Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No’s: UI-2025-004240
UI-2025-004241
First-tier Tribunal No: HU/56110/2024
HU/57137/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of May 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

MIRZA SARWAR BAIG & NAHEED SARWAR
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Forrest, counsel
For the Respondent: Ms Arif, Senior Presenting Officer

Heard at Edinburgh on 23 April 2026

DECISION AND REASONS
Introduction
1. In a decision dated 6 February 2026, the decision of the First-tier Tribunal to allow these appeals on human rights grounds was set aside because it involved material errors of law. It was decided that the appropriate procedural course was to remake the underlying appeal decision after a further hearing. At the remaking hearing, I heard evidence from the first appellant, Mr Baig, and his son, Mr Sarwar. The second appellant attended the hearing but was not in a fit state to give evidence due to symptoms of dementia.
2. The elderly appellants, who have a range of physical and mental health conditions, contend that it would amount to a breach of their Article 8 human rights for them to return to Pakistan thereby separating them from their UK-based children, and Mr Sarwar in particular, who currently care for them. The respondent’s case is that any private life they have acquired in the UK was accumulated while their status was always precarious after arriving in the UK as visitors. It is further suggested that neither the appellants nor any members of their family would suffer unjustifiably harsh consequences as a result of their removal such that the removal decisions would be a disproportionate interference with their Article 8 rights.
Background
3. The broad immigration history and underlying facts were not controversial between the parties. Read together, the decision of the First-tier Tribunal (‘FTT’) and the error of law decision confer the essential factual foundations on which the appeals fall to be decided. While the error of law decision did not expressly preserve the FTT findings of fact, the parties were agreed that given the narrow scope of the basis on which it was found that the decision was in error, there was no reason to go behind much of the FTT’s factual assessment of the appellants’ circumstances. The error of law decision was founded on two matters. First, that the FTT had not assessed whether the appellants could secure the care they need in a part of Pakistan other than their home area. Second, the FTT judge had erred in concluding that Mr Sarwar would suffer a deterioration in his mental health if his parents were required to return to Pakistan. The ultimate question remains to be remade against this factual backdrop of whether the refusal decisions amount to disproportionate interferences with engaged Article 8 rights because they would bring about unjustifiably harsh consequences. For these reasons, the following factual findings of the FTT stand undisturbed notwithstanding the error of law decision:
[13] I heard evidence from the first Appellant who gave his evidence in Urdu through an Urdu interpreter whom he confirmed he understood. In examination-in-chief he adopted his statement dated 19 March 2025 as true. (Pages 32-33 of “SB1”).
[14] In summary, his evidence is that he has a positive immigration history. He came to the UK on 23 June 2022 to take his wife back to Pakistan on 9 October 2022. However, during his visit he suffered a heart attack and they were unable to return as he is solely responsible for caring for his wife in Pakistan. Due to his deteriorating health after major surgery and his wife’s medical condition, they have both become vulnerable and dependent on family support for their daily care and well-being. They are living with their son, Sohail Sarwar and his family. They have also have another son living in Glasgow with his family. Their son in Pakistan is unwilling to provide the necessary care and support for them and is both neglectful and dismissive of his responsibilities. Their two daughters in Pakistan are married and live with their in-law families. Due to cultural traditions it is impossible for them to provide the care and support they need.
[15] The second Appellant gave her evidence in Urdu through an Urdu interpreter whom she confirmed she understood. In examination-in-chief she adopted her statement dated 19 March 2025 as true. (Pages 47-8 of “SB2”) Her evidence largely reiterated the first Appellant’s evidence. Further, that since being in the UK, she required surgery on 8 March 2023 to replace her pacemaker generator and that she suffers from dementia which is a deteriorating condition.
[16] I also heard evidence from the Appellants Sponsor and son, Sohail Sarwar. In examination-in-chief he adopted his statement dated 19 March 2025 as true. (Pages 35-7 & 50-2 of “SB1” & “SB2”) In essence, his evidence echoed that of the Appellants and provided further detail about their health conditions, their family circumstances and his willingness to provide the care and support they both need.
