Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No:
UI-2025-004056, UI-2025-004057
UI-2025-004058, UI-2025-004059
UI-2025-004060, UI-2025-004061
UI-2025-004062, UI-2025-004063

First-tier Tribunal No:
HU/51756/2024, HU/51760/2024
HU/51764/2024, HU/51765/2024
HU/51768/2024, HU/51770/2024
HU/51771/2024, HU/51773/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th April 2026

Before

UPPER TRIBUNAL JUDGE OWENS

Between

MSA
FA (2)
TA (3)
WA (4)
JA (5)
SWA (6)
HA (7)
SAL (8)
(ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Ms Doerr, Counsel instructed by BHT Sussex Immigration Service
For the Respondent: Mr Nappey, Senior Presenting Officer

Heard at Field House on 23 December 2025

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellants or sponsor, 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 appellants seek to challenge a decision of the First-tier Tribunal dated 4 June 2025 dismissing the appellants’ appeals against a decision dated 1 February 2024 refusing them entry to the UK pursuant to the refugee reunion provisions of the immigration rules.
2. The appellants are all citizens of Afghanistan, currently resident in Pakistan. The first appellant is the father of the sponsor, the second appellant is his wife and the remaining appellants are his children including three minor children. They are also the siblings of the sponsor. The sponsor is an Afghan national who is residing in the UK with her husband who is also an Afghan national with indefinite leave to remain following the grant of refugee status. The sponsor and her children have two children in the UK. The first appellant held a very high-ranking role in the Afghan army prior to the takeover by the Taliban in August 2021 (a category of person found to be at risk by the Secretary of State in the latest CPIN version 6 February 2026, 3.1.1) . The first appellant’s son was killed and tortured by the Taliban. This is the reason the family have fled to Pakistan.
The decision
3. The judge identified that the single issue in the appeal was whether family life existed between the sponsors, it being conceded by the Presenting Officer on the morning of the hearing, that if family life were engaged, the decisions would be disproportionate. At [33] the judge found that Article 8 ECHR is not engaged because the frequency of communication did not support the submission that there was an exceptionally strong bond between family members, and that the evidence of the sponsor’s PTSD about the threat posed was not persuasive evidence of a family bond which would engage family life. The judge did not accept that between 2019 when the sponsor married her husband to come to the UK there was “continuing real, committed and effective support” between the sponsor and her parents and siblings. The judge also took into account that the sponsor and her husband did not provide financial support to the appellants.
The grounds of appeal
Ground 1 - Misapplication of Kugathas principle/ irrational finding
4. When assessing whether there were “more than emotional ties” between the family members, the judge used an incorrect comparator. He compared the emotional ties that exist between the appellants and the sponsors with those that one would expect between adult children and their parents where the family had suffered the joint trauma of persecution rather than those of a “normal” family.
5. The judge erred by finding that there was a requirement for family life to be unbroken. The judge failed to take into account that family life may have resumed.
Ground 2 Error of fact
6. There was a mistake of fact leading to unfairness in accordance with E v R v SSHD [2004] EWCA Civ 49. The judge made a mistake about the frequency of communication between the appellant and the sponsor at [29]. This was as a result of the representative’s decision to lodge extracts of WhatsApp rather than all the material given to the representative.
Rule 24 response
7. The Secretary of State opposed the appeal submitting that the judge directed himself appropriately. It is submitted that the judge noted that the decision must be “unduly harsh” in order to breach the appellants’ Article 8 rights. The judge’s finding that Article 8 (1) was not engaged on the basis that there was no daily contact was sustainable. I note here that “unduly harsh” is not the correct test in non-deportation appeals.
Permission to appeal
8. Permission to appeal was granted by a judge of the Upper Tribunal on all grounds on 10 October 2025.
Rule 15(2A) application
9. The appellant sought to adduce further evidence pursuant to an application under rule 15(2A) dated 21 August 2025. The evidence included a statement from the representative and further evidence of communication between the appellants and the sponsors. The appellants’ representative asserted that in view of the legal aid costs they had decided to lodge only extracts/or a selection of WhatsApp messages, rather than all the messages that had been provided to them.
The hearing
10. Both parties made lengthy submissions on the rule 15(2A) application. Mr Nappey rigorously opposed the application. He also made submissions on both grounds defending the decision.
11. Although in oral submissions I heard representations on the rule 15(2A) application and the Ground 2 first, I will deal with the grounds as they appear in the written grounds.
Ground 1 – misapplication of the “Kugathas test”.
12. My starting point is that the test on the existence of family has been modified to some extent since Judge Aldridge determined this appeal because of the decision in IA & Ors v SSHD [2025] EWCA Civ 1516.
13. It is settled law that there is a presumption that family life exists between parents and their minor children and between married partners. Whether family life exists outside these relationships is a question of fact.
14. In IA the Court of Appeal has reviewed the caselaw on the question of whether family life exists between adult siblings. The question is whether there are the “additional elements of dependence, involving more than the normal emotional ties”. This is a “fact sensitive exercise that is to be decided on a case-by-case basis”. This was the test articulated by the ECHR in Kumari v The Netherlands 44051/20 and by the domestic courts in Beoku-Betts v SSHD [2008] UKHL 39.
