Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos:
UI-2025-004610, UI-2025-004611
UI-2025-004612, UI-2025-004613
UI-2025-004614, UI-2025-004615

First-tier Tribunal No:
HU/63518/2023, LH/01894/2025
HU/63512/2023, LH/01889/2025
HU/63513/2023, LH/01890/2025
HU/63514/2023, LH/01891/2025
HU/63515/2023, LH/01892/2025
HU/63516/2023, LH/01893/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5th March 2026

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

ENTRY CLEARANCE OFFICER
Appellant
and

KH
WH
AHH
TH
AZH
YH
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Entry Clearance Officer: Mr R Evans, Counsel, instructed by the GLD
For KH and others: Mr P Haywood, Counsel, instructed by RAMFEL

Heard at Field House on 16 February 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, KH and their family members are granted anonymity.

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

DECISION AND REASONS

Introduction
1. For the sake of continuity, I shall refer to the parties as they stood before the First-tier Tribunal: thus, the Entry Clearance Officer is once again “the respondent” and KH and their family members are “the appellants”. Whilst each of the appellants pursued separate appeals before the First-tier Tribunal, there are all linked and I shall refer only to “the appeal”.

2. The respondent appeals with permission against the decision of First-tier Tribunal Judge Blackman (“the judge”), promulgated on 31 July 2025, allowing the appellants’ appeal against the respondent’s refusal of their combined human rights claim (made through an application for entry clearance).

3. This appeal was one of a number stayed by the Upper Tribunal pending judgment in the much-publicised “Gaza case” of IA and Others. Judgment was handed down on 26 November 2025: IA and Others v SSHD [2025] EWCA Civ 1516. By way of directions, the parties were given the opportunity to provide further submissions on its impact on the present appeal.

4. The stay was lifted by a decision of Upper Tribunal Lawyer Manzoor, dated 13 January 2026.

Factual background in summary
5. The appellants are all citizens of Afghanistan. TH and AHH married. The other appellants are their children, all of whom are now adults (although YH was still 17 years old when the entry clearance application/human rights claim was made). The sponsor is the adult daughter of TH and AHH and the full sibling of the other appellants. At some point in or shortly before August 2021, the sponsor was “married” to son of a Colonel in the Afghan army. The sponsor left Afghanistan on 27 August 2021 amidst the well-documented turmoil at Kabul airport. She left on a plane under the auspices of Operation Pitting and was granted indefinite leave to remain as a dependent of her in-laws under the Afghan Relocation and Assistance Policy (“ARAP”), it having been accepted that her father-in-law had close associations with the British Army in Afghanistan. The appellants, who had travelled with the sponsor to the airport, were not permitted to leave as they did not have the required approval under Operation Pitting.

6. It was and is common ground that the sponsor suffers from a number of physical and mental health conditions. From birth, she had a serious heart condition, rheumatic fever and subsequent endocarditis, which has required the monitoring and antibiotic medication. In February 2025 the sponsor was the victim of a road traffic accident caused by the dangerous driving of another (who was subsequently imprisoned for the offence). This resulted in significant physical injuries including spinal fractures and a bowel perforation, which led to reduced mobilisation (the sponsor attended the hearing in a wheelchair) and incontinence, together with depression, PTSD, and social isolation. The sponsor has no other family members in United Kingdom. She has continued to require significant medical and social support in this country.

The judge’s decision
7. On any view, the judge’s decision is a detailed and conscientious piece of work. Providing anything more than a very basic summary here would serve little purpose for at least three reasons. First, its detail and structure mean that even a summary would involve relatively lengthy recitation of the findings. Secondly, I deal with relevant aspects of the decision when setting out my conclusions on whether the judge erred in law. Thirdly, if this case goes further, the judge’s decision itself will be scrutinised in detail.

