Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004204

First-tier Tribunal No:
HU/54285/2024
LH/08088/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th November 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

MNR
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Spurling, instructed by Wilson Solicitors LLP
For the Respondent: Mr M. Parvar, Senior Home Office Presenting Officer

Heard at Field House on 6 November 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and the sponsor are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, the sponsor or any member of their family, 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 First-tier Tribunal made an anonymity order in this appeal and I have not been asked to lift it. I consider that anonymity continues to be appropriate because the sponsor is a young child who has been found to be vulnerable, and it will be necessary in my decision to set out potentially distressing details of her family life, in particular with regard to her father. It is clearly in her best interests to protect her privacy, and I am unable to identify a public interest in disclosing the precise details of her identity that outweighs this.
2. Mr MNR’s appeal was allowed by the First-tier Tribunal (“FTT”), and the Secretary of State for the Home Department has been granted permission to appeal to the Upper Tribunal against that decision. The Secretary of State is therefore the appellant in these proceedings and Mr MNR is the respondent. However, to make the decision easier to understand, throughout my decision I will refer to the parties in the same way as in the FTT proceedings: every reference to “the appellant” below is to Mr MNR and every reference to “the respondent” is to the Secretary of State.
Introduction
3. This appeal turns on the best interests of a 12-year-old British citizen who was born in Afghanistan in August 2013. I will call her “C” for “Child” for the purposes of this decision, in order to protect her privacy. The underlying facts are not dispute. The summary that follows is based on a combination of accepted facts and the unchallenged findings of the First-tier Tribunal. In addition, in order to set out the narrative clearly, I have filled in a few specific dates from the documents before me.
4. The appellant is C’s uncle, an Afghan citizen who, she says, is like a father figure to her. Her biological father is a British citizen and was already living in the UK when she was born. He is mentally very unwell and, following criminal offending, he has been residing in a secure mental health facility in the UK for the past three-four years. The appellant’s mother is a citizen of Afghanistan who joined her husband (C’s father) in 2016, when C was just under three years old. C remained living in Afghanistan with her extended family, and her uncle played a central role in her upbringing.
5. In August 2021, C was due to be evacuated from Kabul by the British authorities during Operation Pitting. She had just turned eight years old, and was to be accompanied by her uncle, who had been granted a visa waiver by the UK authorities for this purpose. Unfortunately, because of the security breakdown, they were unable to reach the airport in time to be evacuated. Over the next 11 months, with the assistance of solicitors, the appellant persistently sought to persuade the respondent and the Secretary of State for the Foreign, Commonwealth and Development Office to facilitate their travel to the UK together. In March 2022, they travelled to the UAE together. Finally, in July 2022, C reluctantly travelled to the UK without the appellant. She now lives with her mother and occasionally visits her father at the secure mental health facility where he resides. The appellant remains in the UAE.

The appellant’s application for entry clearance outside the Immigration Rules
6. On 26 January 2023, the appellant applied for entry clearance to the UK outside the immigration rules. His representatives clearly set out in their covering letter that there was no Immigration Rule that applied to his situation. They further explained that he had used the online form designed for applications for Family Reunion because that form most closely matched his circumstances. They pointed out that this was in accordance with the respondent’s guidance, Leave outside the Immigration Rules, Version 2.0.
7. The basis of the application was that there was family life between C and the appellant and that it would be disproportionate under article 8 to refuse the appellant entry clearance to the UK so that their family life could continue. The appellant relied on C’s vulnerability, the “unusual and exceptional ties of dependency” between C and her uncle, the appellant’s precarious situation in the UAE, the failed evacuation during Operation Pitting, the inability of C and her uncle to enjoy family life together anywhere else, and, most of all, C’s best interests. The appellant relied, inter alia, on two reports by an Independent Social Worker (“ISW”), dated 14 September 2022 and 15 November 2021, a detailed statement from the appellant, evidence of video communication between C and the appellant, and documents from preceding judicial review proceedings setting out the very difficult circumstances of their failed departure from Afghanistan and their life under Taliban rule thereafter and their prolonged efforts to obtain permission to travel to the UK together.
8. On 15 March 2024, the respondent refused the application. The respondent noted as a preliminary matter that the appellant did not meet the Immigration Rules. She then found that there was insufficient evidence that there was family life between C and the appellant. Alternatively, it was asserted that the public interest in “maintaining the integrity” of the Immigration Rules outweighed the appellant’s right to a family life. The consideration of C’s best interests consisted of a reference to the fact that C was nine years old at the date of the application, that the appellant was her uncle and that she was being “supported and cared [for] by family in the United Kingdom, there is no reason why this will not continue.” Finally, it was asserted that there were no compelling and compassionate factors.
The appeal
9. The appellant appealed and submitted further evidence, including an updated ISW report dated 29 May 2024, witness statements from the appellant and C’s mother, a letter confirming that C’s father remained living in a secure mental health unit and although he had progressed “it was not known when he will be discharged”, and a handwritten letter from C.
