Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004493
First-tier Tribunal No: HU/56932/2024
LH/01924/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of June 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SH
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr M Parvar, Senior Presenting Officer, on 18 February 2026
Mr M Pugh, Senior Presenting Officer, on 24 April 2026
For the Respondent: Ms D Revill, counsel instructed by Ata & Co Solicitors, on both dates

Heard at Field House on 18 February and 24 April 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent to this appeal (who was the appellant before the First-tier Tribunal) is granted anonymity. No-one shall publish or reveal any information, including but not limited to her name and the names of other family members to whom this decision refers, likely to lead members of the public to identify her. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

To the sponsor
i. You want to bring SH to the United Kingdom and legally adopt her. The law says that first you must obtain a certificate of eligibility. The need to get a certificate is so important that even SH’s circumstances in Iran don’t justify overlooking it, so I have dismissed your appeal.
ii. If you had managed to get a certificate, or if you had proven that getting a certificate would be impossible or take too long, but that you would still provide SH with a safe home, then the decision would have likely been different. You should think very carefully about what you do next. The full reasons for my decision are as follows.
Background
1. SH is a 10 year old girl from Afghanistan who applied to come to the United Kingdom to live with a man I shall call the sponsor. The Secretary of State refused the application on 20 May 2024, an appeal against that decision was allowed by the First-tier Tribunal (FtT) on 29 July 2025.
2. The FtT set out the relevant factual background, none of which is challenged: (to help preserve SH’s anonymity, I have silently removed or amended some details)
3. The sponsor had a relationship in Afghanistan when he was much younger with a woman called M. They were in love, but she had an arranged marriage, and they did not meet again until 2015. In the meantime, the sponsor married his wife T, who was born in Kabul and is a British citizen. The sponsor came to the United Kingdom, and they have a teenage son. T also has an adult daughter from a previous relationship, Y. Both are British citizens.
4. The sponsor returned to Afghanistan for a brief period of time in 2015 when his relationship with T was facing difficulties. He met M again, who was staying with relatives, and her husband was away working. She did not have a good relationship with her husband, but she could not leave him. The sponsor and M had a relationship, and she then returned to her husband and her children. The sponsor returned to the United Kingdom and reconciled with T.
5. About four to five months later, M contacted the sponsor to advise him that she was pregnant with his child, and she remained living with her husband, who often worked away, until she could no longer hide the pregnancy. She went to stay with the sponsor’s parents for a month or so until the baby, SH, was born and returned to her family about a week later, leaving SH with the sponsor’s parents. SH was delivered at the sponsor’s parents’ home without anyone being aware.
6. The sponsor told his wife, T, about the pregnancy and they went to Afghanistan to see SH when she was forty days old. T accepted the situation, and she decided to treat SH as their own child. They provided financial support for SH, and T and their son would visit Afghanistan to visit SH every year, and the sponsor went on some occasions. They could not go more often because T is a medical doctor and runs a private clinic and also works for the NHS.
7. The sponsor and T made inquiries about bringing SH to the United Kingdom, but he was advised that because he had indefinite leave to remain, he could not do so, and SH had not been adopted by his wife.
8. The sponsor naturalised as a British citizen, and an application was made on 10/11/2023. The sponsor wanted to obtain DNA evidence, and he tried via his sister to contact M to provide her DNA, but his sister said that this was dangerous for her and was arousing suspicions. The DNA test was performed on 13/12/2023 with DNA from the sponsor and SH, and the result showed that the sponsor is not SH’s biological father. This did not change the relationship between the sponsor, T and SH, as they had always treated her as their biological daughter, and SH believes they are her biological parents.
10. SH was taken to Iran by the sponsor because there were concerns about her living with his elderly parents in an area heavily controlled by the Taliban. They were concerned that the Taliban may try to take her and force her into a marriage, as had happened to other young girls in the area. T’s daughter Y went to Iran to care for SH in the hope that she would come to the United Kingdom and Y could return to the United Kingdom to study for a PhD. SH and Y remain in Iran on visit visas without male support. SH attends school on a temporary basis and studies in the English language.
11. The sponsor needed to take SH back to Afghanistan to renew her visit visa so that she could remain in Iran. Y and SH recently faced a harrowing situation during the recent bombing of Iran by the USA and Israel. SH remains traumatised by the bombing, which reignited events that she had witnessed with the Taliban in Afghanistan.
The refusal decision
3. First, the Secretary of State refused the application because no medical report had been provided to show screening for tuberculosis as required by Appendix TB to the Immigration Rules.
4. The other requirements of the Immigration Rules were still considered. Because the sponsor is not SH’s biological father, para 297 of the Immigration Rules does not apply. The rules do also make provision for adoption, the definition of the word “parent” including:
“an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A (except that an adopted child or a child who is the subject of a de facto adoption may not make an application for leave to enter or remain in order to accompany, join or remain with an adoptive parent under paragraphs 297 to 303)”
5. The UK does not recognise Afghan adoption, so the Secretary of State considered whether there had been a ‘de facto adoption’ under the relevant rule:
309A For the purposes of adoption under paragraphs 310-316C a de facto adoption shall be regarded as having taken place if:
(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and
(b) during their time abroad, the adoptive parent or parents have:
(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
(ii) have assumed the role of the child’s parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.
309B Inter-country adoptions may be subject to section 83 of the Adoption and Children Act 2002 or the equivalent legislation in Scotland or Northern Ireland if the adopter’s habitual residence is there. Where this is the case, a letter obtained from the Department for Education (England and Wales habitual residents) or the equivalent from the relevant central authority (Scotland or Northern Ireland habitual residents) confirming the issue of a Certificate of Eligibility must be provided with any entry clearance adoption application under paragraphs 310-316C.
6. As is clear from the FtT’s findings of fact, para 309A is not met. While visits were made, and Y has been living with SH, the sponsor was not living with her for 12 months prior to the date of application. The Secretary of State reached the same conclusion, as well as deciding that there had not been a genuine transfer of parental responsibility for a full 18 months. The requirement at 309B was not addressed.
7. The Secretary of State still addressed whether the rules would have been satisfied even if the sponsor could be considered SH’s adoptive parent. Because her biological mother remains alive in Afghanistan, she would have had to meet one of the following requirements at para 310(i):
(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child's upbringing; or
(f) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care; or
And the requirement at 310(iv) that she:
(iv) can, and will, be accommodated and maintained adequately without recourse to public funds in accommodation which the adoptive parent or parents own or occupy exclusively; and
8. Noting SH’s present situation, the Secretary of State rejected that the sponsor had exercised control over aspects of her life, such as schooling, religion, medical care and so on, such as to amount to sole responsibility. It was also decided that there were no serious and compelling considerations that made SH’s exclusion undesirable. Surprisingly, given that information had been submitted showing the sponsor and T’s substantial earnings, and that they had over £80,000 in savings, the Secretary of State also decided that they had not proved SH could be adequately maintained and accommodated in the UK without recourse to public funds.
