Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005410
UI-2025-005411, UI-2025-005412

First-tier Tribunal No:
HU/55191/2024, LH/06604/2024
HU/55192/2024, LH/06606/2024
HU/55194/2024, LH/06607/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 June 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

1. UMAIR ZIA
2. ABDUL HADI
3. ABDUL MUID
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Did not attend and were not represented
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 9 April 2026

DECISION AND REASONS

1. The appellants appeal against the decision of a Judge of the First Tier Tribunal (‘the judge’) dated 17 March 2025 dismissing their appeal against the respondent’s decision to refuse their human rights claim.

2. Permission to appeal was refused by the First-tier Tribunal but granted on renewal by Upper Tribunal Judge Norton-Taylor on all but two grounds. He also set aside the anonymity direction made by the judge, noting that he saw no reason why one should be made. In their skeleton argument for this hearing, the appellants have asked for an anonymity direction to protect the children’s identities. However, no information of any particular sensitivity was revealed in the judge’s decision and certainly none will be in this decision. Their case falls far short of outweighing the public interest in open justice and so I refuse to reinstate the anonymity direction.

3. The grounds assert in short that the judge erred as follows. The judge applied the incorrect test under GEN.3.1(1)(b) (ground 1). The judge conflated the tests under GEN.3.1 and GEN.3.2 (ground 2). The judge made contradictory findings on third-party support (ground 3). The judge failed to treat the children’s best interests as a primary consideration (ground 4). The judge inappropriately relied on findings in a decision set aside by the Upper Tribunal (ground 5). The judge undertook an inadequate Article 8 assessment (ground 6). The decision endorsed permanent family separation (ground 7) The judge failed to consider whether her involvement in an earlier appeal by the appellants gave rise to apparent bias (ground 8). The First-tier Tribunal gave inadequate consideration to permission to appeal (ground 9).

4. Judge Norton-Taylor considered that grounds 1 and 2 were arguable and that ground 3 was consequently arguable. He refused permission in grounds 7 and 9. He noted that the remaining grounds had less merit. Nevertheless, he permitted them to be argued at this hearing.

5. In her rule 24 reply, the respondent argued that the grounds were muddled and disclosed no error of law. In particular, it was tolerably clear from the judge’s reasons that she had been satisfied not only that no unduly harsh consequences would flow from refusal but than none could flow, given the possibility of maintaining contact between the appellants and their sponsor. There was no true inconsistency in the judge’s consideration of financial support. The judge had adequately considered the family’s Article 8 rights.

6. The appellants indicated in their rule 25 response that they did not intend to attend or be represented but rather wanted the appeal decided on the basis of the documentation provided. They submitted that, not only had the judge erred in law, but also that the Upper Tribunal should allow the underlying appeal against the respondent’s refusal.

Grounds 4, 5, 6 and 8

7. I first deal briefly with those grounds for which Judge Norton-Taylor gave permission but considered to have less obvious merit.

8. Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply directly to the First-tier Tribunal, although the latter’s consideration of Article 8 necessarily involves treating the best interests of affected children as a primary consideration (CAO v SSHD [2024] UKSC). As acknowledged in the grounds, the judge considered the child appellants’ best interests at [81]-[86]. That consideration could not reasonably be considered ‘cursory’ (as asserted in paragraph 19 of the grounds of appeal). Mere omission of reference to applicable authorities is not an error of law. The judge found that the children’s best interests favoured the family being together [81]. In the paragraphs in question, the judge considered the family’s present living arrangements, the children’s circumstances in Pakistan, the lack of evidence that the children remaining in Pakistan would be prejudicial to their welfare, and the sponsor’s ability to travel to Pakistan. In short, the judge considered all relevant matters and reached a conclusion, that to the children’s best interests were served by their remaining in Pakistan [85], that was reasonably open to her. There is simply no basis to conclude that the judge failed to treat the children’s best interests as a primary consideration; on the contrary, she expressly stated at [44] that she was doing so. Ground 4 amounts to disagreement as to what those best interests require, and fails for the reasons given above.

