Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-004528; UI-2025-004530
First-tier Tribunal Nos: HU/53326/2023; HU/53604/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RUTH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OM; HO
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mr Walker, Senior Home Office Presenting Officer
For the Respondents: Mr Rassmussen of No Borders Law.

Heard at Field House on 12 February 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondents, likely to lead members of the public to identify them or any member of their family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the nature of the international protection claim made by the sponsor. I am mindful of the fundamental principle of open justice, but am satisfied, given the acceptance of the sponsor’s international protection claim and its relevance to the respondents, that the potential grave risks outweigh the rights of the public to know of their identities.
2. The appellant appeals with permission against the decision, dated 28 August 2025, of First-tier Tribunal Judge Byrne (‘the judge’) to allow the appeal on human rights grounds.
Background
3. The procedural background and immigration history which led to the appeal proceedings are not in dispute between the parties. The essence of the matter is that the sponsor (‘AO’) is a recognised refugee from Sudan and the respondents are his brothers. They made applications to enter the UK from Egypt on 18 October 2021 to join AO, rejected by an entry clearance officer on 16 February 2023. The entry clearance officer had concluded the respondents had not established family life by reference to Article 8 ECHR with AO, as adult siblings, and that there were no exceptional circumstances in the case.
Appeal to the First-tier Tribunal
4. The appeal was heard by the judge on 13 August 2025 and allowed on human rights grounds on 28 August 2025. For the purposes of the present proceedings, the following key matters emerge from the decision:
• The judge noted at [8] and [9] that there was no dispute between the parties the appeals could only succeed outside the immigration rules and on the basis that refusal of entry would result in unjustifiably harsh consequences.
• At [25] the judge concludes the relationship between the three siblings amounts to family life as a result of there being more than the normal emotional ties between adult siblings. This is as a result of them living together as minors within a family unit in Sudan before AO fled in 2015, the shared traumatic family history, including the forced disappearance of the father and murder of the elder brother, and the resultant emotional support via video calls, as well as some financial support, since contact between the respondents and AO was resumed in 2021.
• At [28a] the judge concludes the shared traumatic experiences of the family members are of central relevance and create a particularly strong family life, while finding, at [28b-e], that the respondents have a precarious immigration status in Egypt and are at risk of refoulement to Sudan. Since the sponsor also lacks funds to conduct visits, the exercise of family life in Egypt is not reasonable.
• The judge concludes, at [29], that the balance of factors falls in favour of the respondents, such that refusal of entry would have unjustifiably harsh consequences and would be disproportionate in Article 8 ECHR terms.
Appeal to the Upper Tribunal
5. The appellant applied for permission to appeal in reliance, essentially, on the following grounds, which I summarise:
• Ground 1 – the judge’s conclusion that family life exists between the sponsor and respondents is flawed, on the basis he has failed properly to explain how their long physical separation and more recent contact remotely, with some financial support, could amount to family life (Kumari v Netherlands ECtHR, Application 440151/20). Further, the judge has failed to make proper findings as to the nature and quality of any family life that did exist (Arshad v SSHD [2025] EWCA Civ 355).
• Ground 2 – The judge had improperly considered the private life of the respondents and their Article 3 ECHR rights by taking into account the sponsor’s flight from Sudan and failing to consider the possibility of the appellants regularising their status in Egypt so that family life could continue there.
• Ground 3 – The judge had erred by taking into account the Article 8 ECHR family life of the respondents, when the only relevant family life was that of the sponsor. The decision of the Upper Tribunal in Al Hassan and Others (Article 8; entry clearance; KF (Syria) [2024] UKUT (IAC) is wrong in law and the judge erred by placing reliance upon it.
• Ground 4 – The judge failed to give adequate weight to the public interest in immigration control given the precariousness of any family life and had made a possibly perverse finding that the limited finances of the family members are both a negative and positive factor in the balancing exercise.
6. Leave having been refused in the First-tier Tribunal on 15 September 2025, the appellant renewed the grounds on essentially the same basis and leave was granted by Upper Tribunal Judge Reeds on 30 October 2025. Judge Reeds stated:
“1.…ground 1 is arguable that there was a failure to consider whether the relationship described did properly amount to family life rather than the normal emotional ties between adult siblings…and based on the appellants remaining with family in Sudan since the sponsor had left for a significant period.
2. It is also arguable that the FtTJ erred when making the finding they could not remain in Egypt by reaching that finding without consideration of what leave was available or if they had taken steps in this regard…
3. [It] is arguable… that the FtTJ’s assessment of proportionality was flawed by lack of consideration of the strength of the public interest in the context of additional cost to the public in the event of entry clearance…
7. At the error of law hearing I had the composite bundle of 1121 pages. There was no skeleton argument or rule 24 response, despite the directions of Upper Tribunal Judge Reeds with the grant of leave.
8. I therefore took the opportunity to clarity the grounds relied upon by the appellant. Mr Walker confirmed the appellant was not pursuing ground 3 as summarised above and was continuing only with parts of the remaining grounds. The appellant’s case was put on three limbs at the hearing: that the finding of family life between siblings was flawed as the judge had not properly identified additional factors supporting family life between the siblings, that the finding family life could not carry on in Egypt was flawed, as the judge had failed to consider the position in Egypt, and that the judge had failed to give proper weight to the public interest in immigration control, such that his assessment of proportionality was flawed.
9. The appellant made very brief oral submissions, but I heard detailed submissions on behalf of the respondents. The appellant made a brief reply. I deal with any submissions of significance below.
Discussion
Ground 1 - Family life – More than the normal emotional ties?- Quality of family life
