Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004152

First-tier Tribunal No: HU/52211/2024
LH/01011/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

Secretary of State for the Home Department
Appellant
and

FAIZA KOUSAR
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr. M Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr. I Hussain, of Lawrence Kurt solicitors

Heard at Field House by CVP on 15 December 2025

DECISION AND REASONS

Introduction
1. The Secretary of State is the appellant in this appeal but was the respondent before the First-tier Tribunal. In this decision I refer to the parties in the same procedural position as they were before the FtT. The Secretary of State, who I will refer to as the respondent, was granted permission to appeal the decision of First-tier Tribunal Judge Joshi (‘the judge’) who allowed the appeal brought by Faiza Kousar, who I will refer to as the appellant, a citizen of Pakistan by a determination dated 29 July 2025, following a hearing which took place on 11 June 2025. That appeal challenged the respondent’s decision to refuse the appellant’s application for leave to enter the UK dated 19 February 2023. The judge allowed the appellant’s appeal on the ground that refusal of her application for leave to enter amounted to a disproportionate interference in her and her child’s rights under article 8 of the European Convention on Human rights (‘ECHR’). Her child is a British citizen.
2. First-tier Tribunal Judge Karbani granted permission to appeal on 4 September 2025, refusing permission to appeal on one of the aspects of the ground of appeal pursued
3. The hearing took place before me by CVP on 15 December 2025. At the start of the hearing I ensured that all parties could hear and see each other sufficiently for the hearing to proceed. I then heard submissions from Mr. Diwnycz for the Home Office and from Mr. Hussain for Ms. Kousar. I received a composite bundle running to 85 pages in advance of the hearing. In this decision

Decision of the First-tier Tribunal
4. The judge began his judgment (at §§1-9) by setting out the appellant’s background and the circumstances of her application for leave to enter, made under appendix FM of the Immigration rules, on the basis of her family life with her son, who is a British citizen who lives with her in Pakistan. She has separated from the child’s father and has sole parental responsibility for her son. The judge set out the basis for the appeal against the respondent’s decision, that she did not meet the eligibility for entry as the relationship requirement of the paragraph of the Immigration Rules under which she sought leave was not met in circumstances where hr son was not living in the UK, she did not meet the financial requirements of the Immigration Rules. Her article 8 ECHR rights would not be breached by the decision and there were no serious and compelling family and other considerations considering her son’s best interest.
5. The judge then set out the course of the appeal hearing, the material before him and the evidence (at §§10-16). The judge recorded an attempt by the respondent to withdraw a concession that the appellant has sole parental responsibility for her son. The judge refused to allow the Home Office to withdraw that concession. The judge heard oral evidence from the person offering the appellant accommodation and support in the UK, described as her sponsor. The judge then summarised the parties’ submissions (at §§17-32) and the some of the relevant legal principles applying to article 8 ECHR (at §33)
6. The judge set out his findings (at §§34-45). He found that the appellant does not satisfy the requirements of the Immigration Rules. However the judge decided that the decision will have disproportionate consequences for the appellant and her son and the judge allowed the appeal on this basis. The judge gave reasons given for rejecting the claim made under the Immigration Rules; paragraph E-ECPT2.2 was not met, the child is not living in the UK. The judge stated they applied the principles in Razgar. The interference caused by refusal engages article 8, it is in accordance with the law and pursues a legitimate aim. It is not proportionate. Not meeting the requirements of the Immigration Rules is an adverse factor, attaching appropriate weight to the public interest. The judge found that the appeal is exceptional. The appellant’s son is a British citizen aged 4. There is no evidence he has other nationality. His mother is not a British citizen. She is caring for him in Pakistan. It is in his best interests to be cared for by his mother and it is not appropriate for them to be separated. The application was refused as the appellant’s child was not living in the UK. It would not be possible for him to do so without the appellant joining him. The consequence of her not joining is that the appellant would not be able to enjoy his status as a British citizen in the UK. There are comparable examples of where a child is permitted to travel to the UK with an applicant (although the judge did not detail what these are other than stating that they are in the context of the EU). Otherwise the appellant’s son is denied rights he enjoys by virtue of his citizenship. The appellant’s son would find himself in a similar position and would not be able to enjoy his citizenship, this would be a disproportionate interference in his rights. As to section 117B of the Nationality Immigration and Asylum Act 2002, the appellant speaks some English and would be financially independent. On balance the public interest is outweighed by the consequences to the appellant and her son of refusing the appeal. The appeal was allowed on Article 8 grounds.

