Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005155
First-tier Tribunal No: HU/00187/2025
HU/54548/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

JANET DONGO
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms S. Bokhari, Counsel, instructed by BPA Immigration Lawyers
For the Respondent: Mr M. Parvar, Senior Presenting Officer

Heard at Field House on 10 August 2026

DECISION AND REASONS

Background

1. By a decision dated 11 January 2026, I, sitting in this Tribunal, based on the concession made by the respondent at the hearing, found that the first-tier judge made an error of law dismissing the appeal against the respondent’s refusal of entry clearance under Article 8 of the ECHR. In consequence of the error found, I set aside that decision and gave directions for a hearing to be remade in this Tribunal. The Tribunal’s error of law decision is annexed for ease of reference.

2. The facts of the appellant’s case are set out in paragraphs 2 and 3 of the error of law decision and do not require repeating.

The Issues and Legal Framework

3. The respondent has refused the appellant entry clearance to join her spouse on the basis that she cannot meet the financial requirements set out in Appendix FM of the Immigration Rules (the “Rules”).

4. The respondent does not dispute that Article 8 is engaged because of the family life between the appellant and the sponsor.

5. In absence of the appellant providing any relevant financial information Gen 3.1 of the Rules is not engaged and the appellant relies on Gen 3.2 which provides that where an application for entry clearance is made that does not otherwise comply with the Rules the decision maker must have regard to whether, on the basis of the information provided by the appellant, there are exceptional circumstances which would result in breach of Article 8 because refusal would result in unjustifiably harsh consequences for the appellant or other affected family members.

6. Gen 3.2 was introduced following the Supreme Court’s decision in R (on the application of Agyarko) v The Secretary of State for the Home Department [2017] UKSC 11 so that there is a complete framework for a consideration of Article 8 claims under Appendix FM that did not otherwise meet the rules that requires a test of proportionality between the competing public and private interests.

7. When assessing an Article 8 claim within the rules under Gen 3.2, as confirmed by the recent Court of Appeal decision in AA (Morocco) v Secretary of State for the Home Department [2025] EWCA Civ 144 at 38, I am required to conduct a balancing exercise between the interference with the appellant’s family life and the rights of those family members who may be impacted by the refusal of the entry clearance against the public interest. I am required in that analysis to have regard to those factors in S 117B Nationality, Immigration and Asylum Act 2002 (‘Section 117B”).

Evidence and Refusal of Adjournment

8. I had before me a supplemental bundle from the appellant consisting of 39 pages, an additional bundle of 14 pages consisting of an updated witness statement from Mr Ezekiel Mungoni, the sponsor, payslips from Air Zimbabwe and from Ontrak Recruitment. Ms Bokhari presented two additional documents at the hearing (i) a contract from Air Zimbabwe with the Sponsor dated 4 March 2008 (the “2008 contract”) and (ii) a letter from Dr Alexander dated 17 April 2026 relating to the sponsor’s persistent headaches.

9. Through no fault of either party or their representatives I had not received the evidence before the start of the hearing and briefly adjourned to read it.

10. The sponsor gave oral evidence and relied upon his two witness statements and was cross- examined by Mr Parvar. As part of the sponsor’s evidence, he referred to a new contract which he had entered into with his employer, Air Zimbabwe at a salary of £48,000 at the beginning of July 2026 (the “new contract”) but did not have a copy of that contract or any evidence of its terms. In light of that, I adjourned for an early lunch break to allow an opportunity for the sponsor to provide evidence of that new contract.

11. On resumption, Ms Bokhari explained that due to their being a bank holiday in Zimbabwe it had not been possible to obtain the contract and a letter was being requested from Air Zimbabwe but that such letter would not be available until later in the week and requested an adjournment.

12. I declined to exercise my inherent power under Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 of adjournment having specific regard to the overriding objective in Rule 2 to deal with a case fairly and justly. The appellant had been given a fair opportunity to prepare and present her case and no credible reason had been given as to why the contract or any supporting letter could have been made available for the hearing. Nor had the appellant addressed the issue of why such evidence would materially assist her case given the 2008 contract which had been in place up until the time of entry into the new contract had never previously been referred to in any submission to the respondent or at any previous hearing and the payslips presented by the sponsor were almost exclusively from Brook Street and Ontrak which presumably refer to a different employment. Accordingly, I concluded it would be fair and just to refuse the adjournment having regard to the interests of all parties and the avoidance of unnecessary delay and the efficient use of judicial resources.

Submissions

13. Ms Bokhari relied on her skeleton argument and submitted that there were exceptional circumstances which resulted in unjustifiably harsh consequences for both the appellant, her sponsor and adult children. The appellant, now aged 70 and the sponsor, aged 69 were formally married in 2010 and she had been granted five entry visas between 2003 and 2018 for periods of between one and three years. Ms Bokhari explained that the reason that no application for entry had been made between 2018 and 2022 was that a number of family members had died and she had to remain in Zimbabwe in order to administer their estates.

14. Ms Bokhari submitted that in any proportionality test I should take account of the length of time that the appellant had been in the UK and the length of her relationship with the sponsor, her compliance with the terms of all previous visas, her community ties and church activities whilst in the UK and the effect that the ongoing separation was having on both the health of the appellant and her sponsor given that both live alone.