9. Ground 5 is hopeless. As the respondent notes in her rule 24 response, it was the appellants who relied on the earlier First-tier Tribunal decision in the child appellants’ previous EEA appeal. It was produced in the appellants’ bundle and expressly referenced in the sponsor’s witness statement. The appellants can hardly complain that apparently relevant evidence at that earlier hearing was taken into account by the judge in this appeal, in particular where the First-tier Tribunal found in favour of the child appellants in that earlier case and was set aside without any criticism of its primary findings of fact. The authority cited by the appellants (Devani [2020] UKUT 118 (IAC)) does not exist.

10. For similar reasons, ground 8 fails. It is not suggested that the judge was actually biased against the appellants. Neither can it be said that the fair minded observer in possession of all of the relevant facts would think that there was real possibility that the judge might be biased (per Porter v Magill [2001] UKHL 67). She found for the child appellants in the earlier appeal. Whilst the authority cited in the grounds of appeal (Khan v SSHD [2017] EWCA Civ 1755) does in this instance exist, it does not appear to relate at all to this ground of challenge.

11. Ground 6 identifies a number of factors supposedly not taken into account by the judge in her Article 8 assessment and describes that assessment as ‘perfunctory’. The latter criticism is nonsensical; the decision from [72] onwards is a detailed assessment of the proportionality of refusal. The decision must in any event be read as a whole. The judge expressly considered the sponsor’s immigration history and status at the time of the hearing (pre-settled status), the evidence of inter-family dependence, the caring role played by the sponsor and the effect of refusal on those with whom the appellants enjoyed family life. The judge’s Article 8 assessment contains no error of law provided, of course, that her approach to GEN.3.1 is safe.

Grounds 1 and 2

12. Turning therefore to the grounds upon which permission was principally given, the argument in essence is that the judge inappropriately required the appellants to show that unduly harsh consequences would flow from refusal and/or that there were exceptional circumstances to the case before taking alternative sources of funding into account, and that the judge made contradictory findings in respect of the alternative sources of funding relied on in any event. It is clear, therefore, that the error alleged in ground 3 would only be material if grounds 1 and/or 2 are made out.

13. It is convenient therefore to deal first with grounds one and two

The Applicable Immigration Rules

14. Under the heading ‘Exceptional Circumstances’, paragraphs GEN.3.1, GEN.3.2 and GEN.3.3 of Appendix FM of the Immigration Rules in force at the date of the respondent’s decision provide as follows:

‘GEN.3.1.(1) Where:

(a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. applies, and is not met from the specified sources referred to in the relevant paragraph; and

(b) it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of entry clearance or leave to remain a breach of Article 8 of the European Convention on Human Rights, because such refusal could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking into account the sources of income, financial support or funds set out in paragraph 21A(2) of Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that paragraph).

(2) Where the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. is met following consideration under sub-paragraph (1) (and provided that the other relevant requirements of the Immigration Rules are also met), the applicant will be granted entry clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1. or D-LTRC.1.1. or paragraph 315 or 316B of the Immigration Rules.

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.

(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the applicant will be granted entry clearance or leave to enter or remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2. or D-LTRPT.1.2.

(4) This paragraph does not apply in the context of applications made under section
BPILR or DVILR..1.1

GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account, as a primary consideration, the best interests of any relevant child.

(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a person who:

(a) is under the age of 18 years at the date of the application; and

(b) it is evident from the information provided by the applicant would be affected by a decision to refuse the application.’

15. Paragraph 21A of Appendix FM-SE, insofar as it is relevant to applications relying on prospective earnings from employment provides as follows:

‘21A(1). Where paragraph GEN.3.1.(1) of Appendix FM applies, the decision-maker is required to take into account the sources of income, financial support or funds specified in sub-paragraph (2).