Ground of Appeal
7. The respondent advances one ground of appeal: that the judge failed to give reasons or adequate reasons for findings on material matters, failed to take into account or resolve conflicts of fact on material matters and made a material misdirection of law on material matters. This ground was developed in a number of ways in the written grounds of appeal which Mr. Diwnycz adopted at the appeal hearing, which I set out in greater detail below
The Law
8. In Razgar v SSHD [2204] UKHL 27 [2004] 2 AC 368 Lord Bingham held at [51] (with emphasis added):
The other type of 'domestic' article 8 case arises where there is no question of expulsion but immigration control prevents other close family members joining a spouse or parents living in the contracting state. The first was Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, in which the argument that Convention rights were not engaged at all in immigration cases was roundly rejected. Husbands and wives have the right to respect for their family life even if they have not yet established a home together. But the Convention does not give them the right to choose where that home shall be. There were no obstacles to these couples establishing their family life in their husbands' countries of origin rather than in the United Kingdom. They knew that the husbands had no right of entry when they married. There was thus no breach of article 8. But there was a breach of article 14. If the sexes had been reversed, the wives would have been allowed to join their husbands here. The different treatment of husbands and wives could not be justified by the differential impact upon the labour market.
9. In IA & Ors v Secretary of the Home Department [2025] EWCA Civ 1516 a recent decision of the Court of Appeal on the application of article 8 ECHR to persons outside of the UK, the Court reviewed the relevant authorities on how the rights of persons outside the jurisdiction of the ECHR are to be treated in weighing the proportionality balance at [86]-[100] including Beoku-Betts v SSHD [2008] UKHL 39, [2009] 1 AC 115, AS (Somalia) v SSHD [2009] UKHL 32, [2009] 1 WLR 1385, Al Skeini v United Kingdom 55721/07, 7 July 2011, (2011) 53 EHRR 18, R (Quila) v SSHD [2011] UKSC 45, [2012] 1 AC 62, Abbas v SSHD [2017] EWCA Civ 1393, [2018] 1 WLR 533 and MN v Belgium 3599/18, 5 May 2020. At [100] the Court concluded (with emphasis added):
It seems to us that all these cases point in the same direction. Whilst persons seeking to enter an ECHR state from outside the jurisdiction of the ECHR will not have their own rights under article 8, if they have pre-existing family life with a person within the territory of the ECtHR, article 8 may impose a positive obligation on a state to admit those people, if they have family life with a person within the territory. That is what is meant by family life being unitary (see [141] under ground 2 below). The concept of unitary family life does not, however, mean that the state is under a positive obligation to admit every member of the wider family of the person within the territory of the UK.
The Court of Appeal also reviewed the authorities relevant to the weighing of the proportionality balance under article 8 ECHR at [101]-[112] including Jeunesse v The Netherlands, (GC) 12738/10, 3 October 2014, (2015) 60 EHRR 17, El Ghatet v Switzerland 56971/10, 8 November 2016 and R (Agyarko) v. SSHD [2017] UKSC 11, [2017] 1 WLR 823 including at [112] that in Agyarko:
At [54]-[60] Lord Reed held that the requirement for “exceptional circumstances” for leave to remain to be granted outside the rules was not inconsistent with either ECtHR or domestic authorities.
The submissions of the Parties
10. Mr. Diwnycz adopted the written grounds of appeal as follows:
a. The judge failed to provide adequate reasoning and/or resolve a conflict of fact or opinion and failed to correctly apply relevant case law when allowing the appeal, causing it to contain a material misdirection of law
b. The judge based their decision on the premise that the appellant’s son has no option other than to enter the UK but failed to resolve whether he can be expected to remain with the appellant. Razgar confirms the purpose of Article 8 ECHR is not to allow individuals to choose where they want to live. The judge overlooked this and confused the rights of the appellant with those of her son when considering the appeal. The appellant’s son has not chosen to live in the UK but his mother has chosen to do so for him. There are no findings or reasoning as to why remaining in Pakistan would breach their rights under article 8 nor any compelling or compassionate circumstances that would necessitate their departure.
c. The judge did not consider the appellant’s son’s birth certificate and registration in Pakistan provided for the hearing. The child is entitled to Pakistani citizenship. Pakistan permits dual nationality and there is no evidence that the appellant’s son has renounced his citizenship. The judge was mistaken in finding that the appellant’s son is not a dual national and only holds British citizenship, the judge failed to adequately resolve why the appellant and her son cannot continue to reside in Pakistan even if the child only held British nationality.
