingdom in 2005, which is longer than the separation of the appellants and their sponsor in IA. Since fleeing Afghanistan, the appellant claims to receive emotional and financial support from his sponsors in the United Kingdom; they are worried about his predicament and wish him to enter this country; and that the worry caused to the appellant’s sister has had an adverse effect on her mental health.

30. I am satisfied that at [45]-[48], the judge properly directed herself to the correct legal test. At [52], the judge found that the sponsor has no means of support in Oman other than the money that his sponsors sent to him. The position, therefore, was different to that of the family in IA, who did not depend on the occasional money of their sponsor to survive. The judge also accepted at [55] that there was almost daily contact between the appellant and his sister, and that she provided emotional support to him. The judge also took into account the vulnerable position of the appellant (in terms of his precarious status in Oman and the risk posed to him in Afghanistan) as a factor that had strengthened the bond between the siblings: ibid. That too distinguishes the case from IA, where the Court of Appeal found that the family could continue to live in Gaza.

31. On careful consideration, I am satisfied the judge was rationally entitled to decide that there were additional elements of dependence in the case that went beyond normal emotional ties between siblings. The judge’s finding that the appellant and his brother-in-law enjoyed family life for the purposes of Article 8(1) is, however, insufficiently reasoned.

Grounds 3–6: Assessment of proportionality

32. While I am satisfied that the judge was entitled to find that Article 8(1) was engaged in respect of the appellant and his sister, I conclude that she erred in her assessment of proportionality under Article 8(2).

33. First, the appellant and his sister have not lived together since 2005. Although the judge did not expressly state that family life was only resumed when the appellant fled Afghanistan for Oman and his sister began supporting him, that is plainly the necessary inference. Thus, there would have been no Article 8(1) family life in existence between 2005 and some point in 2024. The judge should therefore have addressed, as part of the proportionality assessment, the precariousness of this recently re‑established family life, having regard to “the circumstances in which it had come into existence, the type of family life that was concerned, the length of time it existed and its likely future development”: IA at [151]. No such analysis was undertaken.

34. Second, as the Court of Appeal explained in IA at [141]–[143], although family life is unitary, where a party is outside the jurisdiction of the United Kingdom the central focus of the proportionality assessment must be on the sponsor. It is apparent from reading [61]–[66] and [70] that the judge concentrated primarily on the appellant’s circumstances, particularly his unlawful presence in Oman and the risk he would face if returned to Afghanistan. Those matters became the decisive factors in the appeal. By directing too much attention to the risk to the appellant’s life arising from conditions in Afghanistan, the judge fell into the same error as the Upper Tribunal in IA: see [155], [157] and [161] of the Court of Appeal’s judgment.

35. Third, as the respondent correctly submits, the judge took into account immaterial considerations when balancing the proportionality scales:

a. At [70(iii)], the judge referred to the possibility that the appellant “may ultimately succeed in his application under the ARAP scheme”. However, that outcome remains uncertain and could equally result in refusal. In these circumstances, the potential success of the ARAP application did not assist the proportionality assessment, particularly given that the primary focus should have been on the sponsor.

b. At [70(iv)] the judge placed weight on the fact that the appellant had attempted to enter the United Kingdom lawfully rather than unlawfully. That is no more than what is expected of any foreign national and, at best, is a neutral factor. Furthermore, it pertains to the appellant and not the sponsor’s circumstances.

c. At [70(v)] the judge considered that the appellant was separated from his family in Afghanistan and faced significant obstacles to enjoying family life with them there. However, neither the appellant in Oman nor his family in Afghanistan are within the jurisdiction of the ECHR, and therefore they have no protected family life under Article 8. The proper focus should have been on the sponsor’s family life, not the family life between the appellant and his relatives abroad: see IA at [142].

36. I am also satisfied that the judge failed to consider whether the appellant is able to speak English for the purposes of s.117B(2) of the 2002 Act. While Mr Osmani submitted that the appellant likely speaks English if he served as a special forces operative working closely with British personnel, that submission is speculative. The appellant appears to have held a low rank (his ARAP application simply describes his role as “soldier”: see his First-tier Tribunal bundle at page 94), and there is no reason to believe that English was required for that role. Further, in his visa application form he stated that any interview should be conducted in Pashtu or Dari rather than English (see page 907 of the consolidated bundle). I also accept the respondent’s submission that the judge’s finding at [73], that the appellant could be supported by his sponsors while in the United Kingdom, falls short of the required assessment under s.117B(3) as to whether he would be financially independent, particularly given the lack of findings as to the sponsors’ available funds.

37. For these reasons, even had I concluded that the First‑tier Tribunal had jurisdiction, the respondent’s appeal would in any event have succeeded on Grounds 3 to 6.

Notice of Decision

The Secretary of State’s appeal is allowed.

The decision of Judge Hendry is set aside on the basis that the First‑tier Tribunal had no jurisdiction to determine the appeal.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4th February 2026