8. Suffice it to say that:

(a) The judge found all relevant evidence put forward by the appellants to be reliable;

(b) The judge found that there was family life between the sponsor and the appellants from the former’s birth until the point at which she left Afghanistan in August 2021;

(c) The judge found that the sponsor did not form a new family life with her husband and in-laws after her “marriage” prior to her departure;

(d) The pre-existing family life between the sponsor and the appellants continued after the former’s departure from Afghanistan;

(e) The judge found that there was ongoing family life as at the date of hearing, based on emotional dependency;

(f) The judge found that the respondent’s decision was disproportionate.

9. As the respondent had accepted that the appellants would succeed or fail as a unit, the appeal was allowed in respect of them all.

The grounds of appeal
10. Three grounds of appeal were put forward and I deem it appropriate to set them out in full here (all emphases being in the original):

“Ground 1: erroneous conclusion that family life existed between RH and the Respondents
The FTT erred in concluding that family life existed between RH and the Respondents. This is because:
i. RH had been separated from the Respondents for four years;

ii. RH relocated to the UK as a dependent of her father-in-law. Relocation would not have been possible without demonstrating dependency on him, rather than the Respondents;

iii. RH cannot have been dependent on the Respondents for her physical needs, She relocated with her in-laws and has been living without the Respondents for four years;

iv. RH was not subject to forced separation, rather she chose to be evacuated from the UK based on her dependency on her father-in-law;

v. The FTT’s description of the ties between RH and the Respondents being more than emotional are just that, relating as they do to their shared experience in Afghanistan and her voluntary evacuation.

Ground 2: erroneous consideration of risk to their persecution and risk in Afghanistan.
The FTT erred in giving weight to the fact that the Respondents were at risk of persecution and risk of harm in Afghanistan. The reasoning is as follows.
i. The FTT considered the Respondents’ circumstances in great detail at §§29 to 49. In doing so, the FTT concluded that they face persecution and serious harm in Afghanistan (at §46);

ii. The Respondents are not permitted to make a protection claim from outside the UK;

iii. By considering that the risk to the Respondents was relevant to whether family life could continue in Afghanistan, or could continue at all, the FTT effectively permitted the Respondents to make a protection claim from outside the UK and also from their country of origin, contrary to the terms of the Refugee Convention (see §§46 and 98). This is contrary to Khan v UK (2014) 58 EHRR SE15 which stated, at §27: “There is support in the Court’s case law for the proposition that the Contracting State’s obligation under art.8 may, in certain circumstances, require family members to be reunified with their relatives living in the Contracting State. However, that positive obligation rests, in large part, on the fact that one of the family members/applicants is already in the Contracting State and being prevented from enjoying his or her family life with their relative because that relative has been denied entry to the Contracting State […] The transposition of that limited art.8 obligation to art.3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to art.3, regardless of where in the world that person might find himself. The same is true for similar risks of detention and trial contrary to arts 5 and 6 of Convention. [emphasis added]” No member of the family is a recognised refugee, this is not a protection appeal, and in consequence the FTT erred in finding that this is a family separated by persecution and giving that finding weight in the balancing exercise. The finding that the family was separated by persecution is also internally contradictory as the FTT elsewhere finds that it was separated due to the sponsor’s evacuation during Operation Pitting.

Ground 3: erroneous consideration of “compelling circumstances” test
In addition, the FTT erred in concluding that there were compelling circumstances for justifying admission to the UK. Because:
i. The FTT’s assessment of the impact of the data breach was wrong (at §46). The report forming the basis of the Ministry of Defence’s application to lift the super injunction concluded that the acquisition of the data forming the data breach was “unlikely to substantially change an individual’s existing exposure given the volume of data already available”, This conclusion was drawn from the report of Paul Rimmer, a former Civil Servant, who stated, at §47 of his report: “Whilst it is impossible to determine definitively how useful the dataset would be to the Taleban, this review concludes that given the extent of the data already available, the dataset is unlikely to provide considerably new or highly pertinent information to the Taleban. With Taleban targeting increasingly focused on those currently posing a threat to their rule, the dataset is therefore extremely unlikely to offer significant additional information of use to the Taleban in determining this. As such, it appears highly unlikely that merely being on the dataset would be grounds for targeting. It is therefore even more unlikely that family members – immediate or more distant – are likely to be targeted simply as the principal appears in the dataset.” (see Ministry of Defence v Global Media and Entertainment Limited and others [2025] EWHC 1806 (Admin);

ii. RH’s separation was not forced (see §§71 and 97). RH chose to be evacuated based on the status of her father-in-law.”

