Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004800
& UI-2025-004801

First-tier Tribunal No: HU/00627/2024
& HU/00629/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 15th of December 2025

Before

UPPER TRIBUNAL JUDGE KHAN

Between
S.D
S.A
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Kim Pullinger, Counsel (Direct Access)
For the Respondent: Mr Matthew Pugh, Senior Home Office Presenting Officer

Heard at Field House on 10 December 2025

Order Regarding Anonymity

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

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. For the sake of clarity, I will refer to the parties in this decision as they were before the First-tier Tribunal.
2. By these proceedings the respondent, the Secretary of State for the Home Department (‘SSHD’), appeals with permission against the decision of the First-tier Tribunal to allow the appellants’ appeals on human rights grounds.
3. SD and SA (‘the appellants’) are adult siblings. They are nationals of Pakistan living in the United Arab Emirates (‘UAE’). Their mother who is living in the UK is their sponsor. She was granted asylum in the UK in November 2019 and has been separated from the appellants since that date. There are 14 siblings, with nine of them living in the UK.
4. On 29 September 2023, the appellants (including another sibling, ‘SH’ who is not part of this appeal), along with their father, applied for entry clearance under the Family Reunion Scheme of the Immigration Rules (‘IR’). The father’s visa was granted on 19 January 2024, but the appellants’ applications were refused by the respondent.
5. In brief, the appellants’ applications were refused on the grounds that they failed to meet the requirements of the Family Reunion Scheme, and there were no exceptional circumstances under Article 8 ECHR.
6. The appellants appealed the respondent’s refusal decisions to the First-tier Tribunal. In a determination promulgated on 08 April 2025, the appellants’ appeals were allowed, following an oral hearing, by First-tier Tribunal Judge Sharma (‘the judge’).
7. Permission to appeal was granted to the respondent by First-tier Tribunal Judge Wilson on 07 October on all grounds.
8. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
9. The appellants and the respondent were ably represented by Mr Pullinger and Mr Pugh, respectively. I am grateful to them for their very helpful submissions.
10. The First-tier Tribunal Judge made an anonymity direction and that direction is maintained.
Grounds
11. The respondent’s grounds submit that the First-tier Tribunal erred in law in the following manner:
i. Ground 1: The Tribunal erred in failing to adequately consider why family life was said to be engaged between the appellants and the sponsor in the UK, and therefore the applicability of IR FRP 7.1.
ii. Ground 2: The finding of the judge that the refusal of entry to the UK engaged a right protected by Article 8 ECHR was inadequately reasoned and is undermined by the failure to apply the correct legal principles.
iii. Ground 3: The judge’s assessment of the proportionality of the decision for the purposes of Article 8(2) was vitiated by a failure to consider material matters and was perverse.
iv. Ground 4: The judge erred by giving substantial weight to the circumstances of the appellants outside the UK when considering whether Article 8 ECHR would be breached by refusing them entry clearance to the UK.
v. Ground 5: The judge erred in considering the Article 8 ECHR rights of the appellant, rather than only considering the Article 8 family life rights of the sponsor.
Submissions
12. Mr Pugh for the respondent submitted that the respondent considered that grounds 1 & 4 were the principal areas of focus but that she relied on all five grounds in support of her appeal.
13. Mr Pugh started by submitting that the determination findings of ‘committed and effective dependency of the father on the appellants’ at [36] must be viewed as fatally flawed in light of the decision of the Court of Appeal in IA and others v SSHD [2025] EWCA Civ 1516 which endorsed the test found in Kumari v The Netherlands 44051/20, 10 December 2024. Kumari held that family life for the purpose of Article 8 ECHR is normally limited to the core family and there will be no family life between parents and adult children or adult siblings unless they can demonstrate ‘additional elements of dependence, involving more than the normal emotional ties’.
14. Mr Pugh observed that although the judge rightly assessed the evidence as of the date of hearing (26 March 2025), this was more than one year after the father had moved to the UK when SD (nor SA) had been his carer. Mr Pugh also pointed to the obvious contradictions in SD’s witness statement dated 30 September 2024, which the judge did not resolve. At [7], SD stated she was unmarried and had been caring for her father for many years. However, at [12], SD stated ‘I have not seen my mother for five years and my father for several years due to his detentions.’
15. Mr Pugh took me to the father’s letter sent to the ECO dated 6 October 2023, where he stated that he could not leave his children behind in the UAE because they depend on him ‘for emotional and psychological support and [he] in turn on them for [his] care.’ Mr Pugh submitted the fact that the father did leave the appellants in the UAE served to undermine the assertion that SD was his primary caregiver, as he would not have done so, unless he reasonably anticipated that one or more of his nine children in the UK would be able to care for him.