[…]
[20] Overall, I found the first Appellant and Sponsor gave credible evidence which was consistent, reasonably detailed and supported by medical evidence. Whilst the second Appellant’s evidence in chief was also consistent with their evidence, I have attached less weight to it as it was untested. This credibility finding has been taken account of in my findings in fact.
[…]
[22] I found that the Appellants have formed a private life in the UK in terms of Article 8 (1) of the “ECHR.” This is because of the duration they have resided in the UK and their engagement with health care services.
[23] I further found that the Appellants have established a family life with the Sponsor and family in terms of Article 8 (1) of the “ECHR.” This is because I am satisfied that on these facts and in applying Kugathas v SSHD [2003] EWCA Civ 31, the Appellants relationship with them goes beyond normal emotional ties.
[24] In reaching this view, I accepted the Appellants and Sponsor’s evidence as credible that they have both been living with him and his family since June 2022. They have become increasingly dependent on them and their other son and family residing in Glasgow for their care, emotional needs and financial support. This is largely due to the Appellants medical conditions that are corroborated by the documentary evidence produced and which are discussed further below.
[…]
[28] I found the following factors weighed in favour of the Appellants and Sponsor’s private and family life.
[29] I found that the Appellants have both been living with the Sponsor and his family since June 2022 and that during their lawful period of leave as visitors, they applied for a fee waiver for their human rights applications on 15 October 2022, which was granted on 10 January 2023 before their applications were submitted on 16 January 2023. (Pages 59 & 58 of “SB1” & “SB2”).
[30] I am satisfied that there is reliable medical evidence from the Golden Jubilee National Hospital in support of the first Appellant’s medical conditions and treatment. This stated that he was admitted to hospital on 9 September 2022 after suffering a heart attack where he underwent an emergency stent procedure. Following further investigations, he had coronary artery bypass surgery and was discharged from hospital with prescribed medication on 12 October 2022. He also suffers from asthma and diabetes. (Pages 82-348 of “SB1”).
[31] I am further satisfied there is reliable medical evidence produced from Dr Tiwari of the Glasgow Private Clinic in respect of the second Appellant’s medical conditions and the impact of them. Following consultations on 10 September 2022 and 1 June 2024, Dr Tiwari confirmed that she has a history of Alzheimer’s dementia, cardiac problems, type 2 diabetes and hypertension. She has a very severe cognitive impairment which is likely due to Alzheimer’s dementia. Her short term memory is very poor. She does not have the capacity to make any decisions and requires assistance with personal care and regular diet prompting. He considers this is unlikely to ever improve and cognitive enhancers would be of minimal benefit due to the severity of her condition. He is of the opinion that she would not be fit to travel back to Pakistan alone and that her husband, who used to be her main carer, is now not capable of providing this care due to his own ill-health. (Pages 54-5 & 92-3 of “SB2”).
[32] In view of the evidence before me, I accepted that the first Appellant is unable to manage the care the second Appellant requires by himself due to his own aging and medical conditions, and that he and his wife have therefore become physically and emotional dependent on the Sponsor and his family for their care and everyday needs.
[33] In this regard, I accepted the first Appellant’s consistent evidence that his son in Pakistan is neglectful and unwilling to care for them, which he provided further detail about in cross examination. I also accepted his consistent evidence that due to cultural traditions, their two daughters in Pakistan are unable to care for them because they live with and care for their husband’s families who would not tolerate that, and they cannot financially afford to provide for their private care. This evidence was also corroborated by the Sponsor.
[34] I further noted the first Appellant’s evidence in cross examination that any medical treatment available to him in Pakistan is 4-5 hours away which is too far for him to travel now and that there is no nursing home in Mirpur.
4. In addition to the above, I heard oral evidence from Mr Baig and his son, Mr Sarwar. Both witnesses were cross-examined.
5. Mr Baig was asked about whether he had made any enquiries about care options in Pakistan outside of his home area. He confirmed that he had made no such enquiries but expressed concern about the quality of care available in Pakistan drawing on his experience of being a patient in hospital and encountering somewhat harsh treatment from a medical professional. He also expressed considerable doubt as to whether he would be able to relocate on return. It was clear that his firm preference was to continue being cared for by his family in the UK. In answer to my clarifying questions, he confirmed that he has siblings who reside in Sialkot, Gujranwala and Faisalabad.