9. Finally, the Secretary of State decided that refusing entry clearance would not be a disproportionate interference with the right to respect for family life afforded by Article 8 ECHR, specifically observing that section 55 of the Borders, Citizenship and Immigration Act 2009 imposed a duty to safeguard children.
The FtT’s decision
10. The FtT recorded the issues in dispute between the parties as being first whether SH enjoys family life with the sponsor and T, and second whether refusal of entry clearance disproportionately interfered with the right to respect for it. Ms Revill, representing SH before the FtT as she has before me, had accepted that the sponsor did not meet the rules’ definition of “parent” or “relative”, nor could the relationship meet the definition of a de facto adoption.
11. Dealing with family life first, the FtT referred to the “case law cited in the [appeal] skeleton argument” in which Ms Revill had cited Kopf & Liberda v Austria (App no 1598/06) [2012] 1 FLR 1199 and Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338. It found that SH does enjoy family life with the sponsor and T capable of engaging the protection afforded by Article 8(1): SH had known them as her parents since birth and was (at the time of the hearing) nine years old, she had not had any contact with her biological mother since infancy and nor were there any prospects of a relationship with her being established, SH and the couple’s son believed each other to be siblings, and there were regular visits and ongoing contact and financial support. In reaching that conclusion, the FtT referred to Kopf, where family life had been found to exist between foster parents and the child they cared for from the age of one month, where the applicants had behaved in every respect like the child's parents.
12. The FtT can be seen to have considered the following circumstances as relevant to proportionality:
a. The best interests of SH (as well as those of the sponsor’s son) stood as a primary consideration.
b. SH lives on a temporary tourist visa in Iran. Not only was her immigration status there precarious, but so were her care arrangements: Y is only there as a temporary measure and likewise has no formal immigration status in Iran permitting her to stay indefinitely or to work.
c. The (then) wider situation in Iran, “recently at war with Israel and the USA, where there is currently a ceasefire.” [Y] had “provided a harrowing account of their situation in Iran during the recent hostilities” which the FtT accepted as truthful by reference to information in the public domain and contemporary WhatsApp messages.
d. SH could not return to live in Afghanistan with the sponsor’s family. His father had passed away and without male protection SH would be at risk of being forced into marriage at the hands of the Taliban. Nor would SH ever be entitled to an education in that country. The FtT also considered evidence concerning the sponsor’s wider family in Afghanistan that I need not set out.
e. SH speaks English as shown by her attendance at an English-speaking school and her written messages seen by the FtT.
f. The family would not be reliant on public funds in the UK, the evidence showing that T earns in excess of £100,000 and they have savings of £98,000.
g. SH has always believed (and still believes) that the sponsor and T are her biological parents and that the sponsor’s son is her biological (half-)brother. Apart from that she has no parent, whether biological or by way of de facto adoption, who can care for her.
13. The FtT decided that the circumstances were “very unusual and exceptional”. If the sponsor had been SH’s biological father, then the requirements of para 297 would have been met (so, it must be inferred, would those at para 310(i) and (iv) if there had been a de facto adoption). In conclusion, “there is no public interest in excluding SH from the United Kingdom” and “her exclusion is disproportionate”. The appeal was allowed.
Is there an error of law in the FtT’s decision?
14. The Secretary of State applied for permission to appeal, which was granted on a renewed application to the Upper Tribunal. The grounds of appeal have been the subject of a procedural skirmish first conducted in the parties’ written submissions and continued at the hearing on 18 February. I declined to reach any preliminary decision on the scope of the appeal, considering it necessary to clarify the parties’ substantive submissions before deciding whether they went beyond those that were permissible. My decision was reserved.
The grounds of appeal
15. The pleaded grounds of appeal are muddled to say the least, and the various criticisms of them were well-made. Mr Parvar, who was not the author, cannot however be criticised for trying to shape them into discrete and comprehensible legal challenges to the FtT’s decision, or for putting their most important complaint at the centre of his submissions.
16. The word ‘safeguarding’ is put forward by the grounds as relevant to engagement and proportionality. It is then contextualised by paragraph 4, which complains that the FtT:
…has made no finding that the sponsor has commenced proceedings relating to inter-country adoption which requires them to contact their local authority social services department or a voluntary adoption agency that has been approved for intercountry adoption, The local authority or adoption agency will require them to complete the necessary forms and will then carry out a number of checks about them and the home that will be provided for the child.
17. Read fairly, the grounds do raise the issue of whether the FtT erred in its approach to both whether family life exists and the proportionality of refusal by failing to engage with the provisions governing inter-country adoptions and the public interest they represent. This is sufficiently clear for SH to be fairly confronted with the issue, and Ms Revill has been able to prepare to meet it.
18. Continuing with the grounds, in his subsequent skeleton argument Mr Parvar sensibly withdrew the suggestion that SH simply go back to live with her biological mother and her husband. He nonetheless raised a new argument, being that the FtT erred in treating wider risks in Iran and Afghanistan, such as armed conflict and forced marriage, as relevant to proportionality. In response to Ms Revill’s challenge he acknowledged that this went beyond the pleaded grounds and required permission, relying on the issue being raised by the judgment in IA that post-dated the lodging of the appeal.
19. Ms Revill objected to the amendment on the basis that while the appeal had been lodged on 6 August 2025 and IA was only handed down on 26 November 2025, there was nothing that prevented the ground having been included at the start; if the argument could have been formulated for the Court of Appeal then it could have been formulated for the Upper Tribunal. Be that as it may, I consider that it would be unrealistic for this Tribunal to consider the FtT’s proportionality assessment without reference to the explanation of the relevant principles given by the Court of Appeal. I therefore give permission to argue that additional ground. Ms Revill’s related arguments concerning whether particular arguments were ever made to the FtT are best dealt with when deciding if the respective ground is well founded.
20. In conclusion, I resolve the parties’ dispute on the operative grounds of appeal by determining that they assert the following errors of law:
Does SH have family life with the sponsor (and T) capable of engaging Article 8(1)?
a. The FtT erred in finding that family life was engaged where the sponsor had no biological relationship with SH, nor any legal responsibility for her, and nor had any safeguarding been conducted in relation to ‘inter-country adoption proceedings’, which would have required contact with local children’s services and checks being undertaken into the UK-based family and their home.