10. The respondent conducted a respondent’s review, dated 30 October 2024. The respondent continued to dispute that there was family life between C and the appellant and noted with regard to C’s best interests that she lived with her mother and had “both of her biological parents,” although the respondent “acknowledge[d] at present he is in hospital.” The respondent also set out various reasons that the FTT should give little weight to the ISW reports and noted that there had been no formal transfer of parental responsibility to C. Having urged the FTT to put little weight on the ISW report, the respondent argued that there was little evidence of emotional dependence between the appellant and C, that C’s difficulties to adjusting to life in the UK were likely due to “adapting to life in an unfamiliar country”, and that “[i]t is expected that the mother provides the necessary love, affection and care for the child and is willing to do so, particularly given the close bond they were previously said to enjoy.” The mother’s witness statement was dismissed as “self-serving”. The respondent also relied on the public interest in effective immigration control, as set out at Section 117B(1) of the Nationality, Immigration and Asylum Act 2002. On the evidence submitted, the high threshold of “unjustifiably harsh consequences” as set out in Agyarko [2017] UKSC 11 had not been reached.
11. On 28 November 2024, with the consent of the FTT, the appellant filed a second bundle in reply to the respondent’s review, which included the ISW’s CV and a two-page letter, dated 27 November 2024, responding to the criticisms in the respondent’s review of 30 October 2024.
12. On 29 November 2024, the FTT issued directions to the respondent to file a supplementary review addressing the submissions made on the previous day, no later than 13 December 2024. The respondent complied with those directions, filing a second respondent’s review on 8 December 2024. The respondent gave reasons that little weight should be put on the ISW report and made submissions about alternative findings about C’s best interests that could be drawn from the evidence.
13. Following further directions and an unsought adjournment, the appeal came before the FTT for hearing on 28 July 2025. The FTT heard oral evidence from C’s mother and submissions from both parties and reserved its decision. In a decision dated 15 August 2025, it allowed the appeal on the grounds that there was family life between C and the appellant and that refusing the appellant entry clearance was a disproportionate interference with their article 8 rights. I will set out the reasoning by which the FTT reached that conclusion in more detail in the discussion below.
The grounds of appeal
14. The respondent applied for permission to appeal on four grounds and was granted permission to appeal on three.
15. Ground One: “Error in approach to Rules”. The respondent here noted that the FTT had found that the appellant could not meet the Rules. The submission continues:
“Having so found, the Tribunal stated at [59] “there is an existing gap in the Rules”. If the Tribunal was granting leave on Art 8 outside the Rules, that must mean that there is no gap in the Rules and Art 8 is the alternative. It is not for the Tribunal to expand the Rules through alleged “gaps” (see Kaur v SSHD [2018] EWCA Civ 1423).”
16. The respondent amplified this ground in her skeleton argument, clarifying that there were two errors contended for here: inadequate reasoning and misdirection in law. The inadequate reasoning submission was that the decision consisted primarily of references to various legal authorities and long extracts from the ISW report, and it was only at [59] that the FTT conducted its “own assessment.” Paragraph 59 reads:
“Having considered the appellant’s circumstances through the lens of the Rules, I find that there is an existing gap in the Rules and the part played by the respondent’s discretion is greater when the appellant’s circumstances are considered against the family history in this appeal.”
17. It was contended that this paragraph displayed a misdirection in law, in two ways. First, if the FTT was implicitly relying on the ISW report as establishing that refusing entry clearance would have “unjustifiably harsh consequences”, it must have been applying too low a threshold, because the ISW had only found that the appellant’s absence was having a “very significant impact” on the appellant, which “is not the same”. Second, the FTT appeared to be treating the existence of a “gap in the rules” as weighing in the appellant’s favour, rather than against him, which was clearly wrong in law. Reliance was placed on TZ Pakistan and PG (India) v SSHD [2018] EWCA Civ 1109 at [33] for the principle that the FTT was required to “take into account as a factor the strength of the public policy in immigration control as reflected in the Secretary of State’s test within the Rules.”
18. Ground Two: “Inadequate proportionality assessment under Article 8”. The primary submission made was that “[t]he proportionality analysis at [34-61] is inadequately reasoned.” This was followed by an assertion that, “This is not a case in which the impact of the decision upon the family life is disproportionate to the legitimate aim of immigration control [57]”, which is simply a statement of disagreement. However, several specific errors of law are articulated in what follows:
(i) The Tribunal did not structure the reasoning around the Razgar test;
(ii) It was unclear what weight was attached to the competing considerations;
(iii) Section 117B requires “express consideration of financial independence, ability to speak English, and the strong weight Parliament attaches to immigration control,” and there was insufficient (or no) consideration of these factors.
