Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005503
First-tier Tribunal No: HU/53455/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2nd March 2026

Before

Deputy upper tribunal JUDGE Kelly

Between

AYAAN ADAN IBRAHIM
(ANONYMITY NOT ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Chaudhry, Counsel instructed by AIC Consultants
For the Respondent: Mr McVetie, Senior Home Office Presenting Officer.

Heard at Bradford on the 16th February 2026

DECISION AND REASONS
Introduction
1. The Appellant is a female citizen of Somalia. The Respondent refused her application for entry clearance to the United Kingdom on the 19th February 2025, and her appeal against that refusal was dismissed by First-tier Tribunal Judge Turner on the 16th September 2025. Judge Iqbal granted permission to appeal against Judge Turner’s decision on the 28th November 2025, and hence the matter came before me.
The appellant’s case
2. The essence of the appellant’s case before the First-tier Tribunal was as follows.
3. The appellant’s sponsor is her maternal aunt, Fowsia Cawed Digaale, who was residing at all material times in the UK. The sponsor’s sister (the appellant’s mother) passed away on the 28th November 2010. The appellant was thereafter cared for by her father until he passed away on the 20th June 2018. The appellant was aged nine at this time. Following the death of the appellant’s father, the sponsor arranged for the appellant’s day-to-day care to be provided by a neighbor in Somalia, ‘Xaawa’. The sponsor nevertheless retained sole responsibility for making important decisions concerning the appellant’s upbringing and financially supported her. Following a visit to Somalia in September 2024, the sponsor decided that the appellant should apply to join her in the UK. It is the appeal against refusal of that application that was dismissed by Judge Turner and is now the subject of the present appeal to the Upper Tribunal.
Findings of the First-tier Tribunal
4. Judge Turner’s factual findings can be conveniently summarised as follows.
5. The evidence proved, on a balance of probabilities, (a) the appellant’s identity, (b) her genetic relationship to her sponsor, and (c) that her parents had died on the dates claimed (above) [12, 13, 15]. The evidence did not however establish that (a) the sponsor was solely responsible for the appellant’s financial support or upbringing [16 – 26], (b) that Xaawa would be unable to continue to care for the appellant into her majority [27], or (c) the the appellant was especially vulnerable as a female child without male supervision [28].
6. Having made the above factual findings, Judge Turner concluded that (i) the appellant had not shown there were, “serious or compelling circumstances making the appellant’s exclusion [from the UK] undesirable”, for the purposes of paragraph 297(f) of the Immigration Rules [29], and (ii) the proven circumstances of the appellant’s claim did not suffice to engage the potential operation of Article 8 of the Human Rights Convention; alternatively, they did not demonstrate that the decision to refuse entry clearance was “unjustifiably harsh” in striking a fair balance under Article 8 between the appellant’s right to respect for private and family life on the one hand and the public interest in maintaining the economic wellbeing of the country through immigration controls on the other [40 – 42]
The grounds of appeal
7. The grounds of appeal may be conveniently summarised as follows –
(1) The judge made “a number of adverse credibility findings” concerning the evidence of the sponsor [4], without giving her an opportunity “to provide evidence or an explanation to such challenges at the hearing” [5]. This included failing to provide the sponsor with an opportunity to address the following matters –
1. The absence of evidence concerning the appellant’s “essential living needs”, and Xaawa’s ability to meet those needs without assistance from the sponsor.
2. The absence of translations into English of text messages that were said to have passed between the sponsor and the appellant.
3. The absence of any other documentary evidence to support the sponsor’s claimed daily communication with the appellant.
4. The apparent contradiction between (on the one hand) the sponsor’s claim that she had cared for the appellant since the death of her (the appellant’s) father in 2018 and (on the other) (a) a Somali court document, dated the 5th February 2024, that appointed the sponsor as the appellant’s guardian whilst stating that Xaara had previously discharged that role, and (b) a recent medical report suggesting that Xaawa has continued to care for the appellant since the date of that document.
(2) Given that the judge accepted that the appellant had no remaining relatives in Somalia and that Xaawa was unlikely to be in paid employment due her age and ill-heath, the judge made contradictory findings and/or gave inadequate reasons for concluding that there was “a lack of evidence that the appellant is not receiving financial support from somewhere else” [6, 7].
(3) The judge failed to distinguish between (on the one hand) providing day-to-day care and (on the other) having continued control and direction of the child’s upbringing (including making all the important decision in the child’s life) [9, 10].