15. Additionally, Ms Bokhari submitted that given the cost of her grandchildren travelling to see the appellant in Zimbabwe she was being deprived of the opportunity of seeing her wider family in person.

16. Mr Parvar relied on the respondent’s refusal letter dated 3 March 2023. Mr Parvar referred to IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516 and the importance that the Court of Appeal placed on the respondent’s policies as reflected in the Rules. In the current case, exceptional circumstances had not been made out, the status quo had been that the appellant and the sponsor had lived separately in different countries since the sponsor moved to the UK in 2003. Additionally, the case had not been established that the appellant would not become dependent on state resources. The sponsor had failed, on numerous occasions, to establish that he had sufficient resources to support the appellant and whilst it was acknowledged that the appellant had not accessed state funding on her previous visits that did not mean she would not do so in the future in absence of the sponsor demonstrating appropriate financial means.

Discussion

17. It is not disputed that Article 8 is engaged because of the family life between the appellant and the sponsor. The issue for me to determine is whether, notwithstanding the appellant has not been able to satisfy the financial eligibility requirements of the partner route under Appendix FM of the Rules, there are exceptional circumstances which would render refusal of entry clearance a breach of Article 8 because such refusal would result in unjustifiably harsh consequences for the appellant, her partner or family members.

18. In applying the balancing test to determine whether this interference with the appellant’s family life is proportionate, I give some weight both to the length of the appellant’s relationship with the sponsor, the time she spent in the UK and her immigration history given the number of previous entry clearances which have been granted and that there being no evidence of the appellant having over-stayed on any occasion. I also give some weight to the appellant being deprived of having physical contact with her grandchildren, recognising it is uneconomic for them to visit the appellant. Additionally, I recognise that it would be challenging for the sponsor to relocate to Zimbabwe given his established residence in the UK for 23 years and the requirement for him to in the UK for his employment.

19. In terms of the evidence relating to the appellant’s ties in the community which were developed as a visitor, whilst I have no reason to doubt the credibility of either the appellant or the sponsor, the evidence provided was thin. The appellant’s witness statement refers to having lived in the community and interacting with people through work and social life, that she carried out work with St John’s Anglican Church in Crawley and the fact that she has been employed and paid tax. Similarly, the sponsor’s statement is consistent but adds no further detail. Given the absence of any supporting information or other more specific evidence on the depth of community ties I attach little weight to this aspect of the claim.

20. On the medical evidence, the sponsor’s second witness statement 2 August 2026 refers to him suffering from acute anxiety and stress and serious headaches which he believes to be linked to his separation from the appellant. Additionally, he refers to the appellant losing a significant amount of weight due to the separation. A letter from Dr Porter dated 17 April 2026 from the neurology department of Surrey and Sussex NHS Healthcare was relied upon which suggests the sponsor suffers from a “cervicogenic” headache. The letter concludes that the sponsor may benefit from physiotherapy to his neck which suggests that although the headaches are unpleasant, they are not particularly serious. No further evidence was given on the sponsor’s stress or the appellant’s weight loss. Again, I attach little weight to this evidence given the lack of any specificity and supporting evidence either in the skeleton argument or in the oral evidence.

21. I am required to consider under Section 117B (3) as to whether the appellant would be financially independent so as not to be a burden on taxpayers. No evidence was provided by the appellant on her personal financial position instead it was the sponsor’s income that was relied upon to satisfy this requirement. The 2008 contract presented suggested an annual income of over £50,000 which if it was capable of being adequately documented would enable the appellant to fall within the requirements of Appendix FM. The sponsor’s explanation of why this information was not capable of being provided was that he was paid in Zimbabwean dollars into a local account and he was able to withdraw this money through a bank card. This money had been used to buy the appellant a house and pay the mortgage and currently there was a significant sum of money standing to the credit of that account. Again, no supporting evidence was provided – no relevant bank statements, payment slips from Air Zimbabwe other than a single one for 26 March 2026 or tax returns as the sponsor stated he paid UK tax on these amounts. No explanation was given as to the continuing validity of the 2008 contract was given notwithstanding that it was for a three-year period after which time “you may be reassigned to other duties”. There were a number of Nationwide and Barclays Bank account statements included with that contract but in the absence of some explanation as to their relevance I can attach no weight to them. The sponsor in oral evidence indicated that a new contract had been entered into in early July to reflect his promotion. No explanation was given as to why the salary of around £48,000 in the new contract was at a lower sum than the 2008 contract given the promotion. Similarly, in the additional evidence there were a number of payslips from Ontrak covering the weeks 1 May 2026 to 10 July 2026 with no explanation as to their relevance or how it was possible to have an additional role when the 2008 contract was expressed to be a full-time employment.

22. On the basis of the evidence before me whilst I accept that the appellant in all previous occasions has not had access to public funds it is not possible to conclude that the appellant is capable of being considered to be financially independent so as not to be a burden on the state.