6. Mr Sarwar gave evidence that he had searched through care options but he was firmly of the view that his parents could only be adequately cared for by loved ones. He further explained that while there were care facilities in Pakistan, there were no specialised care homes which could cater for his mother’s dementia.
7. The only additional written evidence provided for the purposes of the remaking hearing was a further letter from Dr Tiwari in which he stated the following:
This lady last consulted on 01/06/2024 and came back for a repeat cognitive assessment today on 4/3/25. Mrs. Sarwar has been living in the UK for 4 years now. She has a history of Alzheimer's dementia, cardiac failure, type 2 diabetes, and hypertension.
She has had ongoing problems with memory. Her cognition has worsened further as expected and she now scores 0/10 on an AMT/10 sore. She has had relatively stable physical health but is unable to manage most activities of daily living. She has to live in a ground floor flat as she has great difficulty climbing stairs and she requires regular help dressing herself and with personal care such as showering or bathing. Speech was minimal today and she is clearly very confused even without direct questioning.
On examination today there was again no indication of significant acute physical cause for cognitive impairment. When I saw her 2 years ago in 2024 her abbreviated mental test was 0/10 and when I saw her in 2022 this was 2/10, when she only got her age and home address.
In my professional opinion Mrs. Sarwar clearly still does not have the capacity to make any decisions and is now even requiring help with some aspects of personal care and regular diet prompting. Prognostically this remains unlikely to ever improve in the future - her Alzheimer's is now severe enough that even cognitive enhancers would be of minimal benefit as I discussed with her son 2 years ago and this remains the case today.
This score indicates that she has very severe cognitive impairment and my opinion is that this is likely due to Alzheimer's Dementia. She has had an appeal for her application to stay in the UK rather than go back to Pakistan.
She has a diagnosis of severe Alzheimer's Dementia, this is likely to be permanent, no treatment can be offered at this stage, I do not think she would be fit to travel back to Pakistan alone even with support from an airline due to her cognitive impairment and intermittent agitation.
I would very much appreciate if this could be taken into account with regard to planning her future residential status.
Of note, her husband is also still currently in the UK, he used to be her main carer in Pakistan, but is now not capable of providing this care also due to his own ill health since their son informs me that he has required cardiac surgery in 2022.
Appeal to the Upper Tribunal
8. At the remaking hearing, I heard oral evidence from Mr Baig and Mr Sarwar. I then heard oral submissions from both parties. I address any evidence and submissions of significance in the discussion section below.
9. The parties agreed that the following principal controversial issues fell to be decided in the appeal:
a. Have the appellants established that they could not obtain the care they require in a part of Pakistan other than their home area of Mirpur?
b. Are there any unjustifiably harsh consequences which would render the appellants’ removal to Pakistan disproportionate under Article 8 of the ECHR?
Legal Framework
10. Article 8 of the ECHR provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
11. The question is whether the refusal breaches the appellant’s right to respect for private and family life under Article 8 ECHR. That right is qualified. The appellant must establish on the balance of probabilities the factual circumstances on which they rely and that Article 8 (1) is engaged. If it is, then I must decide whether the interference with the appellant’s right is justified under Article 8 (2). If an appellant does not meet the immigration rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the appellant.
