Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004987 (HU/01869/24)
UI-2025-004989 (HU/01870/24)
UI-2025-004990 (HU/01868/24)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MY
NY
AS
(anonymity order made)
Respondents

Representation:

For the Appellant: Mr Schwenk, Direct Access
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

Heard at Civil Justice Centre, Manchester on the 5 May 2026

Anonymity

Unless and until a tribunal or court directs otherwise, the Respondents are granted anonymity. No report of these proceedings shall directly or indirectly identify the Respondents, Sponsor, or any member of their family. This direction applies to, amongst others, both the Appellant and the Respondents. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
1. The Respondents are siblings born, respectively, in May 2008, January 2010 and February 2013. They are all nationals of Eritrea. They seek leave to enter and remain in the United Kingdom on human rights grounds. The particulars of their claims are that they are all minors (or were at the date of application) who wish to live here with their elder sister (D), a recognised refugee and, insofar as Eritrean law is concerned, their legal guardian.
2. The applications for entry clearance were refused by the Entry Clearance Officer (ECO) on the grounds that the children were unable to meet any of the relevant immigration rules set out in Appendix Family Reunion. The claims had been based on the provision relating to refugee family reunion, which they could not satisfy, inter alia because D was not their parent.
3. The children appealed against that the refusal of entry clearance and by its decision dated the 25 July 2025 the First-tier Tribunal allowed their linked appeals on human rights grounds. The Entry Clearance Officer now has permission to appeal against that decision, granted by Upper Tribunal Judge Kebede on the 27 November 2025.
4. The ECO advances several grounds of complaint. The original grounds, pleaded unsuccessfully to the First-tier Tribunal, made five points. The renewed grounds specifically adopt the arguments made in the original grounds but then go on to repeat them at some length, adding new ones and amending them as they go. This second set of ground are numbered 1-6 but confusingly these numbers do not correspond to the grounds as originally pleaded. Before me Mr McVeety readily acknowledged that the grounds were repetitive and unnecessary verbose, and helpfully organised his oral submissions under two headings: family life and proportionality. I will adopt that structure below. Before I do so, it is worth setting out some family history for context.
5. These are the facts as found, unchallenged in this appeal. There are four children in this family, of whom D is the eldest, born in 2004. When D was a young child she lived with her parents and siblings in Eritrea. In 2012 her father was arrested, when her mother was already pregnant with the youngest child, AS. The father has never been seen again. AS was born in February 2013 and the four siblings continued living in Eritrea with their mother. In her witness statement D describes how her mother suffered stress and terrible “heartache” in this period as she tried to find her husband; within a matter of months of her baby’s birth she became ill and died. The children left the family home and went to live with their grandfather, who became their primary carer. D fled Eritrea in 2016 and her siblings carried on living with their grandfather. Grandfather died in May 2017. The Respondent children were then passed to an uncle, who agreed to look after them. In April 2023 that uncle facilitated D’s application to be named as her siblings’ legal guardian. The Respondent children all left Eritrea in January 2024 and are now living alone in Uganda, having sought asylum there. An adult neighbour known to the family looks in on them, but they are financially dependent on D, who sends them between £300-500 per month, according to her ability. D is in regular and close contact with her siblings, through daily telephone calls and whatsapp messaging. From the summary submissions set out in the First-tier Tribunal decision, it does not appear to have ever been in issue that these children have, to date, lost four primary caregivers– their father, their mother, their grandfather and then their uncle. Nor is it in issue that D is the only adult remaining in this natal family.
Family Life
6. In its original form, as pleaded to the First-tier Tribunal, the ECO’s first ground criticises the First-tier Tribunal for reaching the conclusion that there was here an extant family life for the purpose of Article 8. In the recast grounds submitted to the Upper Tribunal, the submission is that in fact there is no finding at all on that matter, the position that Mr McVeety adopted before me. Before I address that argument, I deal briefly with the grounds as originally argued. I do so because I think it important to highlight the fallacious and misleading nature of the argument presented.
