Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004993
First-tier Tribunal No: HU/53155/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25th March 2026

Before

UPPER TRIBUNAL JUDGE HIRST

Between

Asma Uzzaman
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Ferguson, counsel instructed by Kalam Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 22 December 2025

DECISION AND REASONS

1. The Appellant appeals from the decision of the First-tier Tribunal dated 20 August 2025 dismissing her entry clearance appeal on human rights grounds. Permission to appeal was granted by the First-tier Tribunal on 26 October 2025.
2. The matter came before me at an error of law hearing on 22 December 2025. Unfortunately this decision was then delayed by my prolonged absence on sick leave. I apologise to the parties for the delay.
3. For the reasons set out below I have decided that the First-tier Tribunal decision involved the making of a material error of law. The decision is set aside and the appeal is remitted to the First-tier Tribunal for a de novo hearing.

Background
4. The Appellant is a national of Bangladesh. On 21 November 2023 she applied for entry clearance to join her partner, Mr Akhtar Uzzaman, who is a British citizen. The Appellant and the sponsor have two sons, both of whom are also British citizens. The older son, who was 15 at the time of the First-tier Tribunal hearing, lives with his father in the UK; the younger, who was 9 at the time of the appeal, lives with the Appellant in Bangladesh.
5. The Appellant’s entry clearance application was refused because although she met the other requirements of the Immigration Rules, she did not meet the English language requirement in paragraph E-ECP 4.2 of the Immigration Rules. At the time of the First-tier Tribunal appeal hearing, the Appellant’s case was that she should be exempted from the English language requirement because she was illiterate and had a limited education (although it was conceded in the hearing before me that the Appellant did not meet the requirements of the Immigration Rules).
6. The First-tier Tribunal dismissed the appeal. The Tribunal found that the Appellant could not meet the English language requirement, and concluded that although Article 8 family life existed between the parties, the refusal of entry clearance was not disproportionate to the public interest in maintaining effective immigration control.
7. The Appellant sought permission to appeal, which was granted by the First-tier Tribunal on 26 October 2025. On 29 October 2025 the Respondent filed a Rule 24 response to the appeal. The appeal came before me at an error of law hearing on 22 December 2025. Having heard submissions from the parties I reserved my decision, which is given with reasons below.
Basis of the appeal
8. The Appellant relied on three grounds of appeal:
a. The judge had misdirected himself at paragraph 33 of the decision by stating that a higher threshold applied to Article 8 ECHR in entry clearance cases;
b. The judge had failed to mention the best interests of the two children in his assessment of proportionality or exceptional circumstances;
c. When considering the situation of the younger child, the judge had failed to consider whether the refusal of entry clearance would be unjustifiably harsh.
9. The Respondent accepted in the Rule 24 response that the judge had misdirected himself at paragraph 33, but maintained that the error was not material to his decision.
Discussion and decision
10. The judge considered Article 8 outside the Immigration Rules at paragraphs 30-35 of the decision. Having found (§31) that family life existed between the Appellant and sponsor and their children and that the refusal of entry clearance constituted an interference with that family life, he then went on to consider whether the refusal was proportionate. At paragraphs 33-34, the judge stated:
“33. Going on to consider the appellant’s appeal with reference to Article 8 of the ECHR. There is a higher threshold in respect of Article 8 relating to entry clearance cases. The refusal of entry clearance merely maintains the status quo. The appellant is living with her younger son in Bangladesh and they have lived with her all of their lives. I find that she is the appellants’ primary carer and has sole responsibility for him. All of their needs are being maintained in Bangladesh with financial assistance from the sponsor in the UK when required. The appellant’s elder son is living in the UK in close proximity to his father and stepsister and extended family members. The refusal of entry clearance is in the public interest in respect of maintaining effective immigration control noting that the appellants have not met the requirements of the Immigration Rules. I find that the refusal of entry clearance does not breach the appellants’ rights under Article 8 of the ECHR in these circumstances.
34. I find that the appellant’s case is not amongst the cases that the Supreme Court anticipated would be allowed in the case of Agyarko. I find that there are no significant factors warranting the appellants’ appeals being allowed having regard to appropriate case law. The appellants have not substantiated their claims under Article 8 of the ECHR and I therefore dismiss the appeals on human rights grounds.”
11. As the Respondent accepts, the judge erred by directing himself that a “higher threshold” applied to Article 8 cases. The question for the Tribunal was simply whether, considering all relevant factors, the refusal of entry clearance was proportionate to the legitimate aim of immigration control in the particular circumstances of this appeal. Whilst the assessment of proportionality is always fact-sensitive, the assessment is not subject to a different threshold depending on whether the decision in question is a refusal of entry clearance or another decision engaging Article 8 rights.
12. The First-tier Tribunal’s misdirection as to the relevant threshold was material to the outcome of the appeal. Having decided that the Appellant did not meet the requirements of the Immigration Rules, the proportionality of the refusal of entry clearance was the central issue for the Tribunal to determine. It is apparent from paragraphs 33-34 of the decision that the judge applied the higher threshold by giving weight to the maintenance of the ‘status quo’. However, having already accepted that the ‘status quo’ involved an interference with family life, giving weight to the maintenance of the status quo was in effect double-counting the refusal of entry clearance itself as a factor relevant to the proportionality of that decision. It is not possible to say that the judge would have reached the same conclusion as to proportionality had he not misdirected himself as to the threshold.
13. That was however not the only material error in the decision. Despite having directed himself that he should consider the best interests of the Appellant's children as a primary factor in the case, the judge did not assess or make any findings as to where their best interests lay. That was a material error, as the Supreme Court has recently made clear: CAO v SSHD [2024] WLR(D) 454.
14. Nor did the judge consider, as part of his proportionality assessment, paragraphs GEN 3.2 and 3.3 of the Immigration Rules and consider whether there were exceptional circumstances which would mean that the refusal of entry clearance had unjustifiably harsh consequences for the Appellant or for the other family members. Although Agyarko v SSHD [2017] UKSC 11, to which the judge referred, does consider ‘exceptional circumstances’, the Supreme Court was concerned there with cases in which family life had been formed ‘precariously’ during periods of unlawful residence, a factor not present in this case. The relevance of Agyarko to the circumstances of the Appellant's case was therefore unclear and required more detailed reasoning from the judge. In any event, the judge did not consider either expressly nor in substance whether the continued separation of the family would have unjustifiably harsh consequences such that the refusal of entry clearance was not proportionate.
15. For these reasons, I consider that all three of the Appellant's grounds are made out. The decision of the First-tier Tribunal contained material errors of law and I set it aside. I consider that the appropriate course is to remit the appeal for a de novo hearing in the First-tier Tribunal before a different judge.
Notice of Decision

The decision of the First-tier Tribunal contained material errors of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a de novo hearing before a differently constituted Tribunal with no findings preserved.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 March 2026