Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004500

First-tier Tribunal Nos: HU/56619/2024
LH/01543/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

HAVIE BRESA
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Georget, Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr Ojo, Home Office Presenting Officer

Heard at Field House on 24 November 2025

Introduction
1. The appellant is an Albanian national who made a human rights claim in an application for entry clearance on the 22nd January 2024. The application was refused by the Respondent on the 13th May 2024 and she subsequently appealed this to the First-tier Tribunal. It was heard on the 26th March 2025 and dismissed by a judge of the First-tier Tribunal on the 28th April 2025. Permission was sought to appeal to the Upper Tribunal and this was granted by the Resident Judge Wilson of Newport on 28th September 2025.
First-tier Tribunal Decision
2. Both parties were represented at the First-tier Tribunal hearing. The judge outlined the issues at [8]–[9] of the decision that is 1) whether removal of the appellant would have unjustifiably harsh consequences and 2) whether removal would otherwise breach Article 8 of ECHR.
3. At [12] the judge confirmed consideration of all evidence and submissions. At [13] it was noted that the appellant and sponsor met in Albania in 2012, married traditionally, and have a son born on 7 January 2014. The appellant and child have never been to the UK and have never cohabited with the sponsor. At [14] the judge recorded that the relationship was maintained through modern means of communication. At [15] the sponsor visited Albania periodically, and the long-distance relationship had become difficult as the child grew older. At [16] the child, now aged 10, resides in Albania, attends school in Albanian, and receives private English tuition.
4. At [18] the judge recorded the sponsor’s explanation that he had been deprived of his British citizenship due to his past immigration history and that he now had leave to remain under the 10-year private life route with eligibility for indefinite leave in January 2034
5. At [19] the judge considered the child’s best interests, noting his settled life in Albania with maternal and paternal family support. At [20] the judge considered the child could live in the UK with his father given his status. At [21] it was noted the parties had maintained a long distance relationship and there was no evidence of difficulties faced by the child.
6. At [22] the judge noted the relevant legal framework and at [23] reminded himself to conduct a balance sheet exercise. At [24] it was noted that the relationship had been long distance one and at [25] he acknowledged the desire of the parties to be together, but at [28] the judge concluded “For the reasons set out above, I find the Appellant is [sic] not established on balance of probabilities that there would be an unjustifiably harsh consequences which would satisfy this.”
7. On the second issue at [31] the judge concluded that he had conducted the balance sheet exercise and “The underlying principle of Article 8 is that it does not give a right to choose where family and private life are carried on. Rather it affords protection and respect for such family and private life. The appellant [sic] has been in the UK for some time. Although he has been deprived of his British citizenship, he is now granted leave on his own a 10-year route.”
8. At [32] the judge concluded the appellant had not shown grounds to bypass immigration rules. The factors favouring interference did not outweigh those against. The appeal was dismissed.
Grounds of appeal
9. The grounds essentially make two points. First, that the judge had failed to conduct a proper assessment of proportionality. Whilst highlighting at [23] that he would conduct a balance sheet exercise, it was contended that he had failed to do so, particularly having failed to consider the harm that separation was causing to the child and that the appellant's partner would not be eligible to sponsor her under Appendix FM until 2034, thus a British child's inability to access benefits of his nationality other than by leaving his mother and the fact that if the partner left the UK to be with the family he would lose his right to remain in a country where he had resided for many years. Second, the judge had failed to properly consider the best interests of the child having made passing reference at [19] and [22].
Grant of permission
10. The First-tier Tribunal on the 28th September 2025, firstly in noting the appeal was out of time given the serious consequences for the appellant, admitted the appeal. Further it was considered arguable that the judge failed to adequately take account of the child's rights as a British citizen and therefore failed to adequately address what was a material matter. Accordingly permission to appeal was granted although it was noted that “whether this error is material within the context of judges other findings is a matter for the upper tribunal.”
Error of law hearing
11. I had a composite bundle of 197-pages which contained all relevant documents.
12. Mr Georget focused his submissions on ground two and submitted if it was made out the appellant would also succeed with reference to ground one. He contended that the judge had failed to take into account the best interests of the child and had failed to consider relevant case law, including JO and others, (Section 55 duty) Nigeria [2014] UKUT 00517. He referred to the requirement for careful consideration as directed by headnote 1, which states:
(1) The duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 requires the decision-maker to be properly informed of the position of a child affected by the discharge of an immigration etc function. Thus equipped, the decision maker must conduct a careful examination of all relevant information and factors.
13. He further relied on the recent decision in Mujaj (Deprivation: children’s best interests) [2025] UKUT 00349 which made clear at headnote 6:
(vi) Sixth, when deciding the issues that are for the tribunal to decide for itself, it must make its own findings about the best interests of any relevant child and take them into account as a primary consideration in accordance with established principles. Here, whether or not the respondent complied with her section 55 duty is unlikely to be relevant
14. He submitted that, on the facts of this case, the judge had failed to identify or consider the best interests of the child. The judge at [19] and [22] made only fleeting reference to the best interests of the child, contrary to the direction in JO which requires a careful examination of information and scrupulous analysis. He further highlighted that the judge had failed to consider issues raised in the appeal skeleton argument at paragraph 19 and paragraph 21, which referred to the fact that the child would be denied residence in the country of his nationality and deprived of privileges and benefits associated with it.
15. Mr Georget further relied on Abdul (Section 55 - Article 24(3) Charter: Nigeria) UKUT 106, which he outlined confirmed that the EU Charter of Fundamental Rights creates a freestanding right, although not an absolute one. Further he referred to the guidance given by the Tribunal in SD (British citizen children - entry clearance) Sri Lanka [2020] UKUT 43. Mr Georget submitted the guidance given by the Courts which, made clear how the best interests of the child ought to be assessed. He submitted therefore that, had the judge undertaken such an assessment, it is uncertain whether the appeal would ultimately have been dismissed.
16. Considering ground one, if it were accepted that the judge failed to properly consider the best interests of the child, then the Article 8 assessment would be flawed, particularly as the judge did not weigh the best interests and the child’s British citizenship within the balance sheet exercise.
17. Mr Ojo, in response, relied on the Rule 24 response, submitting that the judge had adequately considered relevant matters in the Article 8 balancing exercise. At [12], the judge confirmed that all evidence had been considered, even if not expressly mentioned. At [16], he noted that the child received private English tuition, and at [20], acknowledged the child’s status and submitted that he could reside with his father. Mr Ojo further referred to the sponsor’s deprivation proceedings, noting this was not held against him. He emphasised that, when assessing best interests, the guidance in SD at headnote 4 requires consideration of all relevant circumstances:
4. In assessing whether refusal to grant a parent entry clearance to join a partner has unjustifiably harsh consequences, the fact that such a parent has a child living with him or her who has British citizenship is a relevant factor. However, the weight to be accorded to such a factor will depend heavily on the particular circumstances and is not necessarily a powerful factor.
18. He referred to Al Hassan (Article 8, entry clearance KF (Syria)) [2024] UKUT 00234 highlighting that consistent with headnote 2, the judge had considered fact-sensitive assessment of the family unit as a whole.
19. He further argued that the judge’s reasoning demonstrated that family life is not a matter of choice as to where it is conducted [31], and that other factors were properly considered, including the sponsor’s ties to Albania and his deprivation proceedings. The judge referred at [19] and [22] to the best interests of the child and noted that British citizenship is not a “trump card.” The judge adopted a balance sheet approach, which is the recommended method, and therefore his decision disclosed no material error.
18. In response, Mr Georget submitted that section 55 considerations are fundamental and cannot be satisfied merely by stating that best interests were considered. He argued that the best interests of a child are ordinarily to live with both parents, which the judge did not set out, and at [21] appeared to suggest that maintaining the status quo was sufficient. He contended that Al Hassan was fact-specific, involving a child refugee sponsoring from a conflict zone, whereas in this case the child is a British citizen, a factor which, while not decisive, is a powerful consideration as recognised in SD.