d. The judge’s findings failed to properly consider or resolve the article 8 issues within the appeal with adequate reasoning. The judge’s focus on the appellant’s son’s citizenship infected their assessment of the appellant’s Article 8 claim outside the rules and they failed to consider the appellant’s submission that they can remain in Pakistan without a breach of their family life. The decision to allow the appeal amounts to a material misdirection of law that must be set aside.
e. If there was an error, absent any fresh evidence, everything was before the FTT, this Tribunal can remake the decision without a further hearing.
11. Mr. Hussain submitted that the judge’s decision is watertight, the respondent’s submissions are an attempt to reargue the case; the SSHD is not happy with how the judge struck the proportionality balance. There are compassionate and compelling grounds. There is no appeal against the Judge’s finding in relation to the withdrawal of the concession of sole parental responsibility, that was rejected. The appellant does have sole parental responsibility. There is no appeal against that. The appeal is a challenge to the judge’s view placing significant weight on the child’s right to be in the UK, that cannot happen whether the child is granted leave to enter. One person’s right cannot be disrupted by another person’s right. The judge found the child could not carry on family life without their mother. The Secretary of State’s submissions are a disagreement with the balance. That is not made out. At paragraph 30 the judge found that they are struggling to live in Pakistan. The Judge made that finding, which is not challenged. The decision in IA must be read with the duty on the Secretary of State under section 55 of the Borders Citizenship and Immigration Act 2009, which extends to children living abroad. The child is entitled to come and live in the UK. There would be a significant difference if a British citizen adult was living with a non-citizen abroad. The child is a British citizen, their right to come in to the UK has to be given weight. Any decision which prevents the child from doing so engages the child’s right. The judge gave appropriate weight to the child’s right to come to the UK. It is in the child’s best interests to live in the UK. The judge gave appropriate weight to that. No case law directly suggests that British children could be excluded from the UK. Paragraphs 41 and 42 of the judge’s decision is the reasoning that the SSHD attacks, the SSHD is wrong to submit that those paragraphs are not reasoned. The Judge looked at article 8 proportionality in the round and correctly. The decision denied a British citizen child access to the rights of his citizenship. The Judge was entitled to conclude as he did. If there is an error, and the decision is set aside the matter should be retained in the Upper Tribunal for a further hearing. The court should give further attention to the structure of the Immigration Rules. If the decision is remade the Upper Tribunal should look afresh and decide where proportionality lies on narrow points.
Discussion
12. The judge determined that the refusal of the appellant’s application for entry clearance amounted to a disproportionate interference in their rights under article 8 ECHR. I have come to the conclusion that was a material error of law which must be set aside. I give reasons for that conclusion below. In general terms I prefer the submissions of the respondent to those of the appellant on this issue.
13. First, while the respondent’s case is put in a number of different ways, at its core it amounts to a submission that judge materially erred in law in his approach to the article 8 rights of the appellant and her child. As a matter of law, both the House of Lords’ decision in Razgar and the more recent decision of the Court of Appeal in IA confirm that the ECHR does not provide for families living outside of the UK who include a British citizen to choose to live in the UK. While the judge stated that he ‘applied the test in Razgar’ at paragraph 38 of his decision, he did not say what that test was or what the outcome of that test was beyond article 8 being engaged. The judge made no reference to the principle elucidated by Lord Bingham at paragraph 51 of Razgar, set out at [8] above.
14. Second, in this case there is no question that the appellant and her son enjoy family life together. They do so outside of the UK. The effect of the refusal of entry clearance does not cause an interference in their enjoyment of that family life, they will not be separated from one another as a result of the decision.
15. Third, the judge was correct to attach weight to the public interest and to consider the fact that the appellant does not meet the requirements of the Immigration Rules at paragraph 40 of his decision. Sensibly, neither party sought to challenge that conclusion.