16. Turning to ground 2, Mr Pugh said this ground picked up on the same issues in ground 4 but was just phrased differently. In relation to a question raised by the Mr Pullinger regarding what was meant by the reference to family life being ‘precarious’ given that the term was usually used to refer to an appellant in the UK whose status was uncertain and subject to removal, rather than to an appellant living abroad, Mr Pugh, explained it was not used as a ‘legal term of art’ but rather to refer to the limited arrangements by which SD’s role as primary caregiver did not last very long.
17. Turning to grounds 4 and 5, Mr Pugh observed there was some overlap. He submitted that the First-tier Tribunal was wrong to give substantial or any weight to the circumstances of the appellants outside of the UK when considering whether Article 8 would be breached by refusing the appellants entry to the UK. Further, the First-tier Tribunal could not consider the private life of the appellants or their Article 3 ECHR rights given the territorial scope of the Human Rights Act 1998.
18. Mr Pugh relied on IA at [141] where the Court of Appeal stated that ‘Once family life is held to exist, it is indeed unitary (see Beoku-Betts [2008] UKHL 39 and SSHD v Abbas [2017] EWCA Civ 1393 at [18]). But the family life in question is between the sponsor and the brother or between the sponsor and the family if that had been found to exist.’
19. At [142] of IA the Court of Appeal stated ‘Moreover, even if family life had existed between the sponsor and the brother or between the sponsor and the family, that would not have meant that the Article 8 rights of the brother or the family outside the UK were the main focus of the proportionality exercise under Article 8 ECHR. The main focus of that exercise would have been the family life of the person within the jurisdiction of Article 1 (the sponsor), but that family life had to be considered as being a unitary family life with his brother or the family outside the UK.’ At [144], the Court of Appeal stated ‘ the UT relied unhelpfully on a series of UT authorities (e.g. KF (Syria) and Al-Hassan) rather than on MN v Belgium, Beoku-Betts and Abbas…...’
20. Mr Pullinger for the appellants asked me to treat the document titled ‘Response to Grant of Permission to Appeal’ as the Rule 24 response. I agreed to do so because the appellants prepared it themselves and it represents their genuinely held views.
21. Turning to ground 1, Mr Pullinger submitted that it amounted to no more than a mere disagreement with the First-tier Tribunal’s determination. He relied on the decision of Volpi & Anor v Volpi [2022] ECWA Civ 464 for the proposition that appeal courts should not interfere with a judge’s findings of primary facts unless the judge was plainly wrong meaning that no reasonable judge properly directed could have reached the conclusion.
22. He observed that the decision in IA had only recently been promulgated and therefore the judge could be forgiven for not using the exact language used by the Court of Appeal. What was important was that the judge applied the substance of the decision in IA and was entitled to make a finding of family life.
23. In relation to ground 2, Mr Pullinger submitted that the appellants undoubtedly had a connection to the UK because members of their immediate family lived in the UK and they had visited from time to time.
24. In respect of ground 3, Mr Pullinger observed that ‘perversity’ was a high bar. Further, there had never been a question about the appellants being a burden on the State, nor had there been any consideration before the First-tier Tribunal of the appellants’ finances or their ability to speak English. It was also clear from the determination that the judge clearly had their mind on the relevant public interest considerations under section 117B, Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’).
25. Finally, in respect of grounds 4 & 5, Mr Pullinger submitted that the decision in IA confirmed that family life was ‘unitary’ in nature and did not find that the decision in Al-Hassan was wrong. In his view, nothing in IA decided that only the rights of the sponsor are to be considered.
26. Finally, Mr Pullinger submitted that the skeleton argument before the First-tier Tribunal submitted that if family life had not been established, then in the alternative, it was clear that there was at least a private life between the appellants and their parents and siblings in the UK which was continuing. At [37] the judge accepted that in the alternative, there was an existing private life based on the factors she identified at [37 (a)-(g)].
Findings and reasons
27. Despite Mr Pullinger’s spirited submissions I have no hesitation in concluding that the grounds clearly disclose errors of law in the decision of the First-tier Tribunal.
28. Ground 1: The judge stated at [36] of the determination ‘The witness statements of L and those of the appellants describe, however, the emotional dependency and the extent of the care provided by the appellants to their father. I find from that perspective there is dependency and therefore family life between the parents and the appellants. Based on the appellants’ witness statements, where they described the level of care they had provided to their father before separation, there was committed and effective dependency of the father on the appellants.’
29. The decision in IA makes a number of important points about establishing family life between adult siblings and their parents under Article 8 ECHR:
(i) family life for the purpose of Article 8 is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate ‘additional elements of dependence, involving more than the normal emotional ties’ [113].