11. The First-tier Tribunal granted permission on all grounds.

Rule 24 response and other written submissions
1. On 28 October 2025 the appellant’s provided a rule 24 response. Following the handing down of judgment in IA and Others, the appellant’s provided written submissions, dated 10 December 2025. The respondent provided her written submissions on 9 January 2026 (these were out of time, but there is now no contentious issue surrounding this). Skeleton arguments from both sides were subsequently provided.

2. At no stage did the respondent apply to amend her original grounds of appeal.

The hearing
3. Mr Evans confirmed that there was no application to amend the grounds of appeal in light of IA and Others or on any other basis. He submitted that the judgment simply “compounded” the errors set out in the grounds. He confirmed that it was not the respondent’s case that the judge had misdirected himself to the appropriate legal test for whether family life existed; rather, the errors lay in the application of the test. He candidly acknowledged that the first ground had the flavour of a rationality challenge, but submitted that sub-paragraph (v) of the first ground could be read separately from the other points made and that this effectively incorporated what (as I understood it) was a central focus of the respondent’s challenge to the judge’s finding that family life existed. Put shortly, Mr Evans submitted that the judge had only identified the existence of emotional ties and that this did not satisfy the appropriate legal test, as clarified in IA and Others: there was nothing additional in terms of dependency.

4. With reference to a number of passages in IA and Others, Mr Evans submitted that the circumstances of the appellants in Afghanistan were either not relevant at all, or should not have constituted the “main” focus of the judge when assessing proportionality under Article 8(2). Undue weight had been given to this consideration. He submitted that there was an internal inconsistency in the judge’s reasoning as between [65] and [97]: the sponsor had been regarded as a dependent of her father-in-law for the purposes of Operation Pitting and this did not sit comfortably with the judge’s decision that she was dependent on the appellants.

5. As to the third ground, Mr Evans submitted that the sponsor separation from the appellant’s had been voluntary and not forced: she was not a refugee and it was wrong to have categorised the separation as arising from a risk of persecution/ill-treatment by the Taliban. He submitted that the judge had failed to take proper account of the importance of immigration control when assessing whether there were compelling circumstances in the case and that the judge was wrong to have taken the data breach into account as a relevant consideration.

6. Mr Haywood reminded me of the numerous pronouncements by the higher courts for the need for appropriate restraint before interfering with a decision of the First-tier Tribunal. He emphasised the absence of any amendment of the original grounds. He submitted that the judge had undertaken a fact-sensitive approach and, in light of the almost entirely unchallenged evidence, the judge had been entitled to make findings he did and that the conclusions drawn were rational and in all other respects lawful. In essence, he submitted that the judge appropriately focused in the main on the sponsor’s situation in United Kingdom and that there were additional elements of emotional dependency. Further, he submitted that once family life had been found to exist, the judge did not occur in concluding that the respondent’s decision was disproportionate. Nothing said in IA and Others materially undermined the judge’s assessment of the relevant issues in the appeal.

7. In reply, Mr Evans reiterated points already made and submitted that the judge had failed to place proper weight on the appellant’s inability to satisfy the Rules.