16. Fourth, the judge find that the circumstances were unusual where the appellant’s son was a British citizen being cared for by his mother in Pakistan. His mother is a Pakistani national. The judge found it was in the child’s best interests to be cared for by his mother and on the evidence it would not be appropriate for them to be separated. Those conclusions were proper and open to the judge. He found that it would not be possible for the appellant’s son to live in the UK without his mother and that as a result he would not be able to enjoy his status as a British citizen in the UK without his mother. Here the judge fell into error. The effect of the respondent’s decision was not to separate the appellant from her child. Nor did it require that the appellant and her son separate. The height of the interference is that the appellant and her son are not able to live together as a family unit in the UK, they will remain living together as a family unit in Pakistan. For completeness, although the judge did not resolve the question of whether the appellant’s son was entitled to Pakistani citizenship, I do not consider that dispositive of this appeal in favour of either party.
17. Fifth, at paragraph 42 the Judge noted examples of situations relied on by the appellant where EU citizens travel to the UK. The judge was correct to note that such situations are not directly comparable to the facts of this case. The judge found the appellant’s son would not be able to enjoy his British citizenship and this would be a disproportionate interference with his rights. With respect to the judge, this reasoning is hard to follow. It is unclear why the fact that the appellant would not be able to live in this jurisdiction gives rise to a disproportionate interference in her article 8 rights beyond a frustration of her preference to live here rather than in Pakistan. It does not appear that there was any evidence from the appellant (or her child) on this issue beyond the fact that the appellant wants to enter the UK to live here. The judge failed to focus on the impact of the refusal of the application on the appellant and her child, namely that they would remain living together in Pakistan. Instead the judge found that because, as a matter of practicality, the appellant’s child could not live in the UK without her gave rise to a disproportionate interference in his article 8 rights. I consider that this was a material error of law. It did not give proper effect to the principles elucidated in Razgar nor the well-established authorities discussed in IA, summarised above. The judge did not consider, as he should have, that the appellant and her son do not at present have family life in the UK when assessing the proportionality of the interference caused by the respondent’s decision.
18. The judge’s findings on section 117B of the 2002 Act (at [43]) were open to him, albeit they did not dispose of the article 8 issue on their own.
19. Sixth, the Judge did not explain in an adequately reasoned way why the circumstances of this case were exceptional so as to permit a finding of a disproportionate interference in the appellant’s article 8 ECHR rights outside of the immigration rules. The judge considered the circumstances of a British citizen child living with a non-citizen parent to be exceptional but gave no further reasons for such a finding.
20. Mr. Hussain did not take me to or cite any authorities in support of the proposition that the interference caused in a British Citizen’s article 8 ECHR rights would amount to exceptional circumstances so as to be disproportionate, where the effect of a decision of the Secretary of State to refuse leave is that the British citizen child remains living with a non-citizen parent outside of the UK. Nor was he able to provide any case law to provide illustrative examples of such a finding being made.
21. The Judge’s conclusion that the appellant’s situation gave rise to exceptional circumstances was also, in my judgment, a material error of law.
22. Seventh, it follows that I reject Mr. Hussain’s submission that the respondent’s submissions are not more than a disagreement with the judge’s findings. In my judgment the respondent’s submissions reveal material errors of law in the judge’s decision. For the avoidance of doubt, the judge did not make a finding at [30] of his judgment that the appellant and her child are struggling to survive in Pakistan. That paragraph records the submission made to the judge to that effect but does not amount to such a finding or an acceptance of that submission.
23. Eighth, Mr. Hussain placed weight on the section 55 obligation which is on the Secretary of State. This is a matter which the respondent considered in the original underlying decision of 19 February 2024. It was further considered in the respondent’s appeal review at [21]. It does not appear that this issue featured heavily, or at all in the hearing before the judge (other than a reference at the end of paragraph 15 of Ms. Kousar’s skeleton argument before the judge). I am unable to accept Mr. Hussain’s submission that the section 55 duty applies to children living outside of the UK, that is not what the clear wording of section 55(1) states.1 In any event, even if it was of significance, the best interests of the appellant’s child were clearly served by his continuing to live with his mother. The respondent’s decision did not give rise to any basis on which he would not continue to live with her.
24. For all of these reasons I conclude that the judge’s decision did contain a material error of law. I set it aside.