12. As recently confirmed in SSHD v IA & Others [2025] EWCA Civ 1516; [2026] H.R.L.R. 4, R (Agyarko) v SSHD [2017] 1 W.L.R. 823 continues to function as the analytical touchstone for considering Article 8 claims which can only succeed outside of the Immigration Rules. It is worth reminding oneself of how Lord Reed distilled the relevant legal principles when a tribunal is confronted with such a case:
[46] […] [I]t is important to appreciate that the Rules are not simply the product of a legal analysis: they are not intended to be a summary of the Strasbourg case law on article 8. As was explained at para 10 above, they are statements of the practice to be followed, which are approved by Parliament, and are based on the Secretary of State's policy as to how individual rights under article 8 should be balanced against the competing public interests. 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. The Secretary of State is in principle entitled to have a policy of the kind which underpins the Rules. While the European court has provided guidance as to factors which should be taken into account, it has acknowledged that the weight to be attached to the competing considerations, in striking a fair balance, falls within the margin of appreciation of the national authorities, subject to supervision at the European level. The margin of appreciation of national authorities is not unlimited, but it is nevertheless real and important. Immigration control is an intensely political issue, on which differing views are held within the contracting states, and as between those states. The ECHR has therefore to be applied in a manner which is capable of accommodating different approaches, within limits. Under the constitutional arrangements existing within the UK, the courts can review the compatibility of decision-making in relation to immigration with the Convention rights, but the authorities responsible for determining policy in relation to immigration, within the limits of the national margin of appreciation, are the Secretary of State and Parliament.
[47] The Rules therefore reflect the responsible Minister's assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. The courts can review that general assessment in the event that the decision-making process is challenged as being incompatible with Convention rights or based on an erroneous understanding of the law, but they have to bear in mind the Secretary of State's constitutional responsibility for policy in this area, and the endorsement of the Rules by Parliament. It is also the function of the courts to consider individual cases which come before them on appeal or by way of judicial review, 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. This was explained in Ali at paras 44–46, 50 and 53.
[…]
[50] […] As the instruction makes clear, “precariousness” is not a preliminary hurdle to be overcome. Rather, the fact that family life has been established by an applicant in the full knowledge that his stay in the UK was unlawful or precarious affects the weight to be attached to it in the balancing exercise.
[…]
[56] […] Rather, as the Lord Dyson MR made clear, the test is one of proportionality. The reference to exceptional circumstances in the European case law means that, in cases involving precarious family life, “something very compelling … is required to outweigh the public interest”, applying a proportionality test. […]
[57] That approach is also appropriate when a court or tribunal is considering whether a refusal of leave to remain is compatible with article 8 in the context of precarious family life. Ultimately, it has to decide whether the refusal is proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life. In doing so, it should give appropriate weight to the Secretary of State's policy, expressed in the Rules and the Instructions, that the public interest in immigration control can be outweighed, when considering an application for leave to remain brought by a person in the UK in breach of immigration laws, only where there are “insurmountable obstacles” or “exceptional circumstances” as defined. It must also consider all factors relevant to the specific case in question, including, where relevant, the matters discussed in paras 51–52 above. The critical issue will generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.
13. The parties were agreed that the appeals could only succeed outside of the Immigration Rules because there is not a scheme within the rules to permit the appellants to remain. However, it was also agreed that there are necessarily some substantive parallels with Appendix Adult Dependent Relatives. Although this scheme only relates to applications for entry clearance, the substantive requirements overlap considerably with a case of this nature where the centrepiece of the claim is that a relative who requires care to cater for their physical or mental health needs and it is said that this can only be reasonably provided by family members based in the UK. Where relevant, the Appendix ADR rules provide:
ADR 5.1. The applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks.
ADR 5.2. Where the application is for entry clearance, the applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:
(a) the care is not available and there is no person in that country who can reasonably provide it: or
(b) the care is not affordable.
14. The lawfulness of this part of the Immigration Rules was considered by the Court of Appeal in BritCits v SSHD [2017] 1 W.L.R. 3345 where the following observations were made by Sir Terence Etherington MR at [59]:
[59] Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.
15. The appellants bear the burden of substantiating the primary facts of the appeal. The standard they must meet is the balance of probabilities.
Discussion
16. As set out above, the ultimate question which must be resolved in these appeals is whether the refusal decisions amount to disproportionate interferences with the appellants’ Article 8 rights. As noted in the error of law decision, an important factual question which informs the analysis of the ultimate question is whether the appellants can reasonably obtain the care they need in Pakistan. This resonates with the provisions of the Immigration Rules they would need to meet if they were in Pakistan seeking entry clearance on this basis and gives a sense of how the Secretary of State has balanced the applicable policy considerations in this field. It is important to note that the Appendix ADR scheme is only available to those seeking entry clearance and is not available to those who are already in the UK and seeking leave to remain. The fact that this scheme only applies to those seeking entry clearance strongly suggests that the broad policy objective of the Secretary of State in settling these provisions was to promote such applications being made from the home country as opposed to being advanced after the applicant had already arrived in the UK by other means.