8. At the end of the hearing I reserved my decision.

Conclusions
9. At the outset of my analysis I make three observations. First, it is right that I exercise appropriate judicial restraint before concluding that the judge has materially erred in law. The exhortations to that effect are numerous and varied. Several were summarised by the Court of Appeal at [20] of Kapikanya v SSHD [2025] EWCA Civ 987:

“(1) The FTT is a specialist fact-finding tribunal, and the UT should not rush to find an error of law in its decisions simply because it might have reached a different conclusion on the facts or expressed themselves differently, as the appeal is available only on a point of law: see AH (Sudan) v Secretary of State for the Home Department [2007] UK HL 49 [2008] 1 AC 678, at [30];

(2) Where a relevant point is not expressly mentioned by the FTT, the UT should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010 UKSC 49 [2011] 2 All ER 65, at [45];

(3) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and should not assume that the FTT misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 [2013] 2 All ER 625, at [25];

(4) The issues that the FTT is deciding and the basis on which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095, at [27], and

(5) The judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so: see A4 (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 [2020] 4 WLR 145, at [34].

(6) It is of the nature of proportionality assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case and the mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 [2017] 1 WLR 1260, at [107].”

10. I would add to these the well-known proposition set out at [2] of Volpi v Volpi [2022] EWCA Civ 464.

11. From these authorities, I regard myself as obliged to read the judge’s decision sensibly and holistically, to look for substance above form, and not to seek perfection in a detailed decision arrived at after consideration of a good deal of evidence.

12. My second observation follows from that last point. Virtually none of the evidence before the judge was the subject of any meaningful challenge by the respondent. To the extent that any disputes arose, these were resolved in the appellant’s favour. There is no challenge to the judge’s findings of primary fact.

13. Thirdly, I reiterate the fact that there has been no amendment to the grounds of appeal. The respondent has had ample opportunity to have applied to do so if she wished. It is not for me to supplement a party’s case and I remind myself that the “Robinson obvious” principle does not apply in the respondent’s favour in cases such as the present.

Ground 1: family life and Article 8(1)
14. As noted previously, the respondent has not contended that the judge misdirected himself to the appropriate legal test for the existence of family life between adults (in this case between an adult child and their parents and siblings). In any event and for the sake of completeness, I briefly address what the judge said at [50] where he referred to the need for a fact-sensitive assessment to discern whether there was “real or committed or effective personal support between or among the persons concerned.” At [123] of IA and Others, the Court confirmed that the “real, committed or effective support” indicia could constitute an aspect of the test for family life in cases concerning adults, but it was not the test itself. What is required are “additional elements of dependency. When the judge’s decision is read holistically and sensibly, it is sufficiently clear to me that as a matter of substance he was in fact looking for additional elements of dependency going beyond normal emotional ties: see for example [66], [69], [71], [72], [81], and [96]. I shall return to the significance of these passages in due course, but for now I am satisfied that the judge’s overall approach to the family life issue was not inconsistent with IA and Others.

15. I turn to the specific points raised at [11] of the grounds. As submitted by Mr Haywood and implicitly acknowledged by Mr Evans, points (i)-(iv) have the distinct flavour of a perversity challenge. To put it crudely, if it looks like a duck and says “quack” it is likely to be a duck.

16. As regards (i), the four-year separation between the sponsor and appellants since the former’s departure from Afghanistan in 2021 was a factual consideration properly taken into account by the judge when considering whether the pre-existing family life continued: [63]. The judge went on to give careful consideration to the circumstances surrounding the separation and the sponsor’s predicament in the United Kingdom and, on the particular facts of the case, he concluded that the family life had not ceased. The passage of time did not of itself preclude that finding. There is no error of law.

17. As to (ii), the respondent’s reliance on the fact that the appellant left Afghanistan under the auspices of Operation Pitting is in my judgment one of form over substance. The appellant’s short-lived “marriage” to the son of an individual who had assisted the British Army in Afghanistan (a marriage which was found to involve abuse and servitude) was fully considered by the judge when assessing the question of whether the pre-existing family life with her birth family had been replaced with one centred on her in-laws: [55]. The judge made an unchallenged finding that there was no “new” family life with the husband and his family and the sponsor had continued to rely on her birth family for practical and emotional support at the time: [58]-[59] and [64]. The respondent fails to acknowledge this and simply relies on the formal procedures by which the appellant was approved to leave Afghanistan under Operation Pitting. There is no error of law.