23. I also take note of the Court of Appeal’s observations in IA in the approach to the weight to be given to the importance of immigration control when it was held at 169:

“It is the responsibility of the SSHD and the Government to make policy decisions as to what is necessary to protect the economic well-being of the UK and the rights of citizens of the UK. The courts and tribunals must respect those policy decisions and not seek to get around them save in very exceptional or compelling circumstances.”

24. Balancing the interference with the appellant’s family life against the public interest in the maintenance of effective immigration control, enhanced by the risk that the appellant is not considered financially independent, I conclude that the public interest outweighs the interference. It follows that the refusal of entry clearance will not result in unjustifiably harsh consequences.

Notice of Decision

The appellant’s appeal is dismissed.

Mark Stamp

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 August, 2026

Appendix

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005155
First-tier Tribunal No: HU/00187/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

JANET DONGO
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLERANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Munenosi, the appellant’s husband
For the Respondent: Ms Newton, Senior Presenting Officer

Heard at Field House on 7 January 2026

DECISION AND REASONS

Background

1. The appellant appeals, with permission, the decision of First-Tier Judge Harris dated 3 September 2025 on the basis that it contains an error of law. The judge dismissed the appeal against the respondent’s refusal of entry clearance under Article 8 of the ECHR.

2. The appellant is a citizen of Zimbabwe and had applied for entry clearance to join her husband in the UK. The appellant had been granted entry clearances on five previous occasions and claimed that she had provided the necessary documentation to meet the financial eligibility requirement set out in Appendix FM of the Immigration Rules and, in addition, that her private and family life were protected under Article 8.

3. The judge, having considered the financial evidence provided, concluded the appellant had not discharged the burden of proof to establish she had met the necessary financial criteria required under the Immigration Rules. In terms of Article 8, the judge acknowledged that it was engaged and in applying the proportionately test in the Article 8 analysis, the maintenance of effective immigration control outweighed the appellant’s right to family life and therefore the refusal of entry clearance was not unjustifiable harsh and would be proportionate.

4. Permission to appeal was granted in part by First-tier judge Elliott on 9 October 2025 on the basis that it was arguable that the judge made a material error of law in failing to take into account all the relevant circumstances of the case in making the proportionality findings in his Article 8 analysis.

The respondent’s concession at the hearing

5. Ms Newton, on behalf of the Secretary of State, conceded that the judge had made a material error of law in his application of the Article 8 proportionately test, based on his focus on “very significant obstacles” as the test rather than “unjustifiably harsh consequences” set out in Gen 3.2 of the Immigration Rules.

6. Whilst I am not required under paragraph 40 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to give a written decision in light of the concession I do so to confirm my view that the concession was properly made and there was no proper basis for me to reject it.

Analysis

7. The judge commenced, in paragraph 17, his analysis of Article 8 correctly by focussing on the balance sheet or proportionality test laid down by R (Razgar) v SSHD [2004] UKHL 27 but he primarily focuses on the issue of “very significant obstacles” as to whether the sponsor would be able to re-integrate into Zimbabwean society. The very significant obstacles test is one which does not apply in an entry clearance situation and, in any event, relates to an exception based solely on private life. The ability of the sponsor to reintegrate is one of the factors that the judge could legitimately take into account in his Article 8 analysis but given his sole focus on this issue and the absence of reference to any other factors such as the length of time the appellant has legitimately been in the UK and her community ties it is not possible to conclude that the judge applied the correct test set out in GEN 3.2 of the Immigration rules in relation to unjustifiably harsh consequences. Had the judge done so, it is possible that he might have come to a different decision. Accordingly, I accept the concession and find it properly made.

8. I have reflected on the submission by Ms Newton as to the appropriate disposal. I was urged to retain the appeal in the Upper Tribunal for remaking.

9. In determining this issue, I have applied the principles set out in AEB [2022] EWCA Civ 151 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I also carefully considered whether to retain the matter for remaking in the Upper Tribunal in line with the general principles set out in paragraph 7 of the Senior President’s Practice Statement 2018. Taking into account the submissions, the history of the case, the nature and extent of the findings to be made and paragraphs 7.2(a) and (b) of that Practice Statement I consider that it is appropriate to retain the matter in this Tribunal for rehearing and for the parties to have the opportunity to submit additional evidence.

Notice of Decision

The decision of First-tier judge Harris dated 3 September 2025 involves the making of an error of law in relation to the consideration of Article 8. I set aside the decision in relation to paragraphs 17 to 24. I preserve the findings at paragraphs 8 to 16. The appeal will be retained in this Tribunal for re-hearing. I have given the following directions in relation to disposal.

Directions

1. Within 28 days from the date when this decision is sent, the appellant shall file with the Tribunal and serve on the respondent a consolidated bundle of all evidence on which she wishes to rely, together with a skeleton argument which is cross-referenced to that bundle.

2. Within 42 days of the date on which this decision is sent, the respondent shall file and serve a skeleton argument which is cross-referenced to the appellant’s consolidated bundle.

3. The appeal will be relisted for a resumed hearing in the Field House UTIAC before any available judge after 49 days from the date when the decision is sent with a time estimate of a half day. The appellant’s solicitors must notify the Upper Tribunal if an interpreter is required.

Mark Stamp

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 January 2026