Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005170

First-tier Tribunal No: HU/52427/2024
LH/08189/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOBBS

Between

NAKFA FISSHATSION ANDOM
ANONYMITY ORDER NOT MADE
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the appellant: Ms. A. Imamovic, Counsel instructed by Maya & Co Solicitors
For the respondent: Ms. R. Abdul-Karim, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 9 February 2026

DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge Young-Harry (the “Judge”), dated 9 September 2025, in which she dismissed the appellant’s appeal against the respondent’s decision to refuse his application for entry clearance. The appellant is a national of Eritrea who applied to join his brother, who is present and settled in the United Kingdom with refugee status.
2. Permission to appeal was granted by First-tier Tribunal Judge Iqbal in a decision dated 6 November 2025 as follows:
“2. It is arguable that the Judge has erred in requiring the written consent forms for the DNA tests given they were undertaken by authorised government supplier and as recorded by the Judge at [13] the DNA report itself stated consent was obtained and identities were confirmed. This against the fact that the Judge noted the sponsor and Appellant’s photographs were also included with the report.
3. Although the remaining the grounds have limited merit permission is nevertheless granted on all grounds.”
3. There was a detailed Rule 24 response, but it had not been uploaded onto the system, nor served on the appellant prior to the hearing. It was provided to Ms. Imamovic during the hearing.
The hearing
4. The sponsor attended the hearing. I heard submissions from both parties, following which I reserved my decision.
Error of law
Ground 1
5. It is submitted that the Judge erred by making a material misdirection of law, and/or failing to consider material matters, when finding that the appellant and sponsor were not related as claimed. She failed to consider that the DNA test report came from an ‘authorised government supplier’ and contained a chain of custody declaration. As a result, the respondent had erred in refusing the application by requiring consent forms, and the Judge had erred in her approach to the DNA evidence.
6. Ms. Imamovic submitted that there had been no need to provide consent forms. She referred to the respondent’s DNA Policy Guidance dated 16 March 2020 which had been referred to by the respondent in her review (page 536). She submitted that there was a distinction between an approved provider and one that was listed under ISO/IEC17025, with reference to the respondent’s guidance entitled DNA Testing for British Passport Applications dated January 2026. This states at page 10:
“If a customer voluntarily supplies DNA test results, you must check the company’s accreditation.
If a customer uses a company with ISO/IEC17025 accreditation, you must accept the collection standards have been met.”
7. It was submitted that Alphabiolabs had ISO/IEC17025 accreditation. Further Ms. Imamovic submitted that the Judge had not considered the contents of the report in her decision at all. She referred to the report where it sets out the chain of custody (page 416). This had not been considered. She further submitted that the respondent had relied on the 2020 policy guidance in her review, and therefore the Judge was bound to consider it. At page 16 of the 2020 policy guidance it states:
“Where you have concerns about the DNA sample collection process or the accuracy of the test report, you must verify the results of a DNA test with the testing laboratory by sending a copy of the DNA evidence to the DNA testing laboratory and asking it to confirm whether it issued the report and whether the information contained within the report is accurate.”
8. She submitted that there was no evidence before the Judge to suggest that the respondent had raised any concerns about the collection of samples or the accuracy of the report with the lab. The Judge had failed to consider the respondent’s failure to consider her own policy guidance. Her error in ground 1 was material as it significantly impacted the evidence, and the overall credibility of the appellant and sponsor.
9. I have considered the Rule 24 response and Ms. Abdul-Karim’s submissions. In the Rule 24 response it was submitted that the Judge was entitled to consider whether the report complied with the requirements set out in the respondent’s guidance. It was acknowledged that the lab was accredited, but this did not displace the need for the evidential safeguards. The Rule 24 response stated that accreditation did not confirm that the consent process was properly followed in the individual case.
10. I have considered the decision. At [13] the Judge states:
“The respondent challenges the DNA evidence on the grounds that it is not clear that consent was granted, and the usual chain of consent documentation is missing. In response to this challenge, the sponsor in his statement said he would contact the testing centre to request the documents, however he has failed to do so and claims they did not respond. However, Mr Bircumshaw pointed out that the DNA report states that consent was obtained, and identities confirmed. I note their photographs are included.”
11. The Judge states at [16]:
“Although the sponsor in his witness statement agreed to address the respondent’s challenge by providing the usual consent documentation which should accompany the DNA evidence, he failed to do so. […..]”
12. There is no further reference to the DNA evidence. There are no findings as to the contents of the report, and no reference to the evidence in the report which stated that the chain of custody had been met. The respondent in her decision stated that the DNA evidence was “inadmissible” and gave it no consideration at all. The Judge has followed this approach, and appears to have accepted that the respondent’s challenge to the DNA evidence was correct. Although she records that the appellant’s representative pointed out that the report stated that consent was obtained and identities confirmed, she has not considered this. The Rule 24 response states that the Judge was entitled to consider whether the report complied with the requirements set out in the respondent’s guidance, but she has not done this. There is nothing in the decision to suggest that the Judge has considered the report, and/or whether or not the respondent’s challenge to it was correct. It is acknowledged that there was no evidence to show that the sponsor had contacted the lab to get the documents, and the Judge was entitled to consider this, but she appears to have relied on that failure to mean that the respondent’s challenge was correct without considering the report itself. The appellant’s representative in the First-tier Tribunal made submissions in relation to the contents of the report, as recorded by the Judge, but those submissions have not been considered.