(iv) “The Tribunal instead asserted at [60] that “this is such a case” without demonstrating why these statutory considerations were outweighed.”
19. In the skeleton argument, the respondent conceded that a reasonable judge could have found that this was “an exceptional case” requiring a grant of leave (described in the skeleton as “requiring departure”, presumably from what the Rules require) “following an actual assessment of the considerations in section 117B, but that is non-existent within the judgment”.
20. Ground Three: “Misapplication of s55 test”. Several different complaints were raised here:
(i) The FTT “placed undue weight on historic caregiving in Afghanistan and the UAE, rather than the present and future circumstances of the sponsor in the UK.”
(ii) The FTT erred by treating C’s best interests as determinative;
(iii) “Nobody is being removed from the UK (contrary to Tribunals implication). Therefore, Rhuppiah v Secretary of State for the Home Department [2018] does not apply [23]”. It is entirely unclear what the respondent is saying here, because at [23], the FTT cited Rhuppiah for the principle that the respondent is bound by Section 6 of the Human Rights Act 1998 and therefore “if the Home Secretary refuses a person’s application for leave to remain in the UK under the rules, he must nevertheless consider whether to grant leave on the basis of their rights under article 8.” The FTT did not cite Rhuppiah for any principle related to removal from the UK. I therefore say no more about this particular submission.
(iv) “The best interests of the child must already have been applied in relation to the sponsor’s EC to the UK to be with her mother and father. It is unclear then how the Tribunal finds that it is the sponsors best interests also to have her uncle here as well.” This is difficult to understand. It is beyond doubt that judges are required to identify the best interests children as of the date of the hearing; whether the respondent did or did not comply with her separate section 55 duties at some previous date is unlikely to be relevant. See, e.g. CAO. Nor, in fact, did the respondent grant C “EC” to the UK out of concern for her best interests. She is a British citizen and entered the UK as of right. Finally, the FTT clearly identified and set out at great length the evidence that supported the conclusion that the uncle’s presence in the UK was in C’s best interests. It was the three ISW reports before it. Mr Parvar did not pursue this submission before me and was right not to do so.
21. In the skeleton argument, the respondent argued that the error with regard to the best interests consideration overlapped with the error with regard to approach to the “gap in the rules” and to the overall balancing test, in that the FTT had treated C’s best interests as a “freestanding basis” for granting the appellant entry clearance, without identifying countervailing public interest factors or explaining why they were outweighed. She concluded, “There is nothing within the substance of the reasoning to show the correct treatment or application of section 55, particularly in the absence of any proper regard to the public interest considerations.”
22. The respondent had also sought permission to challenge the FTT’s finding that there was family life between the appellant and the sponsor, but the FTT refused her permission to appeal on that ground and she did not renew her application on that ground before the Upper Tribunal. There was therefore no challenge before me to the FTT’s finding that there was family life between C and her uncle.
23. The appellant filed a brief Rule 24 response, which I have taken into account.
The hearing
24. At the hearing before me, I had a respondent’s bundle of 895 pages, which included the FTT determination, the grounds and grant of permission to appeal, and most of the documents that were before the FTT. Three documents that were before the FTT had not been included. These were a statement from C’s mother from 2021 and the two documents that formed the appellant’s response to the respondent’s review, uploaded on 28 November 2024. I also had a Rule 24 response on behalf of the appellant, dated 5 October 2025, and a skeleton argument on behalf of the respondent, dated 5 November 2025.
25. I heard thoughtful submissions from both representatives, for which I am grateful. I confirm that I have taken into account all of the oral and written submissions by both parties in making my decision.
26. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Legal framework
27. Error of law decisions must be guided by the principles of appellate restraint set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4].
28. In this case, Mr Spurling relied in particular on the following:
(i) The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently;
(ii) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract;
(iii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account;
(iv) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out.
29. As both representatives helpfully recognised in their submissions, moreover, an appellate tribunal must avoid the temptation of “island-hopping” and instead must look at the FTT’s reasoning as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
30. It was also agreed at the hearing before me that the principles governing the decision the FTT was required to make are well-established. They are uncontentious, but I set them out here as the framework for my consideration of the FTT’s reasoning in this case. Although they have been repeated in many cases over more than a decade, they are perhaps most simply summarised with reference to the requirements of Section 117B, Agyarko and, most recently, CAO v SSHD [2024] UKSC 32:
(i) Since July 2012, the Rules have reflected the respondent’s assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. They are designed to operate on the basis that decisions taken in accordance with them are compatible with article 8 in all but exceptional cases: Agyarko at [46]-[47].
(ii) “It is the function of the courts to consider individual cases which come before them on appeal […], and that will require them to consider how the balance is struck in individual cases. In doing so, they have to take the Secretary of State’s policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case.” Agyarko at [47].
