Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004648

First-tier Tribunal No: PA/53247/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

BO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr Diwnyzc, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 19 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity so as to protect the identity of the child detailed within this judgment.

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

DECISION AND REASONS

Introduction

1. The Appellant appeals, with permission, a decision of a judge of the First-tier Tribunal (‘the Judge’), dated 4th August 2025, which upheld the Respondent’s decision to refuse the Appellant’s claim for leave to remain in the United Kingdom. The Appellant claimed that removal would breach his Article 8 ECHR family life with his wife and his wife’s 12-year-old sister, who has lived with them for around four years.

Background

2. The Appellant is a national of Nigeria. He left Nigeria by plane on 10th February 2006, arriving in the United Kingdom on the same date. He applied for asylum in the United Kingdom on 20th June 2022. That was refused by the Respondent. The Appellant did not pursue an appeal against the refusal of international protection, but did argue that removal would be a disproportionate breach of his Article 8 family life with his wife and her minor sister, who lives with them.

3. The Judge found that the relationship between the Appellant and his wife is genuine and subsisting. He accepted that her sister had lived with them since she was 9 years of age, and for a period of around four years. However, he did not accept that the Appellant has a genuine parental relationship with the child.

4. The Judge concluded, at paragraph 49:

“Having weighed all of the evidence before me in the round, I do not find that the refusal of the Appellant’s application for leave to remain is disproportionate with the rights of the Appellant, his partner and [the child] under Article 8 ECHR. I find in this case that the Appellant’s qualified rights are outweighed by the public interest in the maintenance of effective immigration control and I therefore refuse the Appellant’s appeal on family life grounds.”

Permission to appeal

5. The Appellant submitted two grounds of appeal, in which he argued that the Judge:
a. Failed to properly consider the best interests of the child; and
b. Failed to properly consider the medical evidence regarding the Appellant’s partner.

6. Permission to appeal was granted by another judge of the First-tier Tribunal on 2nd October 2025:

“2. The first ground challenges the judge’s assessment of the best interests of the child and the definition of parent relationship. Although the judge does refer to the child’s best interests at paragraph 38 of the decision it is arguable that this was not a primary consideration. It is also arguable that the judge did not consider the impact on the child of the removal of the appellant from her life, which, even if the judge’s findings about whether this is a parental relationship are upheld would be required notwithstanding the presence in the United Kingdom of the child’s biological mother. Ground 1 therefore identifies an arguable error of law.

3. Ground 2 is potentially weaker. The judge sets out at paragraph 31 why they did not place significant on the medical evidence.

4. In any event permission is not limited. The grounds disclose an arguable error of law.”

Hearing

7. The papers were contained within a 355-page composite bundle. I was assured there was no other documentation.

8. The bundle was prepared by the Appellant’s representatives, who then came off record. The Appellant attended the hearing unrepresented and confirmed that he had received a copy of the bundle and that he was ready to represent himself. I confirmed that I had read the grounds of appeal. He told me that they had nothing to add to those written arguments.

Discussion and analysis

9. Throughout consideration of the appeal, I have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2:

"The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i. An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii. The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv. The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

10. The restricted jurisdiction of the Upper Tribunal was also outlined by the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, which at paragraph 26 summarised the settled case authorities:

“(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];

(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];

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

(iv) the issues for decision and the basis upon 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 paragraph [27];

(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];

(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts 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 at paragraph [107].”

Ground 1 - Failure to Properly Consider the Best Interests of the Child

11. Ground 1 argued:

“7. The Judge accepted there is a genuine relationship between the Appellant and [the child] but concluded it is not “parental” in nature and that her best interests would be served by returning to live with her biological mother if the Appellant were removed [37–38]. This approach is flawed and does not fully explain why the judge determined it was in [the child’s] best interest to return to live with her mother, despite she having been settled with the Appellant and the Appellant’s wife for the past four years.

8. Section 55 BCIA 2009 and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 requires the Tribunal to treat the best interests of the child as a primary consideration, to be assessed first and separately before proportionality. The Judge failed to conduct a freestanding best interests’ analysis, instead subsuming it within proportionality and making it dependent on whether a “parental relationship” existed…

9. Notwithstanding the finding regarding “parental relationship” it was accepted that the Appellant played an active role in [the child’s] life and that she had a strong bond with him. [Her] own letter describing the Appellant as a father figure and the emotional impact on her if he were removed. The Judge did not engage with or give reasons for discounting this evidence in the best interest’s assessment.