Is exclusion of SH from the UK a disproportionate interference with the right to respect for that family life?
b. The FtT erred by placing reliance on SH meeting the requirements of para 297 “apart from the issue of the sponsor not being her biological father”, when that rule was designed for children joining their parents or other relatives;
c. The FtT failed to take safeguarding into account when deciding proportionality, the sponsor having no biological relationship with SH and never having lived with her and ‘inter-country adoption proceedings’ not having been commenced in the UK, which would require contact with local children’s services and checks being undertaken into the UK-based family and their home.
d. The FtT did not consider whether the sponsor could be reasonably expected to comply with the residence and other requirements for a de facto adoption to take place then re-apply at a later date;
e. The FtT erred by taking into account the wider country conditions in Iran and Afghanistan.
Legal status, the inter-country adoption procedure and safeguarding
21. The issue described by the above heading is raised by the grounds at (a) and (d) above, and to a lesser extent by (b). My decision that the FtT erred in law turns on the inter-country adoption provisions and the protective principles that underpin them, and the related lack of any legal relationship between SH and the sponsor. I therefore address it first, by reference to both engagement and proportionality.
22. Mr Parvar referred to Singh v Entry Clearance Officer New Delhi [2004] EWCA Civ 1075, in which Dyson LJ held as follows:
32. Mr Blake accepts that relevant international material should be taken into account in deciding whether there is family life. I consider that he is right to do so. But in my judgment, the decision in Pini does not support the proposition that in all cases where an adoption does not satisfy the requirements of relevant international instruments, it should be given little weight. The court did not address the question what weight should be given to an adoption in such circumstances, and so far as I am aware there is no Strasbourg jurisprudence on the point.
33. As a matter of principle, I do not see why the fact that an adoption does not meet the requirements of relevant international instruments should invariably be a reason for according little weight to it in determining whether family life exists or not. Such a rigid and formulaic approach is in my view not justified. The significance of the failure to satisfy the requirements of relevant international instruments will vary from case to case. Of considerable importance will be the nature of the departure from the provisions of a relevant instrument. If the departure is one of substance rather than procedure and it goes to the heart of the safeguards that the instrument is intended to promote, then it may well be appropriate to give the adoption order little weight. The Declaration of 1986 provides that the first priority for a child is to be cared for by his or her own parents (art 3). When care by the child's own parents is unavailable or inappropriate, care by relatives of the child's parents, by another substitute or an appropriate institution should be considered (art 4). In all matters relating to the placement of a child outside the care of the child's own parents, the best interests of the child should be the paramount consideration (art 5). The primary aim of adoption is to provide the child who cannot be cared for by his or her own parents with a permanent family (art 13). If a child cannot be placed in a foster or an adoptive family or cannot be cared for in any suitable manner in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family (art 17). There are provisions to similar effect in the other instruments to which we were referred. Article 1 of the 1993 Convention identifies its objects as being:
“(a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law;
(b) to establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children;
(c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention”.
34. I would accept that an inter-country adoption which has come about in circumstances in which little or no regard has been had to the best interests of the child must be viewed with great caution. An adoption order made in those circumstances should not, of itself, be given much weight in deciding whether family life has been established. But, there will be cases in which, although the order was made without regard to the best interests of the child, it can be seen, with hindsight, that adoption was, in fact, in the child's best interests; and that the fact that the order was made, and has been recognised in the jurisdiction in which the child has been living, has enabled a family relationship to develop. In such circumstances the fact that the order was made without regard to the child's best interests is not a reason to refuse recognition to the family life which has, in fact, developed as a result of the order. All will depend on the circumstances of the case. The best interests of the child will, of course, be relevant – and may well be determinative – at the stage at which the court has to decide the extent to which respect should be given to family life (as demonstrated by the approach in Pini) or whether interference with family life is justified under article 8(2).
23. In reliance on that judgment, Mr Parvar argued that the Secretary of State’s “rules on adoption are not a mere formality” and that the requirements of the rules reflect the safeguarding concerns inherent in international adoption. I take this argument as seeking to engage the warning in Singh at [34] that “an inter-country adoption which has come about in circumstances in which little or no regard has been had to the best interests of the child must be viewed with great caution”.
24. Mr Parvar related the lack of any formal adoption to the sponsor and T having failed to follow the inter-country adoption procedure provided by UK law. These provisions and their significance were explained in TY (Overseas Adoptions - Certificates of Eligibility) [2018] UKUT 197 (IAC), and it is appropriate to set them out in some detail here.
25. As already noted, the rules require that where section 83 of the Adoption & Children Act 2002 applies, a certificate of eligibility must be provided. Section 83 begins:
83 Restriction on bringing children in
(1) This section applies where a person who is habitually resident in the British Islands (the “British resident”)—
(a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or
(b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time.
The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.
(2) But this section does not apply if the child is intended to be adopted under a Convention adoption order.
26. Neither Afghanistan nor Iran are contracting parties to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, so the Convention adoption order at subsection (2) does not arise. The remainder of the section provides for regulations to be made imposing requirements upon the person named in section 83(1). The Adoptions with a Foreign Element Regulations 2005 accordingly impose the following provisions of potential relevance in this appeal:
3. A person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where section 83(1) of the Act applies must—
(a) apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and
(b) give the adoption agency any information it may require for the purpose of the assessment.
27. Regulation 4 then imposes the following requirement:
(2) Prior to the child’s entry into the United Kingdom, the prospective adopter must—
(a) receive in writing, notification from the Secretary of State that she has issued a certificate confirming to the relevant foreign authority—
(i) that the person has been assessed and approved as eligible and suitable to be an adoptive parent in accordance with Part 4 of the Agencies Regulations or corresponding Welsh provision; and
(ii) that if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption is effected, the child will be authorised to enter and reside permanently in the United Kingdom;
28. Such certificates are issued by the Department for Education rather than the Home Office. I need not set out the detail of the assessment required for a certificate to be issued, save to observe that it includes safeguarding checks on the UK adopters and their proposals for the child together with investigation of the child’s situation abroad and liaison with the foreign authority. The importance of such a procedure is obvious, given the high potential for exploitation and harm in inter-country adoption and the wider interests and principles of international law discussed in Singh. That importance is further informed by section 83(7), which provides that a person who brings a child into the United Kingdom for adoption in breach of the applicable requirements commits an offence punishable by imprisonment for up to 12 months.