18. As to (iii), it is right that the sponsor could not have been dependent on the appellant’s for her physical needs once she left Afghanistan. I accept that the independent social worker’s report referred in the present tense to there being emotional and “practical” support and that the judge placed weight on that report: [72]. However, a sensible consideration of the judge’s analysis satisfies me that he was not in fact concluding that there was practical dependency once the sponsor was in this country. He was clearly aware of the geographical separation and the impossibility of such support. The reference at [72] was in fact to the report and was not a distinct finding that there was current practical support: in truth, it reflected the position prior to the sponsor’s departure from Afghanistan when there was practical and emotional dependency. Finally, it is clear enough from the overall assessment of the family life issue that it was emotional dependency which constituted the basis on which the judge found there to be extant family life. There is no error of law.

19. The point made at (iv) rather ignores the judge’s findings and the reality of the situation at the time when the sponsor left Afghanistan. The respondent suggests that it was perverse, or otherwise wrong, to have concluded that the separation was forced and involuntary, with reference to [65]. However, having found the sponsor’s evidence to be entirely credible, the judge concluded that she and her birth family all attended Kabul airport with the subjective intention of leaving the country together: [8] and [65]. Objectively, the procedures under Operation Pitting had the effect of separating the sponsor from the appellants, but that did not preclude the judge from being entitled to find that this was not, as a matter of substance, a voluntary or intentional act by the sponsor. In short, the respondent’s position has an air of unreality about it. There is no error of law.

20. I now arrive at (v), this being the aspect of the challenge given prominence by Mr Evans at the hearing. He submitted that “the sum” of the factors relied on by the judge when concluding that family life existed disclosed nothing more than emotional ties and these were insufficient to meet the Article 8(1) test, particularly in light of IA and Others.

21. Reading the judge’s decision holistically and sensibly, did he properly identify any additional elements of dependency as between the sponsor and the appellant’s? In answering that question I bear in mind the fact that there need not be complete or exclusive dependency, although there must be some dependency and that it must be more than simply the existence of support: IA and Others, at [120] and [125].

22. My answer to the question is “yes”. It is important to recognise that the judge found there to be dependency from the sponsor’s birth to the point of her departure from Afghanistan in August 2021. It is important to recognise the reasons for that dependency: significant health conditions and the consequences thereof. It is important to reiterate the (sustainable) finding that the sponsor’s departure was not truly voluntary and that she had not established dependency on her in-laws. It is important to recognise the judge’s appropriate self-direction that the pre-existing family life did not necessarily mean that it continued post-departure: [59]. It is important to recognise the judge’s conclusion that the sponsor’s mental health and emotional challenges had increased since her arrival in the United Kingdom when seen “in the context of her physical deterioration and separation from her family”, which in turn must be seen in the context of the unchallenged evidence of her medical conditions and significant support requirements: [60] and [77]-[85]. The fact that the judge addressed the sponsor’s current challenges in a section of his decision following after his conclusion on family life does not in my judgment negate its relevance to the Article 8(1) issue because the decision must be read as a whole and it is sufficiently clear to me that the judge was as a matter of substance having regard to the totality of the evidence and consequent findings thereon. That reading of the decision is entirely consistent with the fact-sensitive approach to which the judge had directed himself. It is important to recognise that this was a case in which the judge found the pre-existing family life to have continued post-departure and not one in which there had been a cessation or the establishment of such a life only once the sponsor had left Afghanistan, unlike the factual matrix in IA and Others.

23. Once these considerations are borne in mind, it is apparent (or at least satisfactorily apparent) that the judge founded his conclusion on family life on the existence of additional elements of emotional dependency as between the sponsor and the appellants. I conclude that he was entitled to do so. The judge found that the sponsor spoke to all of the appellants on a daily basis using video calls and this indicated “a frequency of communication that goes beyond what one might expect between an adult child and adult siblings and parents.”: [66]. The emotional nature of the relationship was fully supported by unchallenged expert evidence: [70]. The judge centred his conclusion on the existence of emotional ties going beyond the norm: [71] and [96]. The judge found that the sponsor’s ongoing separation from her family was likely to be having an adverse impact on her mental health: [81] and [96]. The judge did not conclude that there was total emotional dependency and was not required to have done so. The absence of practical dependency was not fatal to the existence of family life.