(ii) the legal test is no different between parents and adult children and between adult siblings [119].

(iii) the correct test is the one in Kumari [35] and Beoku-Betts [39]. The real, committed, or effective support test on a proper analysis is different from the additional elements of dependency test. Dependency may in one sense be the other side of the support coin. But real support may be provided without any serious dependency. Even ‘effective support’ might be provided without there being meaningful dependency. Real, committed, and effective support is not the test itself because the level of real support may be minor or insignificant whereas the word ‘dependency’ denotes as significant relationship [122] –[123].

(iv) Kumari makes it clear that it is harder for adults to demonstrate the necessary dependency because family life is normally limited to the core cohabiting family. The examples in Kumari at [38]-[39] make clear the kinds of physical and mental dependency that might qualify [125].
30. Mr Pullinger submitted that even though the judge did not use the language of the Court of Appeal in IA she nonetheless properly applied the substance of the legal test. With respect, I disagree. The judge appears to have accepted on the basis of the witness statements that because there was some evidence of care to the father and emotional dependency, that was sufficient to demonstrate family life under Article 8 ECHR. She manifestly failed to realise that the test is an ‘exacting’ one where adult siblings need to demonstrate the necessary dependency with their parents. Further, she applied the wrong legal test, referring to ‘committed and effective dependency’ rather than the test set out in Kumari [35] that required the demonstration of ‘additional elements of dependence, involving more than emotional ties’. That was an error of law.
31. The judge’s reasoning on demonstrating dependency failed to take into account a number of material factors, including that the mother and the appellants had been separated since 2019; the fact that their father resided mostly in Pakistan while they were in the UAE and that he had only gone to the UAE to await his visa, and therefore the period during which the appellants had been the primary caregivers was very limited, coupled with the fact that by the time of the hearing, the father had already been in the UK for over one year presumably receiving care from one or more of his other nine children in the UK.
32. Overall, the judge manifestly failed to assess the nature and quality of the relationship between the appellants and their father and sponsor mother in accordance with the legal test in Kumari which required the identification of ‘additional elements of dependency involving more than the normal ties of emotional ties between a parent and child.’ The judge also failed to properly consider whether the father’s medical conditions were of the kind of physical dependency that might qualify.
33. For the foregoing reasons, it is clear that the judge’s findings on family life under Article 8 ECHR at [36] involved the making of an error of law.
34. Grounds 2 & 4: Turning to grounds 2 & 4 which to a large extent overlap, the issue is whether the judge erred by giving substantial or any weight to the circumstances of the appellants outside the UK when considering whether Article 8 ECHR would be breached by refusing the appellants entry to the UK. In this regard, the judge found at [39]-[41] that refusal of entry to the UK engaged a right protected by Article 8 ECHR thus presupposing the existence of a positive obligation.
35. Several issues raise from these two grounds. In respect of presupposing a positive obligation, the authority of Jeunesse v The Netherlands [2015] 60 EHRR 17 at [106], held that while there may be ‘positive obligations’ inherent in the effective ‘respect’ for family life, the applicable principles between a State’s positive and negative obligations are nonetheless similar and in both contexts regard must be had to the fair balance that has to be struck between competing interests, and that the State enjoys a certain margin of appreciation. The same approach was taken in Konstatinov v The Netherlands (Association No 16351/03) at [46] and [48] where it was stated that ‘the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the person involved and the general interest….’.
36. In the determination, it is evident at [39]-[41] the judge presupposed the existence of a positive obligation which she treated as a relevant matter in her assessment of whether Article 8 ECHR was engaged. That approach was contrary to the relevant caselaw which establishes that a fair balance has to be struck between competing interests and that the State has a wide margin of appreciation. The judge’s failure to have regard to the correct legal principles and the fact that the refusal of entry clearance continued the status quo amounts to an error of law.