(iii) The test is one of proportionality: “The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal [or non-admission] of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it.” Agyarko at [57]. The respondent’s policy describes the threshold for when the individual interests will outweigh the public as the existence of “unjustifiably harsh consequences”, which is compatible with what article 8 requires. Id at [60]
(iv) One helpful way of structuring the analysis is by adopting a “balance sheet” approach, setting out the factors weighing both for and against a grant of leave. Hesham Ali v SSHD [2016] UKSC 60 at [83]-[84]. This is not, however, required.
(v) Although all relevant factors must be taken into account, judges are required to have regard, in particular, to the “public interest” considerations list at section 117B.
(vi) In appeals affecting children, the FTT must come to its own assessment of where the best interests of the children lie, taking into account all of the evidence before it and, where necessary, directing the parties to provide further evidence. Relevant principles are:
“(1) The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration; (3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment.” CAO at [51] (citing Zoumbas v SSHD [2013] UKSC 74 at [10]).
Discussion
Ground One
31. The FTT’s decision is lengthy and densely packed with excerpts from leading caselaw from the senior courts. Many of the excerpts from caselaw rehearse broad, overarching principles about the interplay between the Immigration Rules and the article 8 assessment in individual cases. For the most part, they are taken from leading cases dating from the first few years after the introduction, in 2012, of new immigration rules that were intended to reflect what article 8 requires. There is nothing wrong with the approach of going back to first principles, although other judges might not have found this necessary given that the principles are now well-established. The references to caselaw are then interspersed with paragraphs in which the FTT summarises the resulting legal framework.
32. The respondent has not identified any specific misdirection in law anywhere in the decision, other than with regard to the reference to a “gap in the rules” at [50]. Mr Spurling accepted that the reference to a “gap in the rules”, taken in isolation, could be misunderstood, but he pointed out that it followed directly after a long citation from Nagre, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). This is, again, one of the earlier cases addressing the approach that courts should take towards article 8 decision-making after July 2012:
“...the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.”
33. He submitted that the FTT’s finding that there was a “gap” in the rules was nothing more than its application of the guidance in Nagre which it had just cited. It was explaining that it had considered whether the main points for consideration in this particular case were covered by the rules and concluded that they were not. Nagre describes this as a necessary first step in the analysis (“It is only if, after doing that”). Having taken that first step, the FTT proceeded to the second, which was “to go on to consider whether there are compelling circumstances” outside the Rules. There is nothing to indicate that the fact that there was a “gap” in the Rules played any further role in the proportionality assessment. It was the gateway to that assessment, as the FTT understood was required by Nagre, but nothing more.
34. I agree with this analysis. It is consistent with the approach that the FTT directed itself to take throughout the determination, as I now detail.
35. The FTT’s “Application of law to the facts” began with the self-direction that “It will be appropriate to first consider the appellant’s art. 8 ECHR claim with reference to the Rules”: [15] At [16], it did just that, confirming the undisputed fact that the appellant did not meet the rules. At [17], it identified the next step as the consideration of “whether or not there is any argument that warrants consideration of this appeal under art. 8 outside of the provisions of the Rules.” This is the same two-step process identified in the later excerpt from Nagre.
36. The next section of the determination is entitled “Article 8 ECHR”. This began with the self-direction that the test to be applied was that of “unjustifiably harsh” consequences or “compelling circumstances”, because the appellant could not succeed under the Rules [18]. This is obviously the right test and is reflected at various places within the Rules and in the respondent’s policy.
37. At [19]-[23], the FTT directed itself to leading caselaw about the role that the Rules play in the article 8 assessment, in the following terms:
(i) Because Appendix FM and Para. 276ADE are not a “complete code” (unlike, although the FTT does not make this explicit, section 117C of the 2002 Act), the article 8 assessment outside the Rules is guided by Huang v Secretary of State for the Home Department [2007] 2 AC 167, as well as UK and Strasbourg jurisprudence.
(ii) Huang established that the Rules were the beginning but not the end of the article consideration; they are “relevant” but “not determinative” ([20].
(iii) The Supreme Court had held that the “Rules are the starting point for consideration of art. 8, “and no more than that” (citing Hesham Ali v Secretary of State for the Home Department [2016] 1 WLR 4799 (‘Hesham Ali’), at [53] and [62] and Secretary of State for the Home Department v AQ (Nigeria) [2015] EWCA Civ 250.)
38. The reference to the Rules being “nothing more” than a starting point could be taken as inconsistent with the requirement to attach considerable weight to them in the article 8 assessment (although this was not a complaint raised by the respondent). However, the first of the two paragraphs of Hesham Ali to which the FTT directed itself emphasises the considerable weight that must be given to the Rules:
“53. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals […] The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. […]”
39. No specific paragraph of AQ (Nigeria) is referenced, but in that case the Court of Appeal had reiterated that the assessment of proportionality must be viewed “through the lens of the new rules” ([70]) and that it was a significant error of law that the tribunal had not attempted to do so ([74]). Thus, the cases relied on by the FTT both confirmed the importance of the Rules in the overall article 8 assessment.