Remit or remake?
25. The respondent submitted that if I found a material error of law that I could re-make the decision without a further hearing. Mr. Hussain submitted there should be a further hearing, which could be in the Upper Tribunal, to consider the structure of the Immigration Rules and to look afresh at the issue of where proportionality lies. He accepted that the point was a narrow one and that there was no further or fresh evidence on which he sought to rely.
26. In those circumstances, applying paragraph 3 of the Practice Directions of the Immigration and Asylum Chambers of the FTT and the UT, as amended on 18 December 2018, I am satisfied that it is appropriate for me to remake the decision. There is no further or fresh evidence that either party wishes to call, nor any dispute about the underlying facts. There errors of law on the part of the judge did not give rise to any procedural unfairness in the circumstances that led to the underlying decision such that I should not remake the decision. There was no challenge by either party to the judge’s finding that the appellant’s claim under the Immigration Rules failed. Accordingly, there would be no purpose in convening a further hearing to consider the structure of the Immigration Rules when the appellant could not succeed in her claim under the rules. The issue that falls for determination is one of the application of the law to undisputed facts, rather than one turning on disputes of fact or evidence. I gave both parties the opportunity to make submissions on how the case should be decided in the event of my finding a material error of law in the judge’s decision.
27. In light of the analysis of the judge’s decision which I have set out above, I can remake the decision with brevity. I preserving the decision of the judge other than at paragraphs 41 and 42 including their assessment of the section 117B factors. Article 8 is engaged. Carrying out the requisite balancing exercise, I do not consider that the circumstances of the appellant are exceptional so as to permit a grant of leave to enter outside of the Immigration Rules. It is correct that the appellant’s child’s best interests are served by him continuing to live with her. That will be the case whether or not the appeal is allowed. It is correct that on the evidence before the judge, the appellant’s child will be unable to exercise his right to live in the UK. However, in terms of the interference that this causes in his and his mother’s article 8 rights, I find that interference on its own to be in accordance with the law, in pursuit of a legitimate aim and proportionate. The effect of the decision is that the appellant’s child will continue to live with her in Pakistan. Whilst the appellant’s child will not be able to enjoy their rights and they will not be able to live in the UK, which is their and the appellant’s preference, I do not consider that that gives rise to a disproportionate interference in their article 8 ECHR rights, nor those of the appellant, nor are there exceptional circumstances on which the appellant could be granted leave to enter the UK outside of the Immigration Rules. The appellant’s appeal on human rights grounds is dismissed.
28. It follows that the Secretary of State’s appeal against the decision of the judge succeeds and the decision is remade, Ms. Kousar’s appeal on human rights grounds is dismissed.

Notice of Decision
29. The First-tier Tribunal’s decision involved the making of a material error of law. The Secretary of State’s appeal is allowed.
30. I remake the decision. Ms. Kousar’s appeal is dismissed.

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 December 2025

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.