10. In relation to this ground, I agree with the submissions made on behalf of the respondents. The case of Kumari, at paragraph [37] of the judgement, mandates a fact sensitive assessment, different in each case, as to whether or not the circumstances demonstrate additional elements of dependency, involving more than normal emotional ties. Kugathas v SSHD [2003] EWCA Civ 31, also endorses such an approach. The judge has undertaken such an assessment in this case, in my view, and the grounds relied upon by the appellant amount to a mere disagreement with that assessment.
11. The judge has set out a range of factors, not limited only to the financial support from the sponsor, at paragraph [25] of the decision. These include the fact of living together as minors before forced separation when the sponsor fled as a refugee, the shared traumatic family history going to the strength and depth of the support given and received following re-established contact after 2021, and the fact that such contact is regular by video and involves ‘constant’ and ‘committed’ emotional support.
12. These factors are properly those that the judge could reasonably take into account given the evidence before him. The weight to be given to those various elements is generally a matter for the judge and, while a different judge might have reached a different conclusion, the assessment as to the weight appropriate to the various factors identified by the judge and going to the establishment of family life was within the bounds of what was reasonable on the evidence before him. This is particularly so given he did identify and take account of the long separation between the siblings in [14] and [15].
13. Furthermore, the judge has explicitly dealt with the question of the nature and quality of the family life between these three siblings as required by Arshad at paragraph [118] of the judgement of the Court of Appeal. At [28a] of the decision, the judge finds that the family life between them is particularly strong given their heavy dependence upon each other in the context of their shared traumatic history and life together as minors before the flight of the sponsor as a refugee. While the judge does conclude, at [28f], that remote communication falls short of the type of family life physical contact provides, it is clear he also concluded the quality of family life in the particular circumstances of these siblings is a strong one despite the physical separation. That was a conclusion reasonably open to the judge on the evidence before him.
Ground 2 – Family life in Egypt?
14. Dealing now with those aspects of ground 2 that were pursued at the hearing, the judge found, at [28c & e] of the decision, that the respondents have a precarious immigration status in Egypt and that this was a factor relevant to the ability of the siblings to enjoy family life together there. The position of the appellant was that the judge reached this conclusion without properly considering the situation on the ground in Egypt, including whether the respondents had or could obtain a more permanent immigration status in Egypt.
15. The argument of the respondents at the hearing was that this factor played no part in the case against them before the judge, was not set out in the refusal letter prepared by the Home Office or in the review, and there was no other evidence before the judge as to the likelihood the respondents could obtain legal status in Egypt. The matter was also not put to witnesses in cross-examination and it could, therefore, not be an error for the judge to have concluded as he did.
16. The position of the respondents is not entirely correct, since the appellant did set out, within paragraph [5(vi)] of the review to the decision dated 23 July 2024, her view that the respondents could regularise their position in Egypt, including by claiming asylum. It is, however, correct to say that the position of the appellant was not supported by any evidence and the only evidence about this matter before the judge was the oral evidence of the sponsor.
17. The judge clearly did accept that evidence after hearing from the sponsor, including after cross-examination. It was therefore within the bounds of what was reasonable on the evidence before him for the judge to conclude the respondents have a precarious immigration status in Egypt, there being no contradictory evidence. The weight to be given to that factor in assessing whether family life could be carried on in Egypt was a matter for the judge. His assessment was open to him on the evidence and findings made.
Ground 4 – Flawed Proportionality Assessment?
18. As with ground one, I agree with the submissions made on behalf of the respondents that the appellant is simply disagreeing with the assessment made by the judge and has not identified any material errors of law.
19. The judge was required to give appropriate weight to the public interest in immigration control, given it was accepted by all parties the respondents could not satisfy the requirements of the immigration rules. The judge did this explicitly at paragraph [26] of the decision. He specifically noted that entry of the respondents is likely to result in greater cost to the public purse [27c] and the fact the respondents do not speak English [27b]. In the context of the judge having set out in detail the requirements of section 117B of the Nationality, Immigration and Asylum Act 2002, that was a proper and reasonable statement of the public interest.
20. As the judge was required to do, he then carried out a balancing exercise setting out matters he considered weighed in favour of the respondents. These included the matters referred to above, such as the particularly strong family life the judge had found existed between the siblings and the precarious status of the respondents in Egypt making family life there unreasonable.
21. The judge also referred to the financial circumstances of the sponsor, suggesting he would not be in a position to travel to Egypt to enjoy family life. The appellant argues that this finding is perverse because the judge had also concluded the financial circumstances of the siblings was a factor weighing against them in the public interest. Even if this was an error, however, it was not a material error since the judge had already reasonably concluded that family life could not be carried on in Egypt because of the precarious immigration status of the siblings. Also, plainly, family life cannot be carried on in Sudan as the sponsor is a recognised refugee and cannot travel there.
22. The judge gave the weight he considered appropriate to the factors he has set out in paragraphs 28 and 29 of the decision in favour of the respondents. Having given appropriate weight to the fact they did not satisfy the immigration rules [ 27a] and that there was a particular public interest in immigration control in those circumstances, it was open to the judge to give greater weight to the factors he had identified in favour of the respondents.
23. While, once again, another judge might have reached a different conclusion, the decision summarised in paragraph [29] was one reasonably open to the judge on the evidence before him and contains no material error of law.
Conclusions
24. For the foregoing reasons I conclude the decision of the judge did not involve the making of material errors of law. The decision of the First-tier Tribunal shall stand.

Notice of Decision
The decision of the judge did not involve the making of material errors of law. I dismiss the appeal brought by the appellant. The decision of First -tier Tribunal shall stand.

Evan Ruth

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 February 2026