7. Ground 1 originally read: “ Making a material misdirection in law on any material matter: Failure to apply the findings of the ECtHR in Kumari v. The Netherlands Application 440151/20 when finding that family life exists between the sponsor and the appellant”. Under that heading various submissions on the facts precede an assertion that the Tribunal materially erred in “failing to apply the principles” in Kumari, identified as being that financial dependency alone is insufficient to establish a family life. This is the first hint in the grounds that the author perhaps overlooked the fact that the claimants here are not adults seeking to join a relative in the UK, that being the factual scenario, and narrow Article 8 field, considered in Kumari, and indeed Kugathas [2003] EWCA Civ 31, the authority cited by the ECO in the refusal letter. The claimants here were children. Unlike the position of adult siblings, they were not therefore in the position of having to demonstrate some particular dependency to establish an Article 8 family life existed with their sister. Whether that existed was, to be sure, a question of fact, but unlike the applicants in Kumari or IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516, there was no requirement to show “additional elements of dependence, involving more than the normal emotional ties” [IA §38].
8. The grounds go on to assert that the First-tier Tribunal took an “oversimplistic approach” to the question of family life, finding it to be established on the “simple basis” of regular contact plus financial support. With respect to the author of the grounds, this is an objectionable argument for several reasons (see above), but I only need point one out here. That is that it is clear from the ‘reasons for refusal’ letters (identical in each case) these were the only matters raised by the ECO. Having – erroneously in my view - directed themselves to the principles in Kugathas, the ECO impliedly finds family life not to be demonstrated, saying this:
“Although money transfer records have been provided from your sponsor, which may suggest financial dependency, it is noted that the receiver is not linked to any of the applicants within this application, it cannot be verified that these transfers were between the sponsor and applicants. In addition, communication records have been provided, this may suggest emotional dependency however this is limited”.
9. At the hearing the HOPO representing the ECO did not add materially to this submission, simply cautioning the Tribunal that family life cannot be “assumed” [FTT §13]. Having had regard to all of the evidence, including the credible oral evidence of D and her former foster mother in the UK (who was able to speak to both the frequency and emotional nature of the contact between D and her siblings) the Tribunal was satisfied that there was both significant financial and emotional dependency. Those being the benchmarks set by the ECO themselves, it is very difficult to understand why the First-tier Tribunal is now being criticised for this “oversimplistic approach”.
10. I return to the position adopted by Mr McVeety, as articulated in the recast grounds: that in fact the First-tier Tribunal reaches no express finding on whether there is a family life in this case. The closest that the Tribunal comes to making such a finding is at its paragraph 40 where under the heading ‘Article 8 balancing exercise’ it says this:
40. I have considered whether article 8 ECHR and GEN 3.1 and 3.2 apply. Although Article 8(1) is be engaged, the Rules were not met for the reasons given above. I have considered the fair balance that had to be struck between the competing public interest and an individual's interests in applying the proportionality test.
Mr McVeety submits that he does not understand what “Article 8(1) is be engaged” means.
11. It is unfortunate that the Tribunal nowhere says something like “I am satisfied that there is a family life in this case because…”. It is unfortunate because here we are in the Upper Tribunal, but it is also unfortunate because it is quite clear in my view that it found the burden on the appellants before it to be discharged. I say this for the following reasons:
i) As I identify above, the ECO seemed to think that the ‘test’ required both financial dependency and close emotional bonds. The Tribunal decided both those matters in the family’s favour, accepting the evidence that D sends up to £500 per month to her siblings, and that the children rely on the “emotional and practical support” of their sister [at FT §46(f)];
ii) It is clear from the structure of the decision that the Tribunal considers the ‘threshold question’ of whether there is a family life to be resolved in the family’s favour;
iii) The extraneous “be” at §40 of the decision is in my view quite clearly a typographical error. That line is intended to be read “although Article 8(1) is engaged”.
12. Even if I am wrong about this, and contrary to my reading of its decision, the First-tier Tribunal forgot to turn its mind to whether Article 8(1) was even engaged, I am satisfied that on the facts as found, it plainly was. Asked to articulate the ECOs case for why it wasn’t, Mr McVeety reverted to the position expressed in the refusal letters, that there is limited evidence of financial support or emotional dependency. As I set out above, I am satisfied that the First-tier Tribunal, which heard the extensive evidence on these matters, resolved both these questions in the family’s favour.