10. It is submitted that the best interest of the child were determined by those who did have “parental relationship” with her that the best place for her to live was with the Appellant and the Appellant’s partner, her sister. The judge appears to have determined proportionality and then decided that if the Appellant and his partner were no longer in the United Kingdom [the child] could return to live with her mother. It is submitted that this is not the proper assessment required to determine the best interest of a child who would be directly impacted by the Appellant and his partner having to leave the United Kingdom.

11. The Judge relied on the child’s biological mother’s statement that she could resume care, as being determinative of the matter. The Appellant submits that that the possibility of alternative care does not relieve the Tribunal of the obligation to make a proper and detailed assessment of whether, in the real circumstances at the date of hearing, a change in the child’s primary carer is in her best interests. The existence of a biological parent able to resume care, where the alternative is taken away, is not, of itself, determinative. Arguably, the answer given by [the child’s] biological mother was on the understanding the Appellant and her daughter would have let the United Kingdom and in the circumstances what would happen.

12. The Judge did not address the unchallenged evidence that [the child] had to leave her mother’s home because the mother could not care for her, and that she has since enjoyed stability, routine, and emotional security with the Appellant and his wife. This was plainly relevant to the best interest’s assessment.”

12. The Judge was required to consider whether the Appellant had a parental relationship with the child. Guidance has been provided in assessing whether such a relationship exists in R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship”) IJR [2016] UKUT 00031 (IAC) (emphasis added):

“42. Whether a person is in a “parental relationship” with a child must, necessarily, depend on the individual circumstances. Those circumstances will include what role they actually play in caring for and making decisions in relation to the child. That is likely to be a most significant factor. However, it will also include whether that relationship arises because of their legal obligations as a parent or in lieu of a parent under a court order or other legal obligation. I accept that it is not necessary for an individual to have “parental responsibility” in law for there to exist a “parental relationship,” although whether or not that is the case will be a relevant factor. What is important is that the individual can establish that they have taken on the role that a “parent” usually plays in the life of their child.

43. I agree with Mr Mandalia’s formulation that, in effect, an individual must “step into the shoes of a parent” in order to establish a “parental relationship”. If the role they play, whether as a relative or friend of the family, is as a caring relative or friend but not so as to take on the role of a parent then it cannot be said that they have a “parental relationship” with the child. It is perhaps obvious to state that “carers” are not per se “parents.” A child may have carers who do not step into the shoes of their parents but look after the child for specific periods of time (for example whilst the parents are at work) or even longer term (for example where the parents are travelling abroad for a holiday or family visit). Those carers may be professionally employed; they may be relatives; or they may be friends. In all those cases, it may properly be said that there is an element of dependency between the child and his or her carers. However, that alone would not, in my judgment, give rise to a “parental relationship.”

44. If a non-biological parent (“third party”) caring for a child claims such a relationship, its existence will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely, in my judgment, that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child’s life as the child’s parents as in a case such as the present where the children and parents continue to live and function together as a family. It will be difficult, if not impossible, to say that a third party has “stepped into the shoes” of a parent.”

13. That approach has been reiterated in Ortega (remittal; bias; parental relationship) [2018] UKUT 00298 (IAC), upon which the then President of the Upper Tribunal sat, and approved by the Court of Appeal in Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661.

14. The Judge did not quote the authorities in his determination but he was not required to do so (see Ullah, paragraph 26(v)) and he clearly had the principles at the forefront of his mind in his assessment of whether there was a parental relationship. He concluded, at paragraph 30:

“ …I am satisfied on the basis of the evidence that I have received that the Appellant and [the child] have established a bond and that the Appellant and [the child] spend time together. However, I do not find that the relationship between the Appellant and [the child] is akin to that of the Appellant having what could be termed a parental relationship with [the child]. Although I find that the Appellant does spend time with [her], no evidence has been put before me to indicate that the Appellant takes part in important decisions regarding [her] life.”