40. The FTT’s final self-directions about the relationship between the Rules and article 8 followed at [22]-[23] and were to MM (Lebanon) v SSHD [2017] UKSC 10 at [60] and Rhuppiah at [4]. The particular principle that the FTT took from these two cases was that section 6 of the Human Rights Act 1998 required the respondent to conduct a “full merits-based assessment” in each individual case, even where the requirements of the “new rules” are not met. There is no misdirection in law here, as Section 6 requires the same from the Tribunal (see, e,g, CAO at [59]).
41. Self-directions about the best interests of children follow, which I will address in my consideration of Grounds Two and Three.
42. At [27], the FTT states that it “Must consider the following questions:”
“27.1 Is it private or family life, or both?
“27.2 What factors and evidence are relied upon?
“27.3 Why is the appellant said to meet the threshold?”
43. The FTT then confirmed that it had applied the five-step test propounded by Lord Bingham in Razgar, R (on the Application of) v SSHD [2004] UKHL 27. It began with giving reasons for finding that the relationship between C and her uncle met the legal threshold for being considered “family life” for the purposes of the article 8 analysis. As noted above, the respondent’s challenge to that finding has been unsuccessful.
44. The FTT’s next step was to remind itself that the “character and intensity of family life” affects the proportionality assessment. Various caselaw was cited and Huang was identified as the “most authoritative guidance”, in accordance with the lead judgment in Patel & Ors v SSHD [2013] UKSC 72. Further caselaw was cited to the effect that the question is whether “a fair balance has been struck between the rights of the individual and the interests of the community” and that this must be judged according to the prevailing circumstances at the time of the decision. Here, as at [22]-[23] the cases cited are not the most obvious ones; they are either from outside the immigration context or involve challenges to the lawfulness of the Rules themselves. Again, however, the principles derived from these cases were correctly identified and are applicable in this context, and the respondent has pointed to no misdirection in law.
45. A consideration of the facts of this case followed at [39]-[47], which I will address below in my consideration of Grounds Two and Three. The FTT then directed itself again to legal principles regarding the best interests and rights of children as protected by the UN Convention on the Rights of the Child and the respondent’s duties under Section 55 of the Borders Citizenship and Immigration Act 2009: [48]-[52].
46. At [53] and [55]-[56], FTT directed itself that it was required to take into account the impact of the challenged decision on all members of the family and that “the facts of the particular case are crucial.”
47. In between, at [54], the FTT cited Huang at [18]:
“...Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant....”
48. At [57], the FTT summarised the relevant legal principles in its own words:
“The Rules are intended to fill the policy vacuum by setting out the respondent’s position on proportionality and to meet the democratic deficit by seeking Parliament’s agreement to her policy. The intention is that the Rules will state how the balance should be struck between the public interest and individual rights, taking into account relevant case law, and thereby providing for a consistent and fair decision-making process. It is clear that art. 8 does not exist to enable a ready means by which the requirements of the Rules can be circumvented or overcome. Further, it does not exist to confer a choice as to where and with whom one lives. That said, there will be cases where, on the facts, the impact of the decision upon the family life enjoyed as described in Huang is disproportionate to the legitimate aim of immigration control. The issue is whether this is such a case (i.e., whether the decision prejudices private/family life in a manner sufficiently serious to amount to a breach of the fundamental right protected by art. 8). I find that this is such a case.”
49. The excerpt from Nagre and the reference to the “gap” in the Rules followed. I consider that there is nothing in the words the FTT used or in the structure of the decision overall, as outlined above, that suggests that the FTT treated the “gap” in the Rules as weighing the appellant’s favour. On the contrary, the emphasis was consistently on the transformation in approach wrought by the “new rules” implemented in 2012, by which the respondent set out her policy about where the balance between competing public and private interests lies in most cases. The entire point of the discussion was to acknowledge that the Rules must be given considerable weight in the article 8 assessment, in contrast to prior to 2012, when article 8 assessments were conducted entirely outside the Rules. The FTT also specifically acknowledged that article 8 cannot be used as a “ready means” to circumvent or overcome the Rules. The ultimate questions was whether, in a particular case, the impact of the decision on family life was sufficiently serious to outweigh the legitimate aim of immigration control. There is no error here.
50. The FTT cited an unusually wide range of cases as underlying this approach. Many are more than a decade old, and over time, more recent cases have expressed the same principles more simply. As Mr Spurling acknowledged, in some cases the principles, although correct in law, are taken from cases very different to this one, most notably, where the FTT relies on cases challenging the lawfulness of the Rules themselves. Other FTT judges might have been content to rely on Agyarko, as the respondent did in her review, or perhaps a few other more recent cases. Nonetheless, as noted above, the respondent has not pointed to any misdirection in law other than treating the “gap” in the Rules as a factor weighing the appellant’s favour. For the reasons set out above, I do not agree that this is what the FTT did. This may not be clear when the reference to a “gap” in the Rules is read in isolation, but it is beyond dispute that single words or phrases, taken out of context, cannot make out an error of law. The reasoning as a whole is what matters, and there is no material error of law in the approach taken towards the Rules, when the reasoning is read as a whole.