29. Remarkable by its absence in this case is any recognition by the sponsor and T that they are, in layman’s terms at least, seeking to adopt SH. They wish to bring her up in the UK as their child. Without diminishing the genuine parental relationship found by the FtT, she remains biologically and legally unrelated to them. While I note the provision of a ‘propinquity certificate’ issued in Afghanistan in 2010, it is predicated upon the sponsor being SH’s father. No evidence has been provided as to its current legal effect. If SH were admitted pursuant to an allowed appeal, it would be likely that some eventual form of legal recognition of their parental role would be required. While I reach no determinative conclusion on whether the sponsor would fall within section 83(1) if entry clearance is granted and SH travels to the UK, it must be a serious possibility.
30. I accept the argument that an unexplained failure to follow inter-country adoption procedures potentially bears on whether Article 8(1) family life has been established, being the corollary of what is said in Singh, above. It can even more readily be seen as a vital consideration when determining proportionality: first, the rules require a Certificate of Eligibility to be provided if section 83 applies, incorporating the procedure into the UK’s immigration controls; second, the rules make provision for children at para 297 and para 310, but make no specific provision for those without that relationship; third, a failure to have regard to the procedure risks undermining its overall effectiveness in protecting children; fourth, undertaking the safeguarding and other checks underpinning the procedure is directly relevant to the individual child’s best interests, a primary consideration when assessing proportionality. If support for that conclusion is necessary, it can be found in TY, as well as in ST (Adoptions: 'overseas' adoptions: para 310) India [2025] UKUT 352 (IAC).
Is it too late for the Secretary of State to raise the issue?
31. Ms Revill’s primary response is that none of this was raised before the FtT. While there is a single reference to ‘safeguarding’ in the refusal decision, upon which the Respondent’s Review relied in general terms, the discrete issue of compliance with the inter-country adoption procedure has been raised for the first time on appeal to the Upper Tribunal. She cites Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC), the headnote to which includes the following:
1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
…
4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.
…
7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.
32. While the refusal decision could have been clearer, the Secretary of State’s conclusion that refusal would not be contrary to Article 8 is still centred on the lack of recognised or de facto adoption and the duty to safeguard children:
Your adoption is therefore not a legally recognised adoption, nor a de facto adoption, nor have you provided any evidence of any serious or compelling family or other considerations which make your exclusion undesirable. I therefore refuse your application under paragraph 310(i) and 310(vi)(a) and (b) of the Immigration Rules.
I have also considered whether the particular circumstances set out in the application constitute exceptional circumstances which, consistent with the right to respect for private and family life contained in Article 8 of the European Convention on Human Rights, might warrant a grant of entry clearance to the United Kingdom outside the requirements of the Immigration Rules. Following a thorough assessment of the application I am satisfied that there is no basis for such a claim. Additionally, I have a duty to safeguard children under section 55 of the Borders, Citizenship and Immigration Act 2009 and have considered your situation in light of this. It has therefore been decided that there are no exceptional circumstances in this case. Consequently, the applicant will not be issued entry clearance outside the rules.
33. I nonetheless agree with Ms Revill that the Secretary of State breached the duties described in Lata by failing to effectively argue a point before the FtT that is now put forward as fundamental. That failure is even more stark given that the Secretary of State now argues that raising the issue is required by her duty under section 55 of the 2009 Act.
34. The guidance given in Lata is consistent with the judgment of the Supreme Court in CAO v Secretary of State for the Home Department (Northern Ireland) [2024] UKSC 32:
47. Having said this, however, where an appeal is brought to the FTT, as here, by a parent seeking to rely on the best interests of their child in order to say that the child's removal from the United Kingdom would be in breach of their Convention rights, the burden is on the appellant to make good that case and in ordinary circumstances the FTT will be entitled to assume that the parent has adduced all the relevant evidence which is sought to be relied upon which bears on that issue. It is not incumbent on the FTT to cast about, or to order inquiries to be made, to see whether any evidence has been omitted or overlooked. That is especially so where the parent and child are represented by a lawyer, as the respondent was in this case.
35. That entitlement to assume that an appellant has adduced all relevant evidence which is sought to be relied upon which bears upon a child’s best interests must, I consider, apply equally to any such factors relied upon by the Secretary of State. However:
48. Although this is the general position, there may nonetheless be circumstances where, even though a point has not been taken, it is obvious that it requires examination in order to reach a proper conclusion regarding the best interests of a child affected by the decision. For example, if a decision affected a child and no attempt at all had been made to consider their best interests, that would be an obvious omission and the FTT would be bound to investigate to make sure that proper consideration was given to that issue: compare R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929, 945G–946D (Lord Woolf MR) and R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2023] 3 WLR 103, paras 141–142. Since in a human rights appeal the FTT is the new primary decision-maker, whose decision supersedes that of the Secretary of State, it is subject to a form of the usual public law duty on a decision-maker to make such inquiries as it may consider to be necessary to inform itself about relevant matters (taking into account the responsibility on the parties in this context to present all the evidence they wish to rely upon in support of their case and the usual justified expectation that they will have done that) and will commit an error of law if, being on notice of a vital gap in the evidence, it irrationally fails to make relevant inquiries to address that: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock); R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37, paras 35–36 (Laws LJ).
Conclusion
36. In my judgment the failure to properly argue the relevance of the lack of any formal adoption procedure was a sufficiently fundamental and obvious point in addressing SH’s best interests as to require the FtT to take necessary steps to fill the gap, for example by a direction under rule 4(3)(d) of its Procedure Rules. The issue had been raised in the refusal decision, albeit mutedly, and the lack of any route in the Immigration Rules for a child in SH’s position, para 309B of the Rules, authorities such as Singh, TY and SD and finally the 2003 Act itself were together sufficient to put the FtT on notice of the issue. In the rare circumstances where the FtT is under such a duty to consider a matter of its own motion, nothing said in Lata prevents the Upper Tribunal from deciding it erred in law by failing to do so. For the reasons given at [30] above, the FtT did so err.