37. For the sake of completeness on ground 2, the respondent submitted that the appellants did not have any real connection to the UK. Mr Pullinger disagreed on the basis that the appellants have their immediate family in the UK and have visited which constitutes a connection with the UK. I agree with Mr Pullinger on this point, but that does not change my view based on the foregoing reasons that the respondent’s ground 2 has been made out.
38. Another issue that arises, concerns whether the judge erred by giving substantial or any weight to the circumstances of the appellants outside the UK when considering whether Article 8 ECHR would be breached by refusing the appellants entry to the UK.
39. In the determination at [37] & [39] the judge concerned herself with the quality of the life of the appellants outside of the UK. The decision of IA makes it clear at [141]-[144] that once family life is held to exist it is indeed unitary and that the main focus of the proportionality exercise must be on the family life of the person within the jurisdiction of Article 1 (the sponsor) but that family life has to be considered as being a unitary family life with the family abroad. Accordingly, it is clear from the decision in IA that it is not only the sponsor’s rights that must be considered but also the appellants from aboard, and that the main focus of the proportionality assessment under Article 8 ECHR must be focused on the person (sponsor) in the UK who is within the jurisdiction of Article 1 ECHR.
40. In light of IA, it is clear from the determination that the judge having found family life at [36] did not make the sponsor the main focus of the proportionality assessment under Article 8 (2) ECHR at [39]-[41], but instead placed significant weight on the difficulties faced by the appellants’ conditions abroad. That was plainly an error of law.
41. The final issue under ground 4 relates to the judge’s findings made in the alternative at [37] regarding the appellants’ existing private life. For the same reasons, I have identified regarding the flawed proportionality assessment, the findings on private life must also fall on this basis, and also because of the error of law regarding the presupposed positive obligation under Article 8 ECHR mentioned earlier.
42. Ground 3: This ground concerns whether the judge’s assessment on proportionality for the purposes of Article 8(2) ECHR was vitiated by the failure to consider material matters, particularly a failure to appreciate the mandatory public interest considerations and to recognise that the appellants’ family life was precarious.
43. The determination at [18] indicates that the judge had the public interest considerations in mind under s. 117B NIAA 2002 and, at [41] there is an attempt to apply them. In the decision of R (Ayarko) v SSHD [2017] UKSC 11, the Supreme Court at [54] recalled that the European Court had repeatedly acknowledged that "a state is entitled, as a matter of well-established international law, and subject to its treaty obligations, to control the entry of non-nationals into its territory and their residence there" and accordingly effective immigration control is a weighty public interest consideration.
44. The determination while referring to section 117B fails to properly identify the strength of the public interest in the mandatory considerations. The treatment of the factors in my view is cursory and inadequate thereby vitiating the proportionality decision under Article 8(2) on the basis of irrationality. In this regard, I use the phrase ‘irrationality’ to mean that no sensible person who applied their mind to the question could have arrived at the decision. For the sake of completeness, I should add that I have taken into account the explanation provided by Mr Pugh regarding the reference to the appellants’ life being at the ‘precarious end of the spectrum’ and the failure of the judge to properly factor this into the proportionality assessment under Article 8(2) ECHR.
45. Ground 5: I now turn to the respondent’s final ground. As noted by both parties, grounds 4 & 5 substantially overlap. I adopt my earlier reasons under ground 4 to find that the making of the determination involved an error of law by the judge failing to make the sponsor in the UK the main focus of the proportionality exercise under Article 8(2) ECHR.
46. It follows from the foregoing, that the decision of First-tier Tribunal Judge Sharma contained several material errors of law and must be set aside.
47. I canvassed the parties in respect of further steps in the event of a finding of a material error of law. The parties inclined towards remitting the case to the First-tier Tribunal for a full rehearing if there were significant errors across the appeal grounds.
48. Given the nature and extent of the errors of law and having considered the decision of Begum [2023] UKUT 46 IAC, I consider that it is appropriate for the matter to be remitted for a de novo hearing before a judge other than Judge Sharma.

Notice of Decision
49. The respondent’s appeal is allowed as the making of the determination of the First-tier Tribunal involved material errors of law. The decision of the First-tier Tribunal is set aside. This matter will be remitted to the First-tier Tribunal for a fresh hearing. No findings are preserved.

K.A.Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 December 2025