Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005405
First-tier Tribunal No: HU/56968/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4th March 2026

Before

UPPER TRIBUNAL JUDGE BLUM

Between

ENTRY CLEARANCE OFFICER
Appellant
and

FEYISAYO BEAUTY OMITOYIN
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Keerthy, Home Office Presenting Officer
For the Respondent: Mr & Mrs Omitoyin, sponsors, appearing in person

Heard at Field House on 23 February 2026

DECISION AND REASONS
1. The Entry Clearance Officer (ECO) has been granted permission to appeal the decision of judge of the First-tier Tribunal (IAC) Hamour, dated 9 October 2025, allowing an appeal against a decision refusing entry clearance to Miss Feyisayo Beauty Omitoyin (the claimant) dated 7 September 2022. I shall refer to the appellant in this appeal as the ‘ECO’ and the respondent as the ‘claimant’.
Background
2. The claimant was born in August 2007 and was therefore 15 years old at the date of the ECO’s decision. She sought permission to enter the UK to join Mrs Precious Omitoyin, who is lawfully present in the UK as the spouse of Mr Oluwole Omitoyin, a British citizen. The claimant maintained that she had been abandoned by her biological parents soon after her birth and had been cared for by Mrs Omitoyin ever since, who raised the claimant as she would her own daughter. Mrs Omitoyin married Mr Omitoyin in 2014, and they had their own child, who was raised as the claimant’s sister. Mr Omitoyin would travel to Nigeria yearly to be with the sponsor, his biological child and the claimant, who he regarded as one of the family.
3. Mrs Omitoyin came to the UK to join her husband in 2020 leaving both her biological daughter and the claimant with her mother. Entry clearance applications were soon made on behalf of the sponsor’s biological daughter and the claimant in 2021. The biological daughter was granted entry clearance in 2022, but the claimant was refused entry clearance. Although the claimant has been legally adopted in Nigeria by Mrs and Mr Omitoyin (evidenced by an Adoption Certificate dated 23 July 2020), Nigerian adoptions are not recognised by the UK. Nor had the requirements for a ‘de facto’ adoption under the immigration rules been met. The claimant could not meet the requirements of the immigration rules for entry clearance as an adopted child. The ECO was not satisfied that the decision constituted a disproportionate interference with article 8 ECHR and refused the human rights application.
The First-tier Tribunal decision
4. Having set out the factual context of the appeal the judge identified the principal issues in dispute. This included whether a Certificate of Eligibility from the Department for Education had been issued and whether the decision constituted a disproportionate interference under article 8 ECHR (the ECO’s decision accepted that the claimant may have family life with her sponsor and sponsor’s husband). The judge heard evidence from both the sponsor and her husband and submissions from both representatives.
5. The judge indicated that she had considered all the documentary evidence before her as well as the oral evidence and submissions. The judge found that Mrs and Mr Omitoyin gave credible and consistent evidence. The judge accepted the claimant had been abandoned soon after birth and that her biological parents had never cared for her, and that Mrs and Mr Omitoyin always regarded the claimant as their daughter. The judge expressly noted that the Nigerian adoption was not recognised in the UK and that the requirements for a de facto adoption had not been met (Mrs or Mr Omitoyin would have had to live in Nigeria for 18 months prior to the entry clearance application on 13 September 2021 and this was not possible as a result of the Covid 19 pandemic and Mrs and Mr Omitoyin’s educational and employment commitments). The judge found that Mrs and Mr Omitoyin had been making all the important decisions for the claimant regarding her education, health and welfare, as well as financially supporting her, and that they communicated almost daily. The judge found that Mrs and Mr Omitoyin and the claimant’s ‘sister’ were distressed by the separation. The judge noted that the claimant was now living in student accommodation because Mrs Omitoyin’s mother had to relocate to South Africa. The claimant was only left behind in Nigeria because the entry clearance grant to the biological daughter was time-limited, and her parents did not want to allow it to expire. The judge found that the claimant was now separated from the family who had cared for her throughout her whole life.
6. When assessing whether the decision constituted a disproportionate interference with article 8 ECHR the judge found that family life ‘existed in the United Kingdom’, and that the decision interfered with that family life. The judge then engaged in a balance sheet approach and weighed up the factors weighing against the claimant and those weighing in favour of the claimant. Having undertaken the balancing exercise the judge concluded that the decision to refuse entry clearance constituted a disproportionate interference with the family life between the claimant and her family in the UK and allowed the appeal.
The ECO’s challenge
7. The ECO contended that the absence of any steps taken by Mrs and Mr Omitoyin to formally adopt the claimant and the absence of a Certificate of Eligibility raised safeguarding concerns and that there were no ‘compelling exceptional circumstances’ for the failure to meet the requirements of the immigration rules. The grounds asserted that there had to be ‘compelling exceptional circumstances’ to justify a grant of leave outside the immigration rules and there was no such finding by the judge. Issue was also taken with the judge’s finding that there was family life ‘in the UK’ given that the claimant lived in Nigeria.
8. At the ‘error of law’ hearing Ms Keerthy adopted the grounds and provided some expansion. She submitted that the judge failed to address safeguarding issues and failed to identify any ‘compelling exceptional circumstances’. I heard submissions from Mrs and Mr Omitoyin who appeared without any legal representation. At the close of the hearing, I indicated that I would reserve my decision.
Discussion
9. The issue I must decide is whether the First-tier Tribunal (IAC) judge made a legal mistake in her decision. It is not the role of the Upper Tribunal judge to set aside a decision of the First-tier Tribunal (IAC) judge merely because the Upper Tribunal judge may have reached a different conclusion.