37. To decide the consequences of that error, I first address the remaining grounds.
The respondent’s other grounds
Article 8(1) – Family life
38. I reject the other challenges to the FtT’s analysis. First, Mr Parvar argued that the FtT had misunderstood both Kopf and Uddin; each had involved prolonged periods of cohabitation so the FtT was mistaken in taking them as supportive. I disagree. In Kopf the child had been removed from his mother at the age of two and remained with foster carers for 46 months before eventually being returned to his mother. The foster carers applied for contact with the child, but their application was dismissed because the two years taken to hear their application meant that contact was no longer in the child’s best interests. Finding that Article 8(1) was engaged by the relationship, the Court held as follows:
[35] In this respect the court reiterates that the notion of ‘family life’ under Art 8 of the European Convention is not confined to marriage-based relationships and may encompass other de facto ‘family’ ties (see Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, para 55, 21 December 2010, with further references). The existence or non-existence of ‘family life’ for the purposes of Art 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K and T v Finland (Application No 25702/94) (2000) 31 EHRR 484, [2000] 2 FLR 79, para 150). Although, as a rule, cohabitation may be a requirement for such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto ‘family ties’ (see Kroon and Others v The Netherlands (Application No 18535/91) (1995) 19 EHRR 263, 27 October 1994, para 30, Series A no 297-C).
[36] In the case of Moretti and Benedetti v Italy (Application No 16318/07) the court considered the relationship between the applicants as foster parents and the child entrusted to them, who had lived with them from the age of 1 month for a period of 19 months, as falling within the notion of family life within the meaning of Art 8(1) because there had been a close interpersonal bond between the applicants and the child and the applicants had behaved in every respect like the child’s parents (Moretti and Benedetti v Italy, paras 49–50, 27 April 2010).
39. Insofar as the FtT did place any reliance on Kopf, no misunderstanding is apparent from its reasons.
40. In Uddin, the Court of Appeal recorded the facts as follows:
41. The un-contradicted Article 8 facts in this case are that the Appellant was an orphaned young man, abandoned on the streets of London at the age of 13 with no known family. He has been brought up and cared for by a foster family who are committed to him as if he were a child of the family. They are paid by the local authority children's services department. That department independently considers the foster family to be committed to his welfare and success in life. There is a Pathway Plan in place for him that provides for his continued cohabitation with the foster family until at least the age of 21, a settlement that both the Appellant and his foster family jointly desire. It may be significant that through the support, protection and upbringing of his foster family, the Appellant has transformed from a destitute thirteen-year-old who spoke no English, to an accomplished young man engaged in his community and education. […]
41. In setting aside the decision that Article 8 was not engaged, Ryder LJ held at [40] that:
40. Accordingly, the following principles can be described from the authorities:
i. The test for the establishment of Article 8 family life in the Kugathas sense is one of effective, real or committed support. There is no requirement to prove exceptional dependency.
ii. The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
[…]
42. While in IA at [79] the Court of Appeal held that Ryder LJ had lost sight at 40(i) of “the additional elements of dependency test”, both analyses are solely concerned with family life between adult relatives. No other aspect of the judgment in Uddin is put into doubt by anything said in IA.
43. Save as they inform the inter-country adoption point, neither Kopf nor Uddin contain any principle incompatible with the FtT’s decision. Nor does the FtT appear to have misunderstood either authority. Its reference at [18] to “foster parents and a child they care for from the age of one month” must be a reference to Moretti and Benedetti v Italy (Application No 16318/07) (unreported), as cited in Kopf at [36]. While the FtT could have made it easier for the reader by attributing the example, it was under no obligation to do so.
44. Second, I reject that the FtT was under any obligation to expressly consider “additional elements of dependency” by reason of anything said in IA. While the Court’s judgment may contain commentary on Article 8 in general, its focus is solely on the existence of family life between adult relatives. Dependency may well be highly relevant to determining whether a claimed parental relationship exists between a biologically unrelated adult and child, but I was not referred to any authority claiming it as essential. In any event, the FtT’s findings on support would be sufficient to address the issue without the need for any express self-direction.
45. Mr Parvar was unable to point to any authority ruling out the existence of family life in the present circumstances. Nor, save for that already found, can any error be discerned in the FtT’s approach.
Article 8(2) – Proportionality
46. The approach to proportionality at the error of law stage is the ‘review standard’ set out in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30 at [142].
47. The first ground argued in relation to proportionality raises the type of error discussed in AM (Belarus) v Secretary of State for the Home Department [2024] UKSC 13 at [101]-[103], in which it was held that the FtT erred in treating 20 years’ residence as an “important yardstick” for determining proportionality due to it being one of required criteria for a grant of leave under para 276ADE of the Rules. The Court held that the purpose of such a rule is to create an entitlement to those who meet all necessary requirements as a matter of public policy, without the Secretary of State needing to consider Article 8 at all; the FtT erred by treating one of its individual requirements as a statement “regarding the weight to be attached to the public interest in the due enforcement of immigration controls for the purposes of the general application of Article 8” and reducing that weight because the requirement was fulfilled.
48. I agree that the comparison is apt. The various requirements at paras 297 and 310 apply, respectively, to children and adoptive children. While the refusal decision considered them in the alternative, this was sensible decision-making practice that both decided matters factually relevant to the balancing exercise required by Article 8 and set out the Secretary of State’s case that SH must meet on appeal were she to argue that she met the entirety of the rule. In this case the FtT committed the same error as it did in AM (Belarus), by failing to have regard to the purpose of the rule and afford the necessary weight to SH not being someone to whom it applies.
49. The second argument, being a failure to consider whether the sponsor and/or T could make a future application after satisfying the requirements for a de facto adoption, more readily engages Ms Revill’s arguments concerning Lata. It can properly be described as an argument that the FtT was not obliged to address in the absence of any argument to that effect. It did not err by failing to consider it. While I do not exclude the argument from being put forward on re-making, its merits will be considered in light of the practical realities.
50. On those practical realities, little is now added by considering whether appropriate weight was placed on the risks to SH in Iran and Afghanistan. The treatment in IA draws important attention to the respect that must be afforded to the Secretary of State’s policy when balancing it against the best interests of any affected child, and cautions against an assessment that wrongly promotes those interests beyond being a primary consideration. Nonetheless, the Court was concerned with the sponsor’s nieces and nephews as part of his wider family; see [159]-[161]. Here the relationship is put forward as more proximate and the underlying circumstances different. The relevant principles set out in IA can be addressed in remaking.
51. No doubt there will be circumstances in which the best interests of the child, through the prism of Article 8, will require their admission even when no Certificate of Eligibility has been obtained; for example, satisfying the requirements of the 2005 regulations may be impossible in some circumstances. In this case, that has not yet been established and the FtT’s decision must be set aside.
Re-making the decision
52. The above reasons were sent to the parties and a further hearing listed on 24 April 2026 so that the decision could be re-made. It was directed that the FtT’s findings, none of which had been challenged, would be preserved. At the hearing I heard evidence from the sponsor and T, and submissions from Ms Revill on behalf of SH and Mr Pugh on behalf of the Secretary of State.