(4) The judge failed to take account of the appellant’s age and sex in concluding that she had not proved that she was especially vulnerable in Somalia without male supervision.
(5) The judge failed to assess the best interests of the appellant, “as a 16-year-old orphan with no remaining family living with an elderly neighbour in Somalia” [13 – 16].
Analysis
8. Before turning to the individual grounds (above), it is first necessary to consider the appellant’s application under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the following evidence to be admitted that was not before the First-tier Tribunal -
(1) WhatsApp chat history including calls, messages for most of 2024 and 2025;
(2) An up-to-date medical letter for Ms Xaawa Warsame Axmed (the appellant’s carer in Somalia);
(3) Money transfer receipts (said to have been found by the sponsor since the appeal in the First-tier Tribunal);
(4) A letter from the Appellant’s school;
(5) Witness statements from the sponsor, the appellant, “and the neighbour she lives with”.
This evidence is said to support, “the sponsor’s claim that she has responsibility for the appellant, she is supporting the appellant financially and is in regular contact with the appellant”. The application is said to be necessary because the fresh evidence addresses matters that were “disputed in the FTT determination”.
9. The application to admit further evidence neatly illustrates the weakness of the first three of the four complaints made in the first ground of appeal, each of which is couched in terms of the judge having supposedly made an, “adverse credibility finding”, without first giving the sponsor an opportunity to address it in cross-examination. However, all the judge in fact did was to draw attention to gaps in the evidence that meant the appellant had not proved her case on a balance of probabilities. The application to adduce further evidence is thus nothing more than a belated attempt to fill those gaps, thereby contradicting the first three complaints of procedural unfairness at the original hearing. I accordingly refuse the application and reject the first three complaints of procedural unfairness.
10. The fourth complaint of procedural unfairness concerns the judge’s finding that the sponsor’s credibility was damaged by a Somali court document, dated February 2024, in which it is stated that Xaawa had been the appellant’s guardian and custodian prior to this role being “awarded to the Sponsor”. The judge found this to be inconsistent with the sponsor’s claim to have, “had the care of the Appellant since her father passed in 2018”, and thereby, “further undermines the credibility of the Appellant’s account” [22]. By contrast to the first three complaints, this was plainly an “adverse credibility finding” and, as a matter of fairness, required its underlying premise to be put to the sponsor in cross-examination. The parties have not provided an agreed note of the cross-examination of the sponsor in the First-tier Tribunal let alone a transcript of it. I am nevertheless prepared to assume that if the sponsor had been afforded the opportunity to provide an explanation for the perceived discrepancy between the appellant’s case and the Somali document that was said to support it, then the judge would have noted this in her decision and given any reasons she may have had for rejecting it. I therefore uphold the first ground of appeal to this limited extent.
11. Turning to the second ground, it is of note that the judge accepted that the appellant was an orphan [12-15], did not have any other surviving relatives in Somalia [16], and that it could be “implied” (inferred?) that Xaawa “… is not employed due to the evidence presented of her age and ill health” [17]. The grounds of appeal therefore plead that the judge gave “inadequate reasons” for finding that there was, “a lack of evidence to indicate that the appellant is not also receiving support”, from a source or sources other than the sponsor [24]. Ms Choudhary went further, arguing that given the near impossibility of proving a negative by direct evidence (a difficulty that the judge herself acknowledged at paragraph 16) it was perverse to conclude that the circumstantial evidence (as accepted by the judge) did not also establish that the sponsor was providing the sole means of financial support for what the judge characterised as the appellant’s “essential living needs”. Mr McVetie’s answer to this was that the judge was entitled to conclude that the appellant was receiving additional funds from a third party given that the appellant’s financial needs (including school fees) significantly exceeded those that could be met from the documented funds remitted by the sponsor. However, with respect, this argument suffers from the same defect as the majority of complaints of ‘procedural unfairness’ raised in the first ground (considered above) in that it insufficiently distinguishes between (a) a positive adverse credibility finding, which can only be made after the witness concerned has been given an opportunity to address it, and (b) merely drawing attention to gaps in the evidence in order to explain why the burden of proof has not been discharged. Had the judge made a positive finding that, contrary to the sponsor’s claim, the appellant was receiving funds from a third-party source (especially if that finding included identifying the source in question) then this would indeed have had to be put to the sponsor in cross-examination before any such adverse finding could fairly be made. As it was, the judge merely left open the possibility of the appellant receiving financial support from another source, despite having apparently discounted that possibility by finding that the appellant’s parents were deceased, that she had no other surviving relatives, and that Xaawa was not in employment due to her ill-health and advanced age. I therefore conclude that, to this extent, the judge’s reasoning was irrational.