24. Overall, I conclude that the judges fact-sensitive approach to the existence of family life under Article 8(1) does not disclose any material errors of law.

Ground 2: Article 8(2)
25. The headline to the second ground of appeal is that the judge erred in “giving weight” to the fact that the appellant’s were at risk of persecution and harm in Afghanistan when assessing proportionality. I turn to address the specific points made at [12(i)-(iii)] of the grounds.

26. As regards (i), and for the avoidance of doubt, the judge’s findings at [40]-[46] that the appellants were at risk of persecution and serious harm has not been challenged. In any event, on the evidence before him, the judge was clearly entitled to make those findings.

27. As regards (ii), the respondent is correct to say that the appellant’s were precluded from making a protection claim from outside the United Kingdom. The judge expressly acknowledged this at [47] and [98].

28. As regards (iii), the respondent relies on [27] of Khan v UK [2014] ECHR 293 for the proposition that transposing obligations under Article 8 to Article 3 would have the effect of creating an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment, regardless of where in the world the individual might be. However, the scenario with which the judge was concerned is readily distinguishable. Mr Khan was in Pakistan and had no family life connections to the United Kingdom. In the present case, the sponsor was in this country and there is a (sustainable) finding of family life as between her and the overseas appellants.

29. The respondent contends that the judge erred in finding that the sponsor had been separated from the appellants as a result of the risk of persecution and therefore on and in voluntary basis. To an extent, I have addressed this argument when considering Article 8(1), above: the judge was entitled to find that the separation was not out of choice on the sponsor’s part.

30. Beyond that, there is once again an air of unreality in the respondent’s position. Whilst the precise eligibility requirements applicable to Operation Pitting were not explored before me, it cannot sensibly be disputed that the evacuation of Afghan citizens from Afghanistan was in the main based on assessment that they were at risk from the Taliban as result of connections to, amongst other bodies, the British Army, albeit that beneficiaries were not granted refugee status. The sponsor’s father-in-law was clearly deemed to be eligible, a fact supported beyond any doubt by the letter dated July 2022 provided by Brigadier D M Wheeler, who had recently served at the Afghan National Academy Officer Academy. He confirmed that the sponsor’s father-in-law was a “very high-profile appointment as the Acting Commandant at the Academy and, together with his “wider family” was at “significant threat from the Taliban, with that threat being exacerbated as result of his close relationship with the United Kingdom military and his strong anti-Taliban rhetoric. It is plain that the sponsor herself was also deemed to be at risk.

31. In any event, the judge made unchallenged findings that the sponsor and the appellant’s were at risk from the Taliban for reasons not associated with Operation Pitting (in respect of the sponsor that is at least implicit in what is said at [46]-[47]).

32. Therefore, on a sensible and holistic reading of the judge’s decision (and taking into account everything said in respect of Article 8(1)), he was entitled to conclude that the separation was, in effect, due to the risk of persecution or serious harm, which in turn supported the conclusion that the separation was involuntary, as that term should properly be understood in this context.

33. For reasons I have set out when considering the family life issue, there is in fact no inconsistency between what the judge said at [65] and [97].