SH’s circumstances in Iran
53. The evidence on SH’s updated circumstances in Iran is as follows:
a. SH and Y continue to reside together in Tehran, but both are now without lawful status: SH’s visa expired in March 2025 and Y’s in June 2025. They are said to remain largely confined to their apartment due to fear of the authorities and the risks associated with their lack of immigration status and Afghan nationality.
b. Y is unable to work and her ability to engage in any activities outside the home has ceased due to the prevailing security situation. She continues to act as SH’s sole carer, but reports that her mental health has significantly deteriorated as a result of the prolonged situation, her isolation, and the responsibility she has assumed. She had originally agreed to stay with and care for SH for 3 to 6 months.
c. SH is no longer attending school and has received no formal education during the current academic year. She is instead being informally taught at home by Y. Her previous external activities have largely ceased. The evidence also refers to a significant injury in January 2026 requiring hospital treatment, which is said to have been a distressing experience.
d. Both SH and Y are described as having been directly affected by civil unrest and subsequent armed conflict in Tehran. The witness evidence refers to protests, periods of internet blackout, and later including nearby explosions and damage. The sisters are said to have been required at times to remain entirely indoors.
e. SH is said to be highly distressed by these events, exhibiting fear, nightmares, and ongoing anxiety. The evidence describes her as traumatised by the unrest and fearful for her safety, with her daily life said to have “come to a standstill”.
f. Communication with the sponsor and T in the United Kingdom is limited and insecure, being restricted to intermittent phone calls initiated from Iran, against a backdrop of monitoring and disruption to internet access. Financial support is described as increasingly difficult to provide due to banking restrictions and the need to rely on informal cash transfers via intermediaries.
g. More generally, the evidence asserts that SH and Y experience ongoing fear arising from the security situation, their immigration status having expired, and concerns about detention or removal.
h. The sponsor and T are also suffering greatly by reason of their separation from SH and Y; I would add that this was further apparent from the emotional nature of their evidence at the hearing.
None of this was challenged by Mr Pugh, nor is there any reason to reject it. It was consistent with the evidence provided of the ongoing armed conflict affecting Iran, which is well known in any event. I make findings of fact accordingly.
Inter-country adoption procedures
54. Mr Pugh did question the couple’s evidence concerning the procedures followed in the UK. In the sponsor’s witness statement, he first sets out that he and his wife have the resources to care for and accommodate SH. This is accepted. He next sets out their willingness to engage and cooperate with any safeguarding or assessment required, before continuing as follows:
We are also taking steps to follow the appropriate legal process in relation to her care and status in the United Kingdom, including contacting our local council to initiate the necessary assessment. Our only intention is to ensure that our daughter is protected, supported, and raised in a safe family environment in accordance with UK safeguarding standards.
[…] In the meantime, we have applied for the overseas adoption and awaiting further information. We are committed to bring SH to safety and be part of our family.
55. There is little evidence to support the claim to be following the “appropriate legal process”, and no explanation as to why it was not done before. On 25 March 2026, T approached their local authority by email. She was referred to Coram Intercountry Adoption Centre, to whom the couple’s local authority delegates their intercountry adoption function. In conversation with Coram IAC, the organisation refers to an interview conducted with the couple some years previously that must now be updated, for which there will be a fee, and attaches to the email an Initial Interview Request form that contains “details on how to make the payment”. Also attached is:
…an information pack outlining the intercountry adoption assessment service, including the process, timescales, and associated service charges. This is the procedure you will need to follow to bring a child from overseas into the UK.
56. T’s emailed reply, in its entirety, is as follows:
did i do interview in the past? I can not remember, if i did, otherwise, let me know how to pay, please send me the link
57. It can often be unfair to attach significance to the way in which an email is worded, especially if typed when stressed or under pressure. Yet here, the content of the email shows that T had barely read or understood the email from Coram, and its delivery matches her oral evidence. She was unable to answer any questions at all about her previous contact with the organisation or what would happen now. She did not appear to be, nor did Mr Pugh argue her as being, deliberately dishonest or evasive, rather it seemed to me that she was in a state of panic. In an attempt to clarify her evidence, I asked her about the information pack sent by Coram and what it had said about the likely timescales. She had to be taken to the email before she understood what I was talking about; she plainly had no idea that any information had been provided, much less what it said. The sponsor’s evidence was of no greater help.
58. The situation concerning the appropriate procedures in the UK is therefore unchanged from the hearing before the FtT almost two years ago. This is unfortunate given that the couple have been on notice of the Secretary of State’s concerns since early November 2025 and that the Upper Tribunal shared them since they were sent the error of law reasons on 23 March 2026.
59. In summary, no coherent explanation is offered as to why the inter-country adoption procedures have not been followed. At the very least, by the time of the re-making hearing a cogent picture could have been presented as to the applicability of the relevant inter-country adoption procedures, their timescales and any obstacles to complying with them. Two matters in evidence particularly illustrate the couple’s lack of engagement. First, Mr Pugh asked a number of questions to each of them on how they would regularise their legal relationship with SH in the UK, for example so that she could receive medical treatment, go to school, and so on. They appeared to have given it no thought whatsoever. This included whether they intended to formally adopt SH. Arising from that exchange, I asked T if she had ever sought advice from a family lawyer (while making clear that she need not tell me what it was). Her response was:
No. I spoke to two friends who have had the same situation, but they’re so different because [SH] is from Afghanistan.
60. This was all she could say. The evidently chaotic way in which the couple have approached the legal aspects of bringing SH to the UK, despite their resources, is remarkable. Considering the overall evidence and its presentation, and setting it alongside the preserved findings of fact, they appear almost in a state of helplessness or paralysis, unable to engage with the practical aspects of their situation due to (as was readily apparent in evidence) their intensely emotional response. I turn to the issues.
Is Article 8(1) engaged?
61. Mr Pugh accepted on behalf of the Secretary of State that there was family life between SH and the sponsor such as to engage Article 8(1). This was a sensible and realistic concession that I endorse. The FtT’s reasons for finding family life continue to apply. While the absence of formal adoption proceedings is capable of weighing against them, in this case it cannot outweigh the actual nature of their relationship with one another. SH has always believed that the sponsor is her father and has always been treated as such even after he learned that they were not biologically father and daughter. The decision to continue their relationship was motivated by her best interests: see Singh at [34]. For the same reasons, I find that family life extends to SH’s relationship with T and the couple’s children.