13. I would add that the question of whether there is a family life for the purpose of Article 8 has to be assessed holistically and in the context of the family history as a whole. The relevant history is that this was a family group separated in circumstances of forced migration. D has been recognised as a refugee in the UK in line with the extant country guidance in MST and Ors (National Service – risk categories) (CG) [2016] UKUT 443 to the effect that young women like her who seek to avoid the draft into the Eritrean army are at a real risk of torture, inhuman and degrading treatment. The subsequent migration of the children themselves is similarly to be seen in light of Eritrea’s appalling human rights record. The relationship that the children have with their sister must also be evaluated in light of the accepted evidence that she is the only surviving member of their natal family, their father having “disappeared” into custody and their mother having died. This is the context in which D’s former foster carer Ms Scott describes the children as seeing D as their “protector and source of hope”, and support worker Ms Whelan speaks of D’s “deep concern” for her siblings. It is quite natural that as the eldest, D feels an enormous sense of responsibility for the Respondents, just as it is natural that they, children in a precarious and difficult situation, look to their big sister to look after them. It is the very essence of a family life. Accordingly ground 1 is dismissed.
Proportionality
14. The ECO submits that the Tribunal’s proportionality assessment is flawed in a number of ways.
15. The first, identified at ground 2 of the original grounds, is that the Tribunal placed “determinative” weight on the circumstances faced by the children in Uganda. The grounds contend that far from being determinative, that matter was entirely irrelevant, since the First-tier Tribunal “could not consider the private life of the appellant(s), or their Article 3 ECHR rights, given the territorial scope of the Human Rights Act 1998 and the ECHR”. A number of authorities are cited in respect of that proposition.
16. With respect to the author of the grounds, I think this rather misses the point. The children were not applying for entry clearance to enable them to enjoy a private life in the UK. They were applying for entry clearance so they could be reunited with their sister, thereby enjoying a family life with their legal guardian and only surviving adult member of their natal family. As to the circumstances in Uganda being “determinative” I would reject that submission. Whilst the First-tier Tribunal properly attaches significant weight to the best interests of these children, it also has regard to other relevant circumstances such as the fact that this family split results from forced migration, and the position of the Sponsor.
17. Next the grounds assert that the First-tier Tribunal failed to “properly assess whether the relevant relationship (the family life of the appellant with the sponsor) could continue if the appellant was not granted entry to the UK”. Before me Mr McVeety clarified that it was not the Secretary of State’s case that D could leave the UK and go to seek asylum in Uganda with her siblings. Rather the point being made is that the relationship at present was primarily carried on by modern means of communication, supplemented by visits where possible. Why could this not continue? Again, I find myself wondering if the author of these grounds lost sight of the fact that the applicants for entry clearance were in this case unaccompanied minors. The First-tier Tribunal properly directed itself to authorities on the best interests of children in the immigration context, including AT and another (Article 8 ECHR – Child Refugee – Family Reunification) Eritrea [2016] UKUT 227 (IAC) and Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC). Having done so it was entitled to conclude that the ongoing physical separation from their sister was unjustifiably harsh, concluding at its 46(e), rightly in my view, “I accept modern means [of communication] is no substitute for face to face contact”
18. Ground 3 of the original grounds asserts that it was an error of law for the First-tier Tribunal to consider the Article 8 rights of the Respondent children, rather than just the Article 8 rights of D:
“… For the purposes of Article 1 of the ECHR, Eritrea/Uganda are not within the UK’s territorial jurisdiction, and there is no other jurisdictional connection between the appellants and the UK. (see Ali supra at [40] and [59])
c) It is submitted that Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 does not constitute authority for the proposition that the FTTJ can consider the Article 8 ECHR family life rights of a person who is outside the jurisdictional scope of the UK’s obligations under the ECHR. It held, in the context of the refusal of leave to remain in respect of a person with the UK, only that in a human rights appeal brought on Article 8 family life grounds the Tribunal is required to consider the Article 8 rights of the appellant and those in the UK with whom they share family life for the purposes of Article 8 of the ECHR.