10. In approach the First-tier Tribunal (IAC) decision it is relevant to set out what has not been challenged by the ECO. The judge considered documentary evidence provided by the claimant including, but not limited to, various photographs of the family members together, correspondence, school documents, a Social Welfare Office report, medical and hospital documents, receipts confirming payments made by Mrs and Mr Omitoyin in support of the claimant, money remittances, and statements. The judge found Mrs and Mr Omitoyin evidence to be credible and consistent. There has been no challenge to this finding.
11. Nor has there been any challenge to the judge’s factual findings, and in particular her assessment of the relationship between the claimant and Mrs and Mr Omitoyin and their own biological child. There has been no challenge to the judge’s finding that the claimant had been abandoned after birth by her birth mother (the biological father had already deserted the birth mother) and that Mrs Omitoyin looked after the claimant in loco parentis, and that since 2014 Mr Omitoyin has also looked after the claimant in loco parentis. Mrs and Mr Omitoyin provided everything parents could be expected to provide to a child by way of love, stability, protection and support. The judge found, and it has not been challenged, that the claimant and Mrs and Mr Omitoyin’s biological daughter have a strong, sisterly relationship.
12. The challenge by the ECO focuses on the fact that the claimant could not meet the requirements of the immigration rules and that no Certificate of Eligibility was issued which raised safeguarding concerns, and that the judge did not identify ‘compelling exceptional circumstances’ when allowing the appeal under article 8 ECHR.
13. The judge was undoubtedly aware that the requirements of the immigration rules were not met. She expressly found that the Nigerian adoption was not recognised in the UK and that the requirements for a ‘de facto’ adoption were not met. When applying the ‘balance sheet’ approach to assessing the proportionality of the ECO’s decision (as endorsed in the Supreme Court decision of Hesham Ali (Iraq) v SSHD [2016] UKSC 60 and subsequently in TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109) the judge expressly took into account the fact that the immigration rules were not met, a point that the judge noted carried ‘significant weight’, and the judge also referred to the importance of the maintenance of effective immigration control. The judge factored this into her proportionality assessment.
14. The judge also acknowledged that no Certificate of Eligibility has been issued. Whilst both the initial decision and the ECO’s review mentioned the need to ensure adequate safeguarding of the claimant, no specific safeguarding issues or concerns have been raised in these documents, or it appears at the hearing before the judge. The need to ensure the safeguarding of any child for whom an application is made to bring to this country is clear. The process that leads to the issuance of a Certificate of Eligibility in respect of adopted children has built in safeguards by way of an assessment of the proposed adoption by a Local Authority or suitable adoption agency. But the particular facts of this appeal were far removed from an attempt to bring a young child to this country where that child has had relatively little involvement or interaction with the proposed adopters. Since she was a very young child the claimant has been living with Mrs Omitoyin and fully regards her as her mother. Likewise, Mrs Omitoyin regards the claimant as her daughter. As a 15-year-old the claimant made her own view known of her relationship with Mrs and Mr Omitoyin in her response to the ECO’s decision. The judge had regard to a swarth of evidence, both documentary and oral, testifying to the quality of the relationship between the claimant and Mrs and Mr Omitoyin. The ECO was represented by a Home Office Presenting Officer at the hearing and the evidence of Mrs and Mr Omitoyin would have been tested. The decision, read as a whole, indicates that the judge did consider and took into account the best interests of the claimant and that he did not fail to adequately consider any safeguarding concerns.
15. To the extent that the grounds contend that the judge was required to identify ‘compelling exceptional circumstances’ when allowing the appeal under article 8 ECHR, this approach is not supported by judicial authorities. GEN 3.2 of the Appendix FM to the immigration rules requires a decision-maker to consider whether there are exceptional circumstances which would render refusal of entry clearance a breach of article 8 ECHR because such refusal would result in unjustifiably harsh consequences for the applicant or their family members. To the extent that the grounds require exceptional circumstances that are additionally ‘compelling’, they misstate the legal test. In her decision the judge noted the distressing impact on Mrs and Mr Omitoyin and their daughter of being separated from the claimant, that the claimant was a child who was alone in Nigeria without any family, that any separation was not due to a lack of family connection, and that video contact and calls were no substitute for a minor child being able to live with the family that raised them. Having balanced these factors against the public interest factors it is necessarily implicit in this assessment that the judge was satisfied there were exceptional circumstances that would result in unjustifiably harsh consequences. This was a finding the judge was rationally entitled to reach for the reasons given.
16. At the hearing, during her submissions, the Presenting Officer referred to IA & Ors v SSHD [2025] EWCA Civ 1516 in support of a submission that the judge has impermissibly considered the article 8 ECHR rights of the claimant who was outside the jurisdiction by reference to the judge’s finding that there was family life ‘in the UK’. In my judgement the reference made by the judge to the family life being in the UK related to the concept of unitary family life between the claimant and her adopted family in the UK. The ECO accepted there was family life between the claimant and Mrs and Mr Omitoyin, and this was a specific and unchallenged finding by the judge. The judge was unarguably entitled to find that there was pre-existing family life given that Mrs Omitoyin has acted as the claimant’s mother from a short time after her birth, and continued to do so after entering this country. The family life in focus in this appeal was that between Mrs and Mr Omitoyin and the claimant, and the judge properly considered that family life by noting the impact on Mrs and Mr Omitoyin and their daughter of the continued separation. Indeed, the minor claimant had no other family life with anyone in Nigeria given that Mrs Omitoyin had relocated to South Africa. In these circumstances I find the judge did not make a mistake in law requiring the decision to be set aside.
Notice of Decision
The ECO/Secretary of State’s appeal is dismissed.

D. Blum

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 February 2026