15. The Court of Appeal also observed the following in relation to the additional elements of dependency test. At [66] the Court cited with approval Arden LJ’s judgement in Kugathas v SSHD [2003] EWCA Civ 31 [25] that confirmed that more than “normal emotional ties exist” where either the appellant is dependent on his family or vica versa.
16. At [120]: financial dependency and dependency created by physical or mental disability are relevant considerations. It is not, however necessary to show that one family member is completely reliant on their care and support in their daily life. The Court of Appeal endorsed Carr LJ’s formulations of the “additional element of dependency” test in Mobeen v SSHD [2021] EWCA Civ 886 [80]-[82] that “[n]ormal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency.”
17. At [123]: while it is correct to test whether there are additional elements of dependency by reference to the real, committed or effective support provided; real committed and effective support is not the test itself, because the level of real support, for example, may be minor or insignificant, whereas the word “dependency” denotes a significant relationship.
18. At [125]: there are no hard and fast rules as to how the additional elements of dependency test should be applied but it does require some dependence which is more than the existence of (real, committed and effective) support.
19. Before the First-tier Tribunal, as reflected in the skeleton argument prepared by Counsel for the appellant, it was argued that family life exists between the sponsors and the appellants based on dependency which goes beyond “normal emotional ties”. It was submitted that on the unique facts of this case, the family shared a history of persecution, displacement and trauma following the killing of the appellant’s eldest son and sponsor’s brother by the Taliban in 2021 which results in a high level of emotional dependency between the appellants and the sponsors. In support of this submission the appellant adduced a psychological expert report produced by Alice Rogers. She has diagnosed the sponsor with PTSD which is caused to some extent because of her fears in respect of what might happen to her father.
20. At [32] the judge said the following in respect of the expert report;
“I do not find that it is persuasive evidence in respect of a family bond beyond the stress that would be caused to any normal family adult member in such circumstances. I do not consider that this is sufficient to indicate that family life is engaged”. (My emphasis).
21. I agree with Ms Doerr’s submission that this constitutes a misapplication of the “additional elements of dependency test” in light of the expert psychological report. The judge compared the stress felt by the sponsor and appellants with another family in the same traumatic circumstances or facing similar hardship, rather than with a “normal family” and concluded that one would expect any persons who were displaced and at risk of persecution to have a bond as strong as between the appellants and sponsors. I am satisfied that the judge misdirected himself in this respect.
22. I am also satisfied that the judge misdirected himself when he found that family life did not exist because there was a break in “real, committed and effective” support in the period from 2019 when the appellant left her family home in Afghanistan [34]. It is trite that family life may be broken and re-established at a later date due to a change of circumstances.
23. Mr Nappey submitted that any error made by the judge in misdirecting himself was immaterial to the outcome of the appeal following IA which he submitted had similar facts. He submitted that the appeal could not on the facts as found by the judge succeed. The sponsor had formed her own family unit in 2019, she and her husband did not provide financial support to their family in Pakistan because of their own limited circumstances, there was limited phone contact and the circumstances of the family in Pakistan were irrelevant.
24. Ms Doerr submitted that it is not legally appropriate to compare the facts of one appeal with the facts of another and in any event the facts in IA were not comparable because the sponsors in IA had left Gaza 17 years earlier.
25. I take into account the general principle that judges of a specialist Tribunal will be taken to be aware of the relevant authorities and apply them properly. Nevertheless, in this appeal I am satisfied that the judge has misdirected himself both in respect of the comparator and about the gap in family life. I am not satisfied that if the judge had not made these errors he must have come to the same conclusion, particularly when looking at whether the dependency relied on was “over and above” normal family ties. I therefore that the error is material to the outcome of the appeal.
26. I therefore find that Ground 1 is made out and on that basis alone, I set aside the decision. There is therefore no need for me to make a decision about whether the new material can be admitted for the purposes of establishing that there was an error of fact made by the judge.
Disposal
27. Ms Doeer submitted that were I to be satisfied that there is a material error of law, it would be appropriate to remit the appeal to the First-tier Tribunal because of the level of factual findings and passage of time. Mr Nappey submitted that it is dependent on what error was made out. I am mindful that the normal course is to retain the appeal in the Upper Tribunal, however in this appeal I see some force in the submission that new factual findings will need to be made in respect of the issue of the existence of family life and I am satisfied that it is appropriate to remit the appeal to the First-tier Tribunal with no factual findings preserved for a de novo hearing.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of material error of law.
2. The decision is set aside in its entirely with no findings preserved.
3. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Aldridge.

R J Owens

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 April 2026