34. Although not clearly set out in the second ground, Mr Evans submitted that any risk of persecution faced by the appellant’s was either irrelevant to proportionality, or that “undue weight” had been placed upon it by the judge. I disagree. IA and Others does not preclude a consideration of the circumstances of family members residing abroad, provided that the “main focus” of the proportionality exercise rested on the sponsor: [142]

35. On a fair reading of the judge’s decision, the main focus of the proportionality exercise was on the sponsor. It was her needs and emotional dependency on the appellant’s which underpinned the finding of family life. That in turn provided the basis on which proportionality was to be assessed. The unchallenged expert medical evidence indicated that the sponsor’s mental health would improve if she was reunited with her family and was being adversely affected by continuing separation: [83], [85] and, importantly, [96]. The judge found that the appellants’ circumstances and the ongoing separation had a “serious impact on the quality and nature of the family relationship between them and the sponsor: [98]. Overall, I am satisfied that the judge anchored his proportionality assessment on the sponsor’s position in this country, with particular regard to her emotional dependency. In that context, the judge was entitled to then go on and conclude that the only means by which the sponsor’s protected family life rights could be maintained was for the appellant’s to be admitted to the United Kingdom (bearing in mind the finding that the sponsor could not return to Afghanistan): [98]. That is the prism through which the judge considered the appellants’ circumstances in Afghanistan.

36. Following from the above, it cannot properly be said that the judge found the respondent’s decision to be disproportionate in order to alleviate the risk to the appellants through a ‘back door’ protection claim. There was no undue focus on the finding of risk, in contrast to the Court’s conclusion of where the Upper Tribunal went wrong in IA and Others.

37. Whilst not specifically raised in the grounds, I would add the fact that in this case the judge found the family life to be strong: [66], [70], [96], and [97]. That too stands in contrast to the facts in IA and Others.

38. The second ground of appeal is not made out.

Ground 3: Article 8(2)
39. The third ground of appeal also concerns the judge’s proportionality exercise. The first point made relates to what is said at [46]: the judge was wrong to have taken any account of, or place weight on, the data breach relating to the Ministry of Defence’s database of information relating to Afghan nationals. There is no substance to this aspect of the respondent’s challenge. The data breach was, at best, a peripheral consideration in the judge’s overall assessment, as is made clear by the last sentence of [46]: “The recent data breach is one factor amongst many that increases the risk of harm to this family, and reaffirms the position that the sponsor is unable to return to Afghanistan to pursue any claimed family life with her family.”

40. The remaining point raised in the third ground goes back to the respondent’s assertion that the separation of the sponsor from a family was not forced and that she “chose” to be evacuated. I have already dealt with this issue at two stages of my decision and need say nothing more about it here.

41. The third ground is not made out.

An additional matter
42. In his reply, Mr Evans sought to argue that the judge had failed to attach appropriate weight to the fact that the appellants could not satisfy the Rules. As rightly pointed out by Mr Haywood, this did not feature in the unamended grounds of appeal. In my judgment, it was not open to Mr Evans to introduce a new point at that extremely late stage of proceedings. If it had been seen as meritorious, there was ample opportunity for it to been included in the original grounds or put by way of an amendment. I do not consider it appropriate to address the matter as a material aspect of my decision.

43. For the sake of completeness, I would in any event conclude that the judge did not err in respect of the Rules. At several points in his decision, the judge acknowledged the appellants’ inability to satisfy the Rules: [27], [88] and [94]. At [94] he confirmed that the inability was “an important factor against allowing the appeal.” Beyond that, and having regard to the propositions summarised in Kapkanya, I am entitled to give the judge some credit and assume that he was aware of the significance of a failure to meet the Rules, in line with what is said in Agyarko v SSHD [2017] UKSC 11.

Summary
44. For the reasons set out above, the judge did not materially err in law and there is no basis on which to set his decision aside.

Anonymity
45. Having acknowledged that was not against a refusal of a protection claim, the judge made an anonymity direction on the basis that the appellant’s were at risk of persecution in Afghanistan. This consideration outweighed the important principle of open justice.

46. Before me, the respondent did not urge me to discharge the direction. Given the circumstances of the appellants - and indeed the sponsor - it is appropriate to maintain the direction. The judge’s finding on risk remains in place and, for reasons I have set out previously, the sponsor is someone directly linked to an individual assessed as being at risk in that country.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law and that decision stands.
The Secretary of State’s appeal is accordingly dismissed on all grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 25 February 2026