Article 8(2) proportionality
62. The parties agree that the appeal turns on the question of proportionality; is the public interest in SH’s exclusion from the UK outweighed by the interference in family life it would cause? Regard must be had to the unitary nature of the family life engaged, but the Tribunal looks primarily at the Article 8 rights of the UK-based members of the family: IA at [11] (whether this should be taken as including Y could be debated, but would not materially alter the conclusions reached below).
63. Article 8(2) describes the public interest as including both the economic well-being of the country and the protection of the rights and freedoms of others. It requires the public interest underlying the Secretary of State’s refusal to be carefully assessed and to be afforded considerable weight.
64. At paragraphs 29-30 above I set out my view on the relevance of adoption and the applicability of the inter-country adoption procedures. In response to those reasons, at the remaking hearing Ms Revill referred me to A and B (Adoption: Section 83 ACA 2002) [2024] EWHC 2837 (Fam). The applicant in that case had brought her two nieces to the UK after obtaining a guardianship order from a Pakistani court that she mistakenly believed would be recognised in this country. In deciding whether to grant an adoption order, the Family Court had to consider whether she had breached section 83 ACA because she had brought the children into the UK “for the purpose of adoption”. Cobb J (as he then was) held at [33]-[34] that the word “adoption” in the statute referred to the process of obtaining an adoption order in an English court, and the phrase did not mean “for the purpose of living in an adoptive home”. He further held that the purpose need not be the sole or dominant purpose, simply one of the purposes for which the child was brought to the UK.
65. Those facts are a world away from the present case. The applicant in A and B had followed what she believed to be the correct procedure and genuinely believed that no further legal steps were required for the children to live with her in the UK. She was only alerted to the insufficiency of the Pakistani guardianship order, and the necessity of an adoption order, once the children were here and she applied for their British passports. In contrast, the sponsor and T know full well that they have no legal responsibility for SH in this country and were unable to answer Mr Pugh’s questions on how they would act as her parents without it. They know that adoption is the likely course and cannot even articulate a denial.
66. While I am sure that both were honest in their evidence, I reject that they truly intend, or hold any settled expectation, that SH will live with them without their relationship being formalised. Without in any way diminishing the genuine parental love and affection the sponsor feels for SH, English law does not recognise him as her father. He wishes her to live with him as his daughter and to fulfil the role of her father in all respects. That is what adoption achieves: socially, culturally, and by virtue of section 46 ACA 2002, legally. The legal regime and safeguards that regulate such arrangements do not become irrelevant simply because the sponsor is unable to coherently articulate his position on them. The need for an adoption order to be made before the children in A and B could be issued with British passports illustrates a stark reality: SH’s best interests, and the functioning of her parental relationship with the sponsor in society, will require legal recognition. Once she is here, the sponsor will try to achieve it.
67. For the above reasons, I conclude that one of the purposes for which the sponsor wishes to bring SH to the UK is for adoption and that this appeal should be decided on the basis that SH’s entry would engage section 83. Adoption continues to provide the context in which the public interest should be assessed. If I were wrong on that, then Ms Revill’s argument would require a finding that there is a settled intention not to formalise the relationship. Not only would this be irrational on the sponsor’s part, but seriously call into question the ability and suitability of the sponsor to care for SH in her best interests. This is contrary to the preserved findings.
68. Both the Immigration Rules and the law of adoption should therefore be seen as together representing the settled democratic means by which entry of adoptive children is to be regulated and the public interest described in Article 8(2) supported. The outcome is four “adoption routes” available under the Immigration Rules – conveniently summarised in the successor provisions to those now in issue, at Appendix Adoption. The first three are unavailable: neither Iran nor Afghanistan are parties to the Hague Convention, SH could not be the subject of a recognised Overseas Adoption and, as Mr Pugh accepted, it would be impossible to expect the sponsor and SH to have been living together overseas for at least 12 months at the time of application, or for them to do so now.
69. The only route left under the rules as likely to aid SH requires that a certificate of eligibility has been obtained. Breach of that requirement weighs heavily in favour of refusing the application in the public interest. Not only is bringing SH to the UK without a certificate a criminal offence, but the policy underlying the requirement includes the protection of children, women and girls against predatory and exploitative overseas adoption practices. That objective would be undermined if immigration control fails to play its part in achieving it. Certificates are issued following the involvement of bodies with far greater institutional competence and actual expertise to assess a child’s best interests than the Upper Tribunal.
70. I should not be taken as holding that absence of a certificate will always be a bar to an appellant succeeding. In A and B, Cobb J held at [41]-[43] that the requirement for a certificate is “targeted at potentially unsuitable carers seeking to bring unrelated infants to this country to create a family by way of adoption”, and that even if the requirement were breached then adoption should exceptionally proceed if to do otherwise would to deny the rights afforded by Article 8. At [44] he set out how that issue should be approached:
44. I had to consider similar issues in Re TY (Preliminaries to Intercountry Adoption) [2019] EWHC 2979 (Fam). At [21] of my judgment in that case I considered a number of authorities which addressed the court's approach to outcome where due process had not been followed. The cases included: Re X (Surrogacy: time limit) [2014] EWHC 3135 (Fam), [2015] 2 WLR 745, [2015] 1 FLR 349; KB & RJ v RT [2016] EWHC 760 (Fam); and Re A & B (No.2 Parental Order) [2015] EWHC 2080 (Fam). [2016] 2 FLR 446 and Re A & Others (HFEA 2008) [2015] EWHC 2602, [2016] 1 WLR 1325, [2017] 1 FLR 366 at [59]/[60]. I extracted the following propositions in Re TY which I once again consider to be relevant here:
i) The focus of the court's analysis should be upon the consequence of the non-compliance as opposed to the imperative wording of the provision (Re X at [37]); "the emphasis ought to be on the consequences of non-compliance" (per Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, at [23]);
ii) If there is a breach of a statutory procedural requirement, the modern approach is to look at the underlying purpose of the requirement, whether departure from it contravenes the letter of the statute and if so, whether it renders it a nullity; (Re X at [39]/[41]); a "purposive" interpretation should be adopted (Re X at [39]);
iii) The consequences of making or not making the order (or in this case of allowing the application to proceed) should be considered; this would be particularly pertinent if the consequences could be lifelong and irreversible (Re X at [54]);
iv) The Human Rights Act 1998 ('HRA 1998') requires an interpretation which gives effect to the rights enshrined therein (Re X at [44]);
v) Relevant to the exercise of discretion (in considering whether to adhere strictly to the letter of the statute or not) would be whether the parties had acted in good faith (Re A & B at [45], [52], [65]);
vi) Consideration should be given to whether any party suffer prejudice if the application is allowed to proceed (Re X [65], cited in KB & RJ at [38]).