d) To the extent that the observations in Abbas supra at [16]-[19] suggest otherwise, it is maintained that these were obiter and are not supported by the decision in Beouku-Betts or the decision of the ECtHR in Khan v. UK (2014) 58 EHRR ES15.
e) It is therefore respectfully submitted that for the same reasons the decision in Al Hassan and Others (Article 8; entry clearance; KF (Syria) [2024] UKUT (IAC) at [20]-[28] is wrong insofar as it treats the “unitary” nature of family life as a basis for extending the UK’s obligations under the ECHR (solely in respect of Article 8) to individuals who are outside the UK’s jurisdiction. It is therefore respectfully submitted that the FTTJ materially erred in law by considering the ECHR rights of the appellant, rather than only considering the Article 8 rights of the sponsor.
19. Yet again, the author of the grounds appears to erroneously applied to this case the principles relating to entry clearance for the purpose of private life. Ali and Abbas are both concerned with private life, reaching the uncontroversial conclusion that it will only be in the most unusual of circumstances that an individual could compel a grant of entry clearance with reference to section 6(1) Human Rights Act 1998 to enable them to enjoy a private life in the UK. None of that is relevant here. Insofar as the grounds assert that Beoku-Betts is not applicable in entry clearance cases, they are plainly wrong, as Mr McVeety accepts.
20. Ground 4 of the original grounds introduces what is I think a novel concept, submitting the First-tier Tribunal to have erred for “failing to recognise that the Appellants family life was precarious”. It goes on to contend that the facts here were at the “extreme end of the precariousness spectrum”. I have no idea what that means. Mr McVeety thought it might be a reference back to the point that this family life is presently conducted remotely, or that it was in the view of the ECO a family life that was weak or non-existent. For the reasons I give above I find this argument to be without merit.
21. Ground 4 of the original grounds also contends that First-tier Tribunal’s assessment of proportionality is “unsustainable” because it has failed to “identify properly the strength of the public interest in the Respondent’s decision, applying the mandatory public interest considerations relevant to this appeal”. In particular it is said that the First-tier Tribunal failed to acknowledge the strong public interest in immigration control.
22. This is simply not true. The Tribunal expressly directs itself to the public interest considerations set out in s117B Nationality Immigration and Asylum Act 2002 at its §20. At §28 it notes that before it can assess Article 8 it must first apply the immigration rules. Between §29 and §39 it undertakes that assessment, and in doing so makes several findings in favour of the ECO and against the Respondent family. At its §40 the Tribunal prefaces its proportionality assessment by saying:
“I have considered the fair balance that had to be struck between the competing public interest and an individual's interests in applying the proportionality test”
Then at §41 expressly records that “the public interest lies in the maintenance of effective immigration controls”, again reminding itself of this matter at §46 when the point comes first in its ‘balance sheet’ analysis.
23. Notwithstanding the First-tier Tribunal’s repeated reference to the public interest, the point is taken with renewed vigour in the recast grounds. This time the author has identified other public interest considerations that are allegedly missing from the assessment1, eg the fact that the family are not financially independent. This too is without merit: the Tribunal expressly recognises the difficult financial situation that D is in at its §10(f), §17 and §46(d). It clearly weighed those circumstances in the balance. The Tribunal was plainly well aware of the family’s situation, difficult financial circumstances and the lack of English language certificates; I am satisfied, because it discusses them at some length, that it further understood that the Respondent children were unable to meet the requirements of the rules. Overall I am satisfied that the Tribunal was, on the facts, entitled to reach the decision that it did. The grounds are in many respects legally and factually wrong; moreover they are in essence an attempt to re-argue the case put to, and properly rejected by, the First-tier Tribunal.
Decision and Directions
24. The decision of the First-tier Tribunal is upheld and the appeal of the ECO is dismissed.
25. I make an order for anonymity in this appeal because the Respondents are asylum-seeking minors.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
7 May 2026