13. The respondent relied on the 2020 policy guidance in her review. However, as submitted by Ms. Imamovic, she did not follow her own policy guidance by verifying the results of the DNA test with the lab. Submissions were made before me regarding the two policy documents, how they related to each other and whether or not consent documentation was needed, on the basis that any error would not be material. However, even if the DNA evidence did not meet the requirements, that does not mean that it should have been disregarded completely. In failing to consider the report and the submissions made regarding the chain of custody, I find that the Judge failed to consider material matters. I find that this is an error of law.
14. It was further submitted by Ms. Abdul-Karim that any error in the treatment of the DNA evidence was not material as the Judge had taken other considerations into account when finding that the appellant and sponsor were not related as claimed. I find that the only other part of the findings at [16] which could go to their relationship, as opposed to the appellant’s age, is “I consider also the questionable text messages shared between the appellant and sponsor”. The Judge stated at [15]:
“Mr Willock asked the sponsor why there are messages between him and the appellant dated in September (it is not clear of which year); in the messages the sponsor asks the appellant to confirm his name and date of birth. The sponsor explains this by suggesting it is because the appellant sometimes uses different spellings for his name, it does not explain however why he is telling the appellant how to spell his own name or his own date of birth in the messages.”
15. However, the Judge makes no findings as to how this evidence shows that the appellant and sponsor are not related. I find that the Judge had before her a DNA report which stated that the appellant and sponsor were related as claimed, which had been completed by an accredited laboratory and where the chain of custody had been verified in the report. While weight is a matter for the judge, to give it no weight and to discount the report on the basis that the sponsor had not followed up on contacting the lab when the evidence was that the chain of custody had been met, is a material error. Nothing else on which she relies in [16] goes to the nature of the relationship between the appellant and sponsor.
16. This error also goes to credibility more generally, and I therefore find that it infects the rest of the decision. I will address briefly the other grounds.
Ground 2
17. The consideration of Article 8 is necessarily infected by the error in ground 1. Having found that the appellant and sponsor were not related as claimed, the Judge nevertheless found that “the appellant’s relationship with the sponsor forms part of the appellant’s private life”. Having found that they are not brothers, there are no findings as to the nature of the relationship such that it would form part of the appellant’s private life.
Ground 3
18. This submits that the Judge made an unfair and contradictory finding regarding the £20,000 loan taken out by the sponsor. The Judge finds at [19] that the sponsor “took out a loan in order to mislead and give the appearance that he could meet the maintenance requirements”. It was submitted that this was not a point taken by the respondent, and that there was nothing misleading about taking out a loan for the purpose of maintenance. It was submitted that the findings were contradictory and unfair. Further, the Judge made no findings on the adequacy of maintenance, even though she acknowledges that the sponsor provided additional documents from his employment.
19. The Judge states at [19]:
“To show the appellant can be adequately maintained, the sponsor took out a £20,000 loan although he claims he had money in his savings account. He claims he did not want to use his money so he took out a loan to show he can access money if needed. His initial answer included something about transferring this money from another account to maintain his savings interest. He then changed his evidence and claimed he took out a loan to give the appearance that he can afford to maintain the appellant. I do not find this explanation credible; I find he took out a loan in order to mislead and give the appearance that he could meet the maintenance requirements. I do accept he provided additional documents showing his income from his employment.”
20. I find that this paragraph is contradictory. The Judge states that she did not find the sponsor’s explanation credible that he took the loan out to give the appearance that he could afford to maintain the appellant, but then finds that he took the loan out to give the appearance that he could meet the maintenance requirements. The Judge has also failed to take into account the sponsor’s income from employment, and whether this showed that he could meet the requirements. It was submitted by Ms. Abdul-Karim that the appellant needed to show maintenance at the date of application, and that these documents took it no further. However, this is a human rights appeal, and whether or not the appellant would have met the requirements as at the date of the hearing was relevant to the wider consideration of Article 8. I find that the Judge gave inadequate reasons for finding that the maintenance requirements were not met.
Ground 4
21. Ground 4 also relates to the proportionality assessment, which must necessarily be infected by the error in ground 1, given that the finding that the appellant and sponsor are not related as claimed cannot stand.
22. I find that the decision involves the making of material errors of law. In considering whether this appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal to be remade I have taken into account the case of Begum [2023] UKUT 46 (IAC).  At headnote (1) and (2) it states:   
“(1)    The effect of Part 3 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision.
(2)    The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal.”     
23. I have carefully considered the exceptions in 7(2)(a) and 7(2)(b).  Given that the error goes to the assessment of the credibility of the appellant’s account, there are no findings that can be preserved.  It is therefore appropriate to remit this appeal to be reheard in the First-tier Tribunal.     
Notice of Decision    
24. The decision of the First-tier Tribunal involves the making of material errors of law and I set the decision aside.  No findings are preserved. 
25. The appeal is remitted to the First-tier Tribunal to be heard de novo.
26. The appeal is not to be listed before Judge Young-Harry.  
27. The appeal is to be heard at Birmingham.   

  
Kate Hobbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
16 February 2026