12. Considered in isolation, this irrationality could be considered immaterial to the outcome of the appeal. This is because (a) the error infects only the finding that the appellant had failed to prove that she was financially dependent upon the sponsor in order to meet her “essential living needs”, (b) that finding was of limited relevance to the question of whether the appellant satisfied the requirements of paragraph 297 of the Immigration Rules (the judge appearing to confuse the requirements of that paragraph with one of the tests for establishing that the applicant is an ‘extended family member’ who is seeking to join an EEA citizen with a right of residence in the UK), and (c) it was in any event reasonably open to the judge to find that the sponsor could continue to provide any such financial support remotely from the UK. I shall nevertheless revisit the issue of materiality after considering all the grounds of appeal (see paragraphs 18 to 20, below).
13. The third ground complains that the judge failed to differentiate between, on the one hand, providing for the daily care of the appellant and, on the other, having responsibility for her upbringing. This ground is in my judgement misconceived in that it is based upon paragraph 297(i)(e) of the Immigration Rules, which requires the sponsor in the UK to have had “sole responsibility for the child’s upbringing”. However, this sub-paragraph is only relevant in circumstances where the UK-resident sponsor is one of the appellant’s parents, it being rebuttably presumed that the other parent will still be residing in the home country and be at least partially responsible for the child’s upbringing. As the respondent’s ‘reasons for refusal letter’ makes clear, it is therefore inapplicable to the circumstances of the present case where (a) the sponsor is appellant’s aunt, and (b) (as the judge found) both the appellant’s parents are deceased. The present appeal thus fell to be considered under paragraph 297(i)(f) (rather than 297(i)(e)) under which - and, to a large extent, also under Article 8 of the Convention - the central question was whether there are, “serious family or other considerations”, rendering the appellant’s exclusion from the United Kingdom “undesirable”. The question of whether the sponsor had had sole responsibility for the appellant’s upbringing was thus of dubious relevance to the issues in the appeal.
14. The fourth and fifth grounds can be taken together. They complain that the judge failed to make an adequate assessment of the appellant’s best interests within the context of (amongst other things) her claimed vulnerability as a female child living in Somalia without male supervision. The appellant’s claimed vulnerability in this regard was clearly relevant to the requirement under paragraph 276(i)(f) of the Immigration Rules (“serious and compelling family or other considerations, which make exclusion of the child undesirable”) and the judge was wrong to imply otherwise in observing that, “this is not a protection claim” [28]. The judge nevertheless dealt with the issue at paragraphs 27, 28, 38, and 39 -
27. I must then consider why the current care arrangements cannot continue. I have seen the medical evidence provided regarding the neighbour's health (letter dated 26 April 2025) however this is limited in content and simply states that the neighbour has chronic illness including diabetes and hypertension. It does not state why the neighbour cannot continue to care for the Appellant. The Appellant is now 16 years of age and will require little physical input in relation to her daily care. The Appellant will require support and guidance in an emotional sense. The evidence does not explain why this cannot be provided by the neighbour who has seemingly provided a stable home to the Appellant since 2018.
28. The Appellant argues that she is at risk due to her age, sex and lack of male supervision in Somalia. This is not a protection claim. I have not been provided with any objective evidence about this. I am referred to quotes about this in the skeleton argument, but I have not been provided with the primary source for this evidence to consider context or reliability. Neither the Appellant nor her neighbour have provided any evidence to support this assertion. I do not find that this aspect of the Appellant’s claim is made out.
….
38. As noted above, whilst the Appellant has raised safety concerns due to her having no male supervision, I have not found this aspect of the claim made out due to the lack of evidence from the Appellant and neighbour and also a lack of objective evidence.
39. Ms Chaudhry asks me to consider the best interests of the Appellant as a child, noting section 55 of the Borders, Citizenship and Immigration Act 