45. Developing the point in (iv) above, as I said in Re TY at [32](ii), it is essential to recognise and give effect to the rights of the children and the Applicant for a family life under Article 8 of the ECHR, buttressed in this and other cases by Article 3 of the UN Convention on the Rights of the Child. In Re TY at [32], I said this:
"Any interference with those rights must be both proportionate and justified. For the court to thwart their wholly reasonable joint ambition for an adoption order in this country at this stage, an ambition which has been both long-held and conscientiously pursued, would represent an unjustified and disproportionate interference with those rights".
46. The conclusions I reached in Re TY in respect of the application of the HRA 1998 in this type of situation were reassuringly validated by the Supreme Court less than one week later, by its judgment in RR v Secretary of State for Work & Pensions [2019] UKSC 52 specifically at [27], [28], [29], [30] and [32]. The Supreme Court held that it is not unconstitutional for a public authority, court or tribunal to disapply a provision of subordinate legislation which would otherwise result in acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act 1998. In delivering the judgment of the court in RR, Lady Hale referenced In Re P (& o'rs) [2008] UKHL 38 (sub nom In re G (Adoption: Unmarried Couple) [2009] AC 173) in which at [116] she had said that:
"The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. Indeed, in my view, this cannot be a matter of discretion. Section 6(1) requires the court to act compatibly with the Convention rights if it is free to do so".
In her conclusions on the main appeal in RR she said this at [27]:
"There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the requirements of an Act of Parliament. The HRA is an Act of Parliament and its requirements are clear".
47. In light of all of this, I am satisfied that I would have had the power to disapply the AFER 2005, given their likely interference and incompatibility with the significant and established Article 8 rights vested in the Applicant and the children under the ECHR.
71. The principles set out by Cobb J are plainly capable of bearing relevance to the task of the Tribunal, but the difference in focus is illuminating. The Family Court in the situation he describes is presented with a fait accompli, whereas here the Tribunal is asked to find that a future breach of a statutory requirement is rendered necessary by the UK’s obligations under Article 8. Weighing that necessity logically requires defining the prior condition: why a certificate cannot be obtained, together with any alternatives.
72. In this appeal, no coherent explanation has been put forward as to why a certificate has not been obtained already, whether this could now be done, and how long the process would likely take. In those circumstances it is impossible to say that Article 8 requires SH’s entry without a certificate. The weight carried by the public interest underlying the process is not therefore reduced by compliance having any adverse effect in this particular case.
73. I also place significant weight on the absence of any equivalent of the safeguarding process inherent in obtaining a certificate. While there is no evidence to justify any inference that SH would not have a loving, safe home in the UK, positive safeguarding evidence could have been readily obtained. Such positive evidence is, in my view, required before a decision to admit SH can properly be taken in her best interests. If the process of obtaining a certificate could not proceed so far as assessment, a report by an independent social worker could have been commissioned. Ms Revill’s point that the respondent could refer the family to social services following entry clearance misses the point that the public interest – as well as SH’s best interests – require this to be done before admission unless impracticable.
74. The FtT’s findings that SH speaks English and would be financially independent remain undisturbed.
75. Turning to the matters weighing against SH’s exclusion, they also carry obvious and significant weight. I do not repeat the FtT’s findings but can supplement them with the updated position found at paragraph 53 above to exist at the date of the remaking hearing. Her continued exclusion from the UK is an obstacle to continuation of the family life she had previously established with the sponsor and her other family members here. It puts her at risk from the consequences of armed conflict, and together with her precarious situation in Iran threatens her education and raises the spectre of removal to Afghanistan, where she would face the same risk of forced marriage and lifetime oppression as any woman or girl in that country.
76. In IA at [154]-[161], the Court of Appeal held that the risks of war to the children concerned could legitimately be afforded weight in their favour; and indeed at [172] the Court itself would have done so. It nonetheless cautioned that focus on individual compassionate circumstances must not distort the Article 8(2) analysis such as, for example, by promoting the best interests of a child to a paramount consideration that wrongly overrides the public interest concerns at stake.
Conclusion on proportionality
77. It is impossible not to feel great compassion for the family’s circumstances, together with the temptation to do what one can to remove SH to a place of stability and safety. Such feelings are not always irrelevant to the exercise: the very words “compelling” and “compassionate” bespeak a degree of value judgement as to their nature and seriousness.
78. Yet SH’s circumstances must still be set against the nature of the public interest engaged. The risks faced by the children considered in IA, living in a warzone, were similarly desperate, but were outweighed by the Secretary of State’s decision not to have a resettlement policy for those in that situation: [160]. In this case, the relevant policy does permit overseas adoption of children like SH but subject to the safeguards represented by the certificate of eligibility. Bypassing those safeguards has not been established as necessary before SH can be adopted in the UK; making an exception in her case would damage the integrity of the overall legislative scheme in achieving the policy of protecting children, women and girls in the context of inter-country adoption. I therefore consider that refusal of entry clearance remains proportionate, notwithstanding that resuming family life in the UK with the sponsor is so emphatically in SH’s best interests. In summary, I am not satisfied that the risks faced by SH render it disproportionate to require compliance with a regime whose purpose is itself the protection of children in her position, particularly where compliance has not been shown to be impracticable.
79. While the Tribunal should always be cautious about hypotheticals, the above conclusion can be further explained by considering how the relevant factors might weigh in different circumstances. Say, for example, evidence had actually been provided to justify a finding that, in the unusual circumstances of SH’s birth, her relationship with the sponsor, her nationality and current situation, obtaining a certificate simply cannot be done at all, or cannot be done within a reasonable time. Any domestic safeguarding concerns might be dispelled by evidence from the local authority, or a report from an independent social worker. In those circumstances the Tribunal might well find that SH’s best interests firmly strike the balance in her favour; although of course all will depend on the precise facts as they then stand.
80. I recognise that there may be future consideration of SH’s circumstances by professionals or a court. The findings of fact made in these proceedings should be approached according to the context in which they were made and the evidence that was available.
Conclusion
81. For the above reasons I have come to the conclusion that the appeal must be dismissed. While what happens next is a matter for the sponsor, it is to be hoped that all concerned will concentrate on taking the steps required by SH’s best interests.
82. I maintain the order protecting SH’s identity. Her age, circumstances, the precariousness of her position in Iran and the potential for future Family Court proceedings together justify derogation from the principle of open justice.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by dismissing SH’s appeal against the respondent’s decision of 20 May 2024.

J Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 May 2026