(2) Subject to sub-paragraphs (3) to (8), the following sources of income, financial support or funds will be taken into account (in addition to those set out in, as appropriate, paragraph E-ECP.3.2., E-LTRP.3.2., E-ECC.2.2. or E-LTRC.2.2. of Appendix FM):
…
(b) credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner;
…
(4) The onus is on the applicant to satisfy the decision-maker of the genuineness, credibility and reliability of the source of income, financial support or funds relied upon, on the basis of the information and evidence provided, having regard (in particular, but without limitation) to the factors set out below.
…
(8) In determining the genuineness, credibility and reliability of the source of income, financial
support or funds relied upon under sub-paragraph (2), the decision-maker will take into
account all the information and evidence provided, and will consider (in particular):
…
(b) in respect of prospective earnings from sustainable employment or self-employment of the applicant or their partner:

(i) whether, at the date of application, a specific offer of employment has been made, or a clear basis for self-employment exists. In either case, such employment or self-employment must be expected to commence within three months of the applicant’s arrival in the UK (if the applicant is applying for entry clearance) or within three months of the date of application (if the applicant is
applying for leave to remain);

(ii) whether the applicant has provided verifiable documentary evidence of the offer of employment or the basis for self-employment, and, if so, whether that evidence:

(aa) is on the headed notepaper of the company or other organisation offering the employment, or of a company or other organisation which has agreed to purchase the goods or services of the applicant or their partner as a self-employed person;

(bb) is signed, dated and witnessed or otherwise independently verified;

(cc) includes (in respect of an offer of employment) a signed or draft contract of employment;

(dd) includes (in respect of self-employment) any of a signed or draft contract for the provision of goods or services; a signed or draft partnership or franchise agreement; an application to the appropriate authority for a licence to trade; or details of the agreed or proposed purchase or rental of business premises;

(iii) whether, in respect of an offer of employment in the UK, the applicant has provided verifiable documentary evidence:

(aa) of a relevant employment advertisement and employment application;

(bb) of the hours to be worked and the rate of gross pay, which that evidence must establish equals or exceeds the National Living Wage or the National Minimum Wage (as applicable, given the age of the person to be employed) and equals or exceeds the going rate for such work in that part of the UK; and

(cc) which enables the decision-maker to assess the reliability of the offer of employment, including in light of the total size of the workforce and the turnover (annual gross income or sales) of the relevant company or other organisation;

(iv) whether the applicant has provided verifiable documentary evidence that at the date of application, the person to be employed or self-employed is in, or has recently been in, sustained employment or self-employment of the same or a similar type, of the same or a similar level of complexity and at the same or a similar level of responsibility;

(v) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has relevant professional, occupational or educational qualifications and that these are recognised in the UK;

(vi) whether the applicant has provided verifiable documentary evidence that the person to be employed or self-employed has the level of English language skills such prospective employment or self-employment is likely to require;

(vii) the extent to which this source of income is relied upon by the applicant to meet the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1., E-ECC.2.1. or E-LTRC.2.1. of Appendix FM (as applicable); and

(viii) where an offer of employment is relied upon, and where the proposed employer is a family member or friend of the applicant or their partner, the likelihood of a relevant change in that relationship during the period of limited leave applied for.’

16. The proper application of GEN.3.1 (and GEN.3.2) was recently considered by the Court of Appeal in SSHD v Khera [2025] EWCA Civ 1571 at [34] – [39]:

‘34. The financial eligibility provisions incorporated into the IR require applicants for entry clearance to show evidence of sufficient means and are justified upon the basis that applicants with sufficient economic resources are less likely to be a burden on the state and better able to integrate into society: see section 117B(3) Nationality, Immigration and Asylum Act 2002, and Rhuppiah paragraph [20]. As was made clear in MM (Lebanon) it was also legitimate for the state to prioritise simplicity of operation within the IR. Some applicants will satisfy all requirements for entry clearance save for the financial requirements but have available to them reliable alternative sources of income. A refusal of entry clearance without considering those alternatives risks breaching Article 8. To address this risk, as identified in MM (Lebanon), paragraphs GEN 3.1 and 3.2 were added to Appendix FM.

35. It is helpful to place the operation of these rules into the context of the scheme as a whole. Standing back the scheme works in the following way. First, an applicant who seeks clearance upon the basis of family rights must meet eligibility requirements laid down by the state over which the state has a broad margin of discretion. These requirements might include financial sustainability thresholds. Prima facie, an applicant is required to demonstrate financial resilience from that person’s own resources. However, as an exception the state might accept proof from third sources. The state is entitled to assume that where the resources come from a third source their intrinsic reliability might not be as strong as when they come from the applicant and that there is an administrative burden which lies in verifying what, by their nature, might be less clear and certain sources of income and resource. Nonetheless, if the state ignores third party resources there is risk that an applicant’s Article 8 rights will be breached. Some sort of a risk assessment therefore needs to be undertaken to decide whether a refusal to open the procedural door to consideration of third source financial information would lead to a violation of Article 8. This is the “could” in GEN 3.1(b) and relates to the risk of breach if clearance is not given which then justifies resort to this source information.