51. The respondent raised a second complaint under Ground One in her skeleton argument. This is that the FTT cannot have actually be applying the standard of “unjustifiably harsh consequences” because the evidence before it was only capable of demonstrating that the appellant’s absence was having a “very significant impact” on C, and that this is a much lower standard.
52. I consider that this is a rationality challenge. The respondent expressly acknowledges in her skeleton argument that the FTT had referred itself to the correct standard of “unjustifiably harsh consequences” at [8]-[9] (and again at [12] and [18], as Mr Spurling pointed out). She asserts, however, that the only evidence relied on was the ISW report, and that the contents of the report could not rationally be found to meet that standard.
53. This argument should not have been raised in the skeleton argument, because the respondent did not apply for permission to appeal on irrationality grounds. Moreover, the respondent’s argument relies on one short phrase from the ISW report, taken out of context. The long excerpt from the report relied on by the FTT set out the ISW’s conclusion that the appellant’s absence was undermining C’s ability to develop a close attachment to her mother (whom she saw as having abandoned her when she was not yet three years old) and preventing her from learning to trust adults more general, as well as inhibiting her education development at a key stage (she was functioning at the level of a child in Year 3, although she was in Year 5, and her teacher had serious and specific concerns about what would happen in secondary school). Her background of seeming abandonment by her mother, separation from all of the other caring adults in her family, her father’s severe mental illness, and the circumstances in which she fled Afghanistan after the return to power of the Taliban were all taken into account. The ISW’s full conclusion was:
“The continued separation of [the appellant] and [C] poses a very significant risk that she will suffer from significant long-term harm to her emotional development/mental health, as well as long term, if not permanent harm, to her educational development and her social development.”
54. It was reasonably open to the FTT to consider that this outcome supported a finding of “unjustifiably harsh consequences”, particularly given the weight that must be given to the best interests of children in the UK in the article 8 assessment.
55. For these reasons, Ground One is not made out.
Ground Two
56. As noted above, there are four potential errors of law identified under Ground Two. The first is that the FTT “did not structure the reasoning around the Razgar test.” This is not made out. The FTT referred explicitly to the Razgar test at [8] and again at [28] and did proceed in accordance with Razgar by first establishing that article 8 family life was engaged, and then by assessing proportionality, which it identified as the “material” question. Given that there was no dispute over whether the appellant met the Rules, there was no error in failing to consider whether the respondent’s decision was in pursuit of a legitimate aim or in accordance with the law; the answer to both questions was obviously yes. While the FTT could have given reasons for finding that the interference with any family life between C and the appellant was significant enough to engage the protection of article 8, it had found that they had been living together in a quasi parent-child relationship between 2016 and 2022 and that the respondent had originally agreed that they would travel to the UK together. It was transparently only the refusal to facilitate the appellant’s travel to the UK in some other way after the chaotic end of Operation Pitting that had separated them. Under these circumstances, the finding that the consequences of the decision were sufficiently serious to engage article 8 was an obvious one, and required no separate explanation.
57. As to whether it was “unclear” what weight was attached to the competing considerations, four competing considerations were identified. Having read the decision with care I find that it the relative weight attached to them was sufficiently clear, as were the reasons they were given that weight.
58. The first consideration was the appellant’s inability to meet the Immigration Rules, which was identified at [15]-[17]. After the consideration was identified, a long and detailed consideration of the caselaw followed, in which it was set out that it was due considerable (but not determinative) weight in the article 8 assessment ([20]-[23]). The weight to be placed on the Immigration Rules was thus determined by a careful consideration of the general principles applicable in all cases arising since July 2012. There was no error in not identifying additional public interest factors related to immigration control that arose out of the specific facts of this case. Nowhere does the respondent point to any such additional factors, either in the refusal decision or the respondent’s review. The respondent points only to the appellant’s failure to meet the rules, and the FTT acknowledged this consideration and correctly identified the weight it was required to give it.
59. The next consideration was C’s best interests. The FTT directed itself to Section 55, ZH (Tanzania) v SSHD [2011] UKSC 4, and Zoumbas. It drew from this that a child’s best interests are “an integral part of the proportionality assessment under art. 8”, that nationality was a significant factor but “not the sole consideration” (C is a British national), and that a child’s best interests can be outweighed by other public interest factors. A “properly informed evaluation of all material facts and considerations” was required. This is an accurate and adequate description of how to determine where a child’s best interests lie and the weight that, in general, should be placed on them in an article 8 assessment.