15. He continued, at paragraph 31:

“The reasons why [the child] came to live with her sister and the Appellant are somewhat unclear. In his oral evidence the Appellant suggested that this was because her mother, Deborah King, was unable to look after her. No explanation was given as to why that was the case. In her oral evidence, Deborah King suggested that the decision was reached because of her health issues and because she was working variable hours, sometimes thirty-eight to forty hours per week on shifts. Although it may be the case that [the child’s] mother does suffer from health issues, on the basis of her own evidence she is working as a bus driver four days a week and sometimes doing overtime which does not suggest that her health issues are of sufficient debilitating effect to prevent her looking after [the child]. Indeed, it is the case that in her oral evidence Deborah King stated that if the Appellant were required to return to Nigeria, [the child] would return to live with her. In his oral evidence the Appellant stated that the decision about [the child] coming to live with himself and his wife was made by his wife and [the child’s] mother and he was told about a week before [the child] came to live with them that this was going to happen. Whilst that was some years ago, the fact that on his own evidence the Appellant was not involved in the decision about [the child] coming to live with them is not suggestive of a parental-type relationship between the Appellant and [the child], although that relationship has clearly evolved over a period of time. Although I accept that the Appellant has established a bond with [the child], having considered all of the evidence before me in the round, I find that major decisions regarding [the child] would be made by [her] mother with the involvement of the Appellant’s wife.”

16. At paragraph 38 the Judge identified:

“…It is clear from the evidence before me that [the child] continues to have a relationship with her mother. The evidence put before me was that [she] visits her mother on a regular basis in the holidays and I have taken note of the evidence of [her] mother that in the event of the Appellant being required to return to Nigeria, [the child] would return to live with her.”

17. The Judge therefore concluded that the Appellant did not take part in important decisions in the child’s life. He also found that her mother remains involved in her life and, together with the Appellant’s wife, would make those important decisions.

18. His determination that there does not exist a parental relationship between the Appellant and the child was one that was reasonably open for him to make. He gave adequate explanation for his conclusion and clearly applied the appropriate authorities. His conclusions cannot be properly categorised as “plainly wrong” (Volpi v Volpi, paragraph 2(i)).

19. Criticism is made of the Judge’s approach to the best interests of the child. It is argued in the grounds of appeal that he did not treat her best interests as a primary consideration and fell into error by including them in the proportionality assessment.

20. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, at paragraph 33, it was outlined:

“… In making the proportionality assessment under art 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations…”

21. At paragraph 32 of his determination, the Judge identified the structured process as provided in Razgar v SSHD [2004] UKHL 27. In that paragraph he identified the presence of qualifying family life that would be interfered with by removal.

22. At paragraph 33 to 36 the Judge made findings in relation to the Appellant’s inability to satisfy the Immigration Rules; the consequences of his removal upon his relationship with his wife; his length of presence in the United Kingdom; and his ability to live in Nigeria.

23. At paragraphs 37 and 38 the Judge assessed the impact on the Appellant’s removal upon the child. In doing so, I do not accept that he failed to take into account the contents of her letter to the Tribunal about the effect that the Appellant’s removal would have upon her. He stated, at paragraph 7 of his determination, that he had considered all of the documentation provided. There are no compelling reasons to assume that he failed to take the whole of the evidence into consideration (Volpi v Volpi, paragraphs 2(iii) and (iv)). In any event, the letter details activities that the Appellant and child undertake together, but she does not go on to outline the effect that his removal would have upon her. The Judge appropriately referenced section 55 of the Borders, Citizenship and Immigration Act, which imposes the duty to treat a child’s best interests as a primary consideration.

24. From paragraph 39, the Judge identified the public interest of effective immigration control and then undertook the requisite proportionality assessment.

25. As such, the Judge did not “…[fail] to conduct a freestanding best interests’ analysis, instead subsuming it within proportionality and making it dependent on whether a “parental relationship” existed”.

26. The Judge’s analysis of the child’s best interests, including an acknowledgement that she has “a bond” with the Appellant, was detailed at paragraphs 37 and 38 of the Judge’s determination, before he undertook the proportionality exercise:

“37. I have considered the impact upon Angelika if the Appellant were to return to Nigeria. For the reasons previously stated, I do not find that the Appellant has a parental relationship with [the child] although I accept that he has established a bond with her and spends time with her…

38. So far as [the child] is concerned, I have given consideration to the requirements to take into account the welfare of any relevant child under Section 55 of the Borders, Citizenship and Immigration Act 2009. I find that the evidence provided shows only a subsisting parental relationship between Angelika and the Appellant’s wife. It is clear from the evidence before me that [the child] continues to have a relationship with her mother. The evidence put before me was that [the child] visits her mother on a regular basis in the holidays and I have taken note of the evidence of [the child’s] mother that in the event of the Appellant being required to return to Nigeria, [the child] would return to live with her.”