Findings and Analysis
20. I have had in mind throughout the need to exercise judicial restraint before interfering with the decision of the FTT. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision or because the tribunal thinks the decision could be more clearly expressed or another judge could come to a different decision. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1AC 678 at [30]: “Appellant court should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or express themselves differently.”
21. Bearing this in mind, and with reference to the guidance on how the best interests of a child ought to be assessed within the remit of an appeal hearing, I find that there has been a failure by the First-tier Tribunal judge to adequately engage with the child’s best interests.
22. I find the decision demonstrates a superficial engagement with the best interests of the child. While the judge at [19] recites factual circumstances, “the child was born in Albania; he has resided there since his birth with his mother. His maternal grandparents are present and assist with his upbringing, as does his paternal grandmother”, and at [22] states “I also bear in mind Section 55 best interests of the child,” these references amount to mere acknowledgment of those facts rather than substantive analysis.
23. There is no clear reasoning on whether it is in the child’s best interests to maintain the status quo in Albania or to relocate to the UK to live with his father. The decision fails to address the implications of the child’s British citizenship, which although Mr Ojo points out is not a “trump card”, is a relevant and significant factor under established jurisprudence (SD and Mujaj). Furthermore, there is no consideration of the principle that the best interests of a child generally include living with both parents, nor any balancing of this factor against other factors such as the sponsor’s immigration status and his ties to Albania. The judge has therefore materially erred in law in his consideration of the best interests of the child.
24. The judge at [23] referred to a balance sheet exercise, however it is unclear how the child’s best interests or British citizenship were weighed in. Further the judge’s conclusions at [28] fail to demonstrate the weight given to the child’s rights and any impact of separation until 2034. Without such a fact-sensitive assessment of competing factors, as required by Article 8 jurisprudence and section 55, it is unclear how the child’s rights and interests were weighed in the balance sheet exercise. Accordingly, the judge’s assessment of proportionality is flawed and I am satisfied therefore that ground one is also made out.
25. In relation to disposal of the appeal both parties were content for the Tribunal to determine the matter as they considered appropriate. Bearing in mind the general principle set out in statement 7 of the Senior President’s Practice Statements and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)), I decided given the nature and extent of the findings required, particularly in relation to the best interests of the child and the Article 8 proportionality assessment, the appeal ought to be remitted to the First-tier Tribunal for a fresh hearing before a judge other than the original judge.
Notice of Decision
26. The decision of the First-tier Tribunal dated 28 April 2025 involved the making of an error on a point of law and the decision of the First-tier Tribunal is set aside.
27. The matter is remitted to the First-tier Tribunal for a de novo rehearing before any judge other than First-tier Tribunal Judge Lester.

Signed

S Iqbal

Deputy Judge Iqbal of the Upper Tribunal
Immigration and Asylum Chamber

Date 24th December 2025