17. It could not have been clearer to the parties that a critical factual question to be resolved on remaking the appeals was whether reasonable and appropriate care would be available in a part of Pakistan other than their home area. I therefore found it surprising that the appellants had not sought to rely on any written evidence tending to show meaningful enquiries about whether such an option might be viable. There was no documentary evidence of internet searches or of phone calls being made to care providers in Pakistan. Nor was there anything to suggest that Mr Baig’s siblings had been asked about their experiences of receiving care for their health conditions in different parts of the country. Mr Baig was frank in his oral evidence that he had made no such enquiries and had little confidence in the Pakistani health system given his negative experiences in the past. Mr Sarwar asserted that he had made enquiries and that the specialised care his mother would need would not be available. While I do not doubt that Mr Sarwar is well-intentioned and only wishes the best for his parents, these unsupported assertions fell a considerable distance short of the kind of evidence which would be needed to establish that such care was not available anywhere beyond the home area in Pakistan. The seemingly token attempts to make enquiries and lack of any supporting material to show a meaningful and good faith effort to explore the options available on return coheres with the family’s desire for the necessary care to be provided by the family in the UK. In my judgement, a serious attempt was not made to canvass what care options might be available in Pakistan.
18. I do not doubt the findings made by the FTT in relation to the appellants’ circumstances. They plainly have a range of physical and cognitive health conditions which mean that as a couple, they require long term personal care to perform everyday tasks. However, for the reasons I have explained above, I have the most serious of doubts as to whether the appellants are unable to obtain the care they need in any part of Pakistan.
19. I must perform a balancing exercise of the competing factors. On the appellants’ side of the scales, I take into account the factual analysis of the FTT which reveals that there was not a cynical attempt to circumvent the rules after they entered the UK as visitors and that matters were overtaken by medical events they had not anticipated. I also have no doubt that it will be an emotional hardship for all members of the family if the appellants are not cared for by loving family members in accordance with strong cultural norms. A close family life has been established since 2022 when the appellants became dependent on their family in the UK. All of these factors attract weight in the balancing exercise.
20. On the public interest side of the scales, there are two factors which attract considerable weight. Firstly, the claims do not meet the Immigration Rules and demonstrably fall short of the closest scheme within the rules which would apply to a similar case were the applications made from Pakistan. Secondly, while the appellants’ conduct cannot be described as being in any way cynical or in bad faith, it remains the case that the engaged family life which has developed since their arrival in the UK as visitors has always been precarious. Agyarko makes it clear that this has a meaningful bearing on the strength of the public interest and that only a very compelling Article 8 claim could outweigh the legitimate interest in maintaining effective immigration controls. Considering the remaining matters of s.117B of the 2002 Act, it must also be noted that neither appellant speaks English which undermines their ability to effectively integrate within the UK. I saw nothing to suggest that they would not be financially independent, but this is a neutral factor.
21. The keystone of the appellants’ claim is that they would suffer unjustifiably harsh consequences if they were not permitted to remain with their family in the UK. There would have been considerably more force to this contention if they had established that they were reasonably unable to obtain the care they need in any part of Pakistan. Without evidence to make good that proposition, what is left is the prospect that meaningful and good faith efforts will need to be made to source the care they need in a part of Pakistan where such care is available. The understandable and fervent desire of the family to continue to provide the necessary care without recourse to third parties in accordance with strong cultural norms does not amount to exceptional circumstances in occasioning unjustifiably harsh consequences.
22. Overall, there are no unjustifiably harsh consequences which will flow from maintaining the refusal decisions which reflected the strong public interest which applies in a case where the engaged family life rights were acquired when the appellants were in the UK on a precarious footing and where the Immigration Rules were not met.

Notice of Decision
The appeals are dismissed on Article 8 human rights grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 April 2026