27. The Judge then reflected upon those findings within his proportionality exercise.

28. The argument that the Judge failed to consider the best interests of the child cannot be maintained upon careful consideration of the determination when read as a whole. The Judge evidently directed himself appropriately as to the requirement to treat the child’s best interests as a primary consideration. It is clear from the reading of his determination that he concluded that the Appellant had failed to show that his removal would not be in the child’s best interests or that her best interests would not be served in his absence. In addition to the analysis in paragraphs 37 and 38, the Judge identified in paragraph 42 that the Appellant and the child would be able to maintain contact if he were to return to Nigeria. At paragraph 46 and 48 he identified that the Appellant’s removal would not require the child to leave the United Kingdom and that, as evidenced by her mother, she would be able to return to the care of her mother. He had not accepted that the mother could not care for the child and he had expressly stated that it was unclear why the child had left her mother’s care in the first place. It follows that he was satisfied that the child living with her mother was not contrary to her best interests.

29. The Judge found that, in all of the circumstances, including the fact that the child could return to living with her own mother and maintain contact with the Appellant from afar, and upon all of the other circumstances of the case, the Appellant’s qualified Article 8 rights are outweighed by the public interest in the maintenance of effective immigration control.

30. That was a reasonable conclusion to reach upon the Judge’s detailed consideration of the authorities; the evidence; and all of the circumstances pertaining to the proportionality exercise. It is not vitiated by any error of law. It cannot be properly categorised as “plainly wrong”.

31. Ground 1 amounts to no more than a disagreement with findings properly made by the Judge and is therefore dismissed.

Ground 2 - Failure to Properly consider the medical evidence regarding the Appellant’s partner

32. Ground 2 argues:

“13. The medical evidence regarding the Appellant’s wife showed a long history of mental health problems, including self-harm and suicide attempts. The Judge did not fully consider the totality and seriousness of this medical evidence or the likely impact on her mental health if she were required to relocate to Nigeria or if she were left in the United Kingdom without the Appellant’s support. This was a material consideration that went directly to the proportionality balancing exercise.”

33. The Judge reminded himself of the relevant authorities at paragraph 33 and concluded at paragraph 34:

“In relation to the difficulties which the parties might experience with continuation of their family life if the Appellant were required to return to Nigeria, reference has been made to the medical conditions suffered by the Appellant’s wife. These medical conditions include fibromyalgia and depression. The Appellant also suffers from depression, respiratory issues, and a spinal condition which causes him pain. Whilst I accept that the Appellant and his wife suffer from these conditions, I do not find that the impact of these medical conditions is such that it would be an insurmountable obstacle or cause undue hardship in the event of the Appellant and his partner having to continue their family life together outside the UK. There is no evidence before me to suggest that any medication being taken by the Appellant and his partner would not be available in Nigeria and considering the impact upon the Appellant’s wife of her medical conditions I take into account the fact that on the basis of her oral evidence, she is employed in two different forms of employment which suggests the impact of her medical conditions is not so debilitating as to prevent her from working.”

34. At paragraph 44 he concluded:

“… Whilst I do find that there would be a degree of hardship in continuing the family life outside of the UK I do not find that they meet the threshold of a very serious degree of hardship. I accept that the Appellant’s partner and indeed the Appellant suffer from medical conditions, I do not find that those medical conditions are such that they would be unable to manage their medical conditions in the absence of the other.”

35. He reiterated at paragraph 48 that he had taken into account the medical conditions of both the Appellant and his wife.

36. The Judge therefore clearly had regard to the Appellant’s wife’s medical conditions and noted that they do not prevent her from maintaining two jobs. He gave her medical conditions sufficient weight and analysis and made findings that were reasonably open to him. His findings cannot be categorised as “plainly wrong”.

37. Ground 2 amounts to no more than a disagreement with those findings and is therefore dismissed.

Conclusion

38. The Judge’s determination contains findings of fact that were open to him and conclusions upon adherence to the relevant legal tests. His determination is not vitiated by any error of law.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of a material error on a point of law. The decision shall stand.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21st January 2026