60. The next consideration that was identified was the family life between the appellant and C, and at [35] the FTT directed itself that how much weight it attracted depended on its “character and intensity.”
61. In order to determine how much weight to put on C’s best interests and on her family life with the appellant, a careful fact-specific evaluation was obviously required; the caselaw that the FTT cited said as much. This evaluation began at [39] with the fact that C had been due to be brought from Afghanistan under Operation Pitting, travelling together with the appellant, but they had been unable to make it to the airport due to the security situation. By this point, the appellant had been living with the appellant ever since her mother had left Afghanistan five years before. He had later travelled with her to the UAE. “The appellant was critical to ensuring that she remained safe and was able to travel to the United Kingdom.” The FTT then gives this history, taken overall, some weight in the appellant’s favour because it is mentioned twice, at [39] and again at [59], but both times only briefly.
62. I cannot see any error in the FTT having failed to specify more precisely what it was about this family history that meant it was worthy of some weight. Huang confirms that family history is a relevant factor, and it was obviously open to the FTT to put weight on these facts. They describe a family life forged under difficult and traumatic circumstances, in which the appellant had played a vital role in keeping C safe, and which was not interrupted by choice.
63. The FTT then considered the expert ISW evidence. It directed itself to the relevant caselaw on expert reports ([40]) and noted the respondent’s reviews criticising the ISW reports but also that the Presenting Officer had raised no further criticisms of the reports at the hearing. It gave clear reasons for deciding to place reliance on the reports: [41]. Three pages of excerpts from the most up-to-date report followed at [42]-[43] and [45]. At [44], the FTT noted that the two earlier reports were “along the same lines.” Finally, at [46]-[47], the FTT gave reasons for putting weight on the opinions expressed by C’s teacher and also addressed the differences in what the various ISW reports had said about C’s relationship with her mother. Although the FTT did not say this in terms, these final considerations spoke directly to the criticism of the reports expressed in the respondent’s reviews.
64. In her skeleton argument, the appellant criticises the FTT for not expressly saying that it is the ISW report that lead to the conclusion that excluding the appellant from the UK would have unjustifiably harsh consequences. Again, FTT judges are not required to set out every step in their reasoning expressly, and I consider it quite clear from the structure and content of the decision that the FTT put great weight on the ISW report. There were three ISW reports before the FTT, and it confirmed that it had read them all ([41]) and noted the similarities and differences between them (see: [44] and [47]). It acknowledged and responded to the respondent’s criticisms of the reports, and gave reasons for nonetheless finding them reliable. It then set out three pages of detailed excerpts from the most recent report. These excerpts are not unconsidered block quotes. They are not consecutive, and hence clearly selected as material to the decision. They end with the ISW’s strongly worded conclusion quoted above. Read as a whole, it is clear that the FTT is explaining, step-by-step, why it decided to accept the ISW’s conclusion that the separation between C and the appellant posed a “very significant risk” that she would “suffer from significant long-term harm to her emotional development/mental health, as well as long term, if not permanent harm, to her educational development and her social development.” As to what weight to give it in the overall assessment, that had already been explained above in general terms, with the citations to ZH (Tanzania) and Zoumbas.
65. These factual findings were followed directly by a return to the underlying principles outlined before the factual findings were made. The conclusion at [57] that “this is […] a case” in which the impact of the decision on family life is disproportionate to the legitimate aim of immigration control only appears devoid of reasoning if divorced from everything that came before it. When read – as it must be - in the context of the determination as a whole, it is sufficiently clear: the considerable public interest in immigration control that arises from the appellant’s inability to meet the rules is outweighed by (i) the strong family life between the appellant and C, a family life that was developed when she was effectively abandoned by her parents and in which the appellant had played a key role by acting as a father figure and ensuring her safety under dangerous circumstances, and which was not disrupted by choice and (ii) the very significant and potentially long-term adverse impact of the separation on the child.
66. The final complaint made under this ground is about the FTT’s failure to engage with the mandatory public interest considerations set out at section 117B. I note as a preliminary matter that the only section 117B factor relied on by the respondent in the refusal decision and the respondent’s reviews was the public interest in immigration control (section 117B(1)). Mr Parvar accepted this after considering thee documents during the hearing. The respondent did not raise any concerns about whether the appellant spoke English (section 117B(2)) or would be financially independent (section 117B(3)). Neither section 117B(4) of 117B(5) is relevant, because the family life between C and the appellant was neither established nor developed while anyone was in the UK with a precarious immigration status.
67. The respondent’s silence did not mean that the FTT did not have to engage with the mandatory statutory considerations, however, and it confirmed it had done so at [10] and [60], with a further reference to the role of 117B in the analysis at [15]. The respondent does not complain in the grounds of her skeleton argument that the FTT misunderstood what Section 117B required. She further acknowledges in the skeleton argument that an FTT judge could “permissibly” have decided that the impact on family life in this case outweighed the countervailing public interest considerations set out at section 117B. The complaint is that this is not clearly stated in terms in the determination.