36. The Secretary of State points out, and accepts, I think correctly, that because “could” implies a lower threshold that “would” there is a possibility that an applicant will be granted clearance on a slightly lower threshold test. This is not problematic because “could” still performs an important and substantive human rights balancing role between the individual and the state and, furthermore, the policy objectives of the state are in fact met because, even if in theory the applicant has obtained clearance on a slightly attenuated basis, the applicant still meets the state’s eligibility requirements, albeit by a circuitous route. What happens if clearance is refused? If no recourse is made to third source information, or if on analysis the material is insufficient, this does not necessarily mean that clearance is refused. Paragraph GEN 3.2 is then engaged and the ECO must consider whether refusal “would” violate Article 8. At this juncture the “would” implies a higher threshold than “could” and, again, serves to strike the balance between the state and the individual.

37. It follows that GEN 3.1 and 3.2 should be read together and in their collective effect provide the means whereby a proper balance is struck between the important and legitimate right of the state to control entry and set appropriate eligibility requirements and any competing private, family interests of the applicant under Article 8.

38. It is possible to break down the questions that need to be answered under the combined effect of GEN 3.1 and 3.2:

Paragraph GEN 3.1

i) Assuming all other relevant eligibility requirements are met does an applicant for entry clearance on the basis of family life meet the financial eligibility requirements? If the answer is “yes”, clearance is granted.

ii) If the financial requirements are not met is it: (i) evident, (ii) from the information provided by the applicant that (iii) there are (extant) (iv) (exceptional) circumstances which (v) could render refusal of entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If the answer is “yes”, can relevant financial requirements be satisfied by assessing the extraneous sources of income (as set out in paragraph 21A(2) of Appendix FM-SE)?

iv) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance under paragraph GEN 3.1, but might be under paragraph GEN 3.2.

Paragraph GEN 3.2

i) Does an applicant for entry clearance on the basis of family life fail to satisfy relevant (financial or other) requirements under the Immigration Rules (including the provisions of GEN 3.1)?

ii) If “yes”, is it the case that: (i) on the basis of the information provided by the applicant (ii) there are (extant) (iii) (exceptional) circumstances which (iv) would render refusal or entry clearance or leave to remain a breach of the applicant or their family’s Article 8 rights?

iii) If “yes”, clearance must be granted. If “no”, the applicant will not be granted clearance.

39. In view of the above the following points can be made about the relevant language:

i) “are”: This word is found in both paragraphs GEN 3.1 and GEN 3.2. It indicates that the circumstances which give rise to the risk (“could” or “would”) of an Article 8 violation are extant ie current. It precludes the possibility that the circumstances are hypothetical ie a mere possibility

ii) “it is evident” and “consider on the basis of”: The expression “it is evident from the information provided by the applicant”, is found in paragraph GEN 3.1, but not in paragraph GEN 3.2, which uses the expression “consider on the basis of the information provided by the applicant”1. It is unclear whether these two formulations are intended to convey different meanings. In relation to GEN 3.1, there was some discussion during the appeal as to whether, for information to be “evident”, an applicant had to submit full information on alternative sources of finance in their application. A word of caution is required. What, for instance, is the position if the application is (say) 90% complete and hence contains limited gaps in the requisite information? Must an ECO refuse clearance even though the information could otherwise have been obtained and the gap plugged? Given that the overall aim of these rules is to ensure compliance with Article 8, such an end result might not be proportionate.2