68. I consider that here, again, it is necessary to bear in mind the principles set out above at [27] and [28] of this decision. The FTT was clearly aware of what section 117B required, having referred to it three times. As set out in the discussion above, it devoted a considerable portion of the decision to the weight to be attached to the Immigration Rules, and it reminded itself at key points of the importance of the public interest in effective immigration control. It thus dealt directly with the one section 117B factor that the respondent had treated as material and made submissions on.
69. As Mr Spurling pointed out and Mr Parvar acknowledged, the appellant’s representatives had addressed the two potentially relevant section 117B factors that the respondent had overlooked in their skeleton argument below. They had asserted that that the appellant was “educated to degree level, speaks some English, is highly motivated and would be joining wider family who are well established in the UK.” There is no indication that the respondent ever disputed these assertions and Mr Spurling suggested that there had been evidence in support of them before the FTT, although he did not have it immediately to hand. I informed the parties that I would look for this evidence in the bundle, and that this was likely to be relevant to whether I concluded that the FTT had erred by not dealing with the English language and financial independence issues explicitly. I explained that if the evidence showed that neither section 117B(2) or 117B(3) in fact weighed against the appellant, I was unlikely to find it material that the FTT had failed to set this out, especially when the respondent had not relied on either consideration.
70. Mr Spurling was correct. These submissions were supported by the evidence before the FTT. In his witness statements of 17 January 2023 and 2 August 2024, the appellant referred to having taught C English when she was a child, while in his witness statements of 18 November 2021 and 17 January 2023, he described several telephone conversations he held in English in August 2021, with men who introduced themselves as representing the British authorities. Moreover, this evidence has not been challenged. Nowhere in the refusal decision or the respondent’s review did the respondent dispute the appellant’s credibility, and when the FTT directed her to put any challenges to the appellant in writing for him to answer prior in writing to the hearing (as it was not possible for him to give evidence from the UAE), she declined to do so. Given that the unchallenged evidence was that the appellant was able to communicate in English, this was a neutral factor under section 117B. It was therefore not a material factor that the FtT was required to deal with explicitly.
71. The appellant further said in his witness statement of 17 January 2023 that he had obtained a Bachelor’s Degree in Business Administration at Dunya University in Kabul and this has not been disputed by the respondent either. He was born in 1997 and 27 years old at the date of the hearing, and there is no evidence of any significant health issues. There is therefore no reason that the FTT should not have accepted the submission that as he was educated, highly motivated and would be supported by family on arrival, he would be able to become financially independent. This, too, is therefore a neutral factor and not material enough to the decision to require express consideration, especially where, again, the respondent had never relied on it.
72. Even if, in the alternative, the FTT was required to run through a checklist of all Section 117B factors regardless of whether they were material to the decision or raised by the respondent, any error in this regard cannot have been material because on the evidence before it, the factors that were overlooked would not have weighed against the appellant and therefore could not have affected the decision to allow the appeal.
73. For these reasons, Ground Two is not made out.
Ground Three
74. For the reasons given above at [20]. I consider that only two aspects of the respondent’s challenges to the best interest assessment require consideration.
75. The first is that the FTT placed undue weight on historic caregiving in Afghanistan and the UAE rather than C’s present and future circumstances in the UK. This is plainly inaccurate. The long excerpt from the ISW report and the discussion of C’s teacher’s concerns both deal in detail with C’s present and future circumstances in the UK. There is nothing in the evidence selected by the FTT to indicate that past caregiving was given more weight than the current and likely future consequences of ongoing separation.
76. The second is that the FTT treated C’s best interests as determinative. The respondent accepts in her skeleton argument that the FTT properly self-directed that a child’s best interests can be outweighed by other public interest considerations at [25]. Nor has she pointed to anything said elsewhere in the decision that is inconsistent with this self-direction. She relies solely on the submissions made under Ground 2, that the FTT failed to explicitly mention countervailing public interest considerations, and submits that this was because C’s best interests were treated as determinative.
77. To the extent that the respondent is repeating the same arguments made under Ground 2, they fail for the same reasons. Based on the evidence before the FTT and the submissions of both parties, the only countervailing public interest that arose in this case was the public interest in effective immigration control. That was dealt with by the FTT at length. If the FTT had treated C’s best interests as determinative, there would have been no need for the extensive consideration of that issue. Nor would there have been any need to consider other factors weighing in the appellant’s favour, such as the family history or the nature and quality of the family life between C and the appellant.
78. For these reasons, the decision of the FTT contained no material errors of law requiring it to be set aside.

Notice of Decision
The decision of the First-tier Tribunal dated 15 August 2025 contained no material errors of law and is upheld, with the consequence that the appellant’s appeal against the respondent’s decision to refuse him entry clearance to the UK is allowed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 November 2025