iii) “exceptional”: As to the expression “exceptional” in relation to “circumstances” this is found in both GEN 3.1 and GEN 3.2 and relates to the existence of a risk of a breach of Article 8. However, in each it plays a different role. In GEN 3.1 it operates to open the door to recourse to the consideration of third source financial information. In GEN 3.2 it is more basic and opens the door to a positive Article 8 outcome for the applicant. On one view the phrase presupposes that there are some circumstances which would otherwise warrant recourse to third source material, or to a positive Article 8 outcome, but which options are precluded because the extant (triggering) circumstances do not meet the high threshold of being “exceptional”. In such a case a risk might arise that there were cases where there was a possibility of an Article 8 violation arising but which did not serve to entitle the ECO to consider third source material or grant clearance to obviate that risk. This does not seem consistent with the principle articulated in MM (Lebanon) which the new rules were seeking to protect, namely the striking of a fair Article 8 balance between state and individual. The expression “exceptional circumstances” has been in relatively long use in Government guidance. It was considered in MM (Lebanon) where, at paragraphs [22]-[24], the Court explained that the phrase was intended to equate to the circumstances where Article 8 would be breached. In other words it was not intended to define a sub-category of Article 8 case where clearance would be granted which was to be differentiated from other cases where Article 8 applied but where, notwithstanding, no clearance would be granted. In this sense the expression conveys the message that cases where the circumstances might reach the Article 8 threshold will, as a matter of law, be rare – “exceptional”; but nothing more than this. It neither adds nor detracts from the substantive content of Article 8. On the evidence in this case, nothing turns upon the meaning of “exceptional”. This is because not only were there no “exceptional circumstances” found to exist but, critically, there was nothing in the facts that could give rise to a breach of Article 8 irrespective of whether the extant circumstances of the Respondent or his family were exceptional.

iv) “could”: It is common ground that, linguistically, “could” implies a lower threshold than “would”. The word “could”, in relation to the risk of a breach of Article 8, serves to trigger or engage a procedural right, namely to have the ECO look to alternative sources of finance. It is expressed in the contingent form of “could” because at the point in time at which it is engaged the ECO does not know whether or not the alternative information will, as a matter of fact, suffice as a replacement for information relating to the applicant’s own sources of finance. It is only after the information has been reviewed that the “would” question is capable of being answered. I would accept the submissions of both the Secretary of State and the Respondent that “could” means “real risk” or “realistic possibility”. It is unnecessary to determine this appeal to go further and to consider how this test might play out on various fact permutations. No one however argues that “real possibility” means a “mere”, theoretical, possibility which was the position of the UT.

v) “unjustifiably harsh consequences”: The reference to the resulting “unjustifiably harsh consequences” is understood as a restatement of the circumstances in which Article 8 rights will have been breached.

1 Albeit that under paragraph GEN 3.2 the ECO does need to consider the rights of those in respect of whom the effect of the decision upon such rights is “evident”.
2 It appears that the ECO must have been provided evidence of Mr Khera’s income at the time of the application but the ECO Decision does not refer to the Respondent’s savings. The implication is that the evidence of those savings and of Mr Khera’s newer, higher, salary was provided only during the FtT proceedings: cf paragraph [27] of the FtT decision.’

Consideration

17. The judge set out the provisions of paragraph GEN.3.1 of Appendix FM and the associated provisions of Appendix FM-SE, paragraph 21A, at [14]-[15]. It is not suggested that the judge materially misquoted those provisions, but rather that she misunderstood and/or misapplied them. In particular, it is submitted that the judge has required the appellants to show that unjustifiably harsh consequences ‘would’ (in other words are more likely than not to) follow refusal.

18. Ground 2 criticises the judge for requiring the existence of ‘exceptional circumstances’. However, the judge is in that regard merely reflecting the working of GEN.3.1 itself. Her use of the phrase does not in itself disclose any error of law, and so ground 2 fails as a stand alone ground. The question is whether the judge’s approach to the question of unjustifiable hardship applied the correct threshold.

19. It must first be noted that the judge identified as an issue at [6] (my emphasis): ‘Whether Gen 3.1 applies as there are exceptional circumstances which could or would result in unjustifiably harsh consequences for the children or their family.’ That formulation is repeated in the judge’s self direction at [30]. The judge’s use of the disjunctive in her self-direction suggests that the judge understood the test to be satisfied if unjustifiably harsh consequences could follow refusal.

20. It is fair to recognise, as the respondent appears to in her rule 24 response, that the judge’s analysis is lengthy and inelegant. It does not obviously delineate between her analysis under GEN.3.1 and her analysis under GEN.3.2. However, the following primary findings of fact are clear, and do not appear to be challenged (save for those in italics which, I find, were unmeritoriously challenged):

a. The sponsor entered the United Kingdom as a visitor in May 2019, in part to visit the grave of her recently deceased father [21].
b. She gained pre-settled status under the EUSS on 25 November 2020 and was anxious to be reunited with her husband and sons [22].
c. The appellants’ applications to join the sponsor were unsuccessful, as were their appeals against refusal [23]-[24].
d. The sponsor cares for her mother in the United Kingdom and receives carer’s allowance [25]. However, there are other adult family members close by and on hand to provide that care in place of the sponsor [27]. There are ample family members on hand to help out with the sponsor’s mother to free her to return to Pakistan to be with her children [79].
e. The sponsor has visited her family in Pakistan and keeps in daily contact [25]. She has not reported unjustifiably harsh financial consequences from the cost of visiting Pakistan [40] and has not shown that she cannot continue visiting [50].
f. The first appellant is settled and has a home in Pakistan with the two child appellants [33]. He has day-to-day care of the children [35].
g. The sponsor’s brother has been sending the appellants money to support them [36].
h. In 2022, the first appellant was receiving £1,000-£1,500 per annum in rental income [37]. It is probable that he still has a source of rental income [46].
i. The appellants do not presently live in harsh circumstances [39].
j. The family has been separated by choice since the sponsor came to the United Kingdom [42].
k. The children are accommodated and have a means of transport [49].
l. They are privately educated and speak English [50].
m. It has not been shown that the current situation compromises the children’s care or wellbeing [54].
n. The sponsor can be with her children and husband in sufficient ways to avoid a breach of family life [89].

21. It seems clear that the findings above were made on the balance of probabilities. However, they relate to the family’s extant circumstances. In short, the judge found that this family had lived apart by choice for 5 years, that the circumstances were not presently unduly harsh and that the sponsor could reunite with her family in Pakistan if she so chose. In considering the consequences of refusal, she then made in particular one critical finding at [27].

a. The sponsor is the one that has been required to look after her mother in the UK but the wider family circumstances indicate that there are other adult family members close by and on hand in the UK. If there was a necessity of care that could point to unjustifiably harsh consequence and if proper care is prohibited by a refusal. However on the available evidence the appellant has not shown that this is the case.

22. Therefore, the judge expressly considered whether the sponsor reuniting with her family in Pakistan could result in unjustifiably harsh consequences, and decided not. That was a permissible conclusion, applying the correct test under GEN.3.1.

23. It might be argued (indeed, I suspect it would have been argued had the appellants chosen to be represented) that the judge failed to consider whether unjustifiably harsh consequences could follow from the family’s continued separation. However, given her finding that the sponsor could return reunite with her family in Pakistan without the risk of any unjustifiably harsh consequences, it was unnecessary for her to do so. In any event, even if the judge had been obliged to undertake such an assessment, the outcome was inevitable: the current arrangement had endured for 5 years without unjustifiably harsh consequences, and therefore there was no real risk of such consequences were the arrangement to continue.

24. Indeed, that would have been my conclusion had it been necessary for me to set aside the judge’s decision and remake it myself, as the appellants had invited me to do.

Ground 3

25. It follows that there was no error (or alternatively no material error) in the judge’s application of GEN.3.1 and so any error in the judge’s consideration of alternative sources of funding would be immaterial. Had it been necessary to decide the point, I would have agreed that her reasoning is confused, on occasion appearing to accept the reliability of financial support and on others doubting whether funds remain available.

26. I would, if necessary, have listed the matter for an oral hearing, having set aside the judge’s findings on alternative sources of income. However, for the reasons given above, the judge’s decision stands.

Notice of Decision

1. The appellants’ appeal to the Upper Tribunal is dismissed.
2. The decision of the First-tier Tribunal did not involve the making of an error on a point of law, and so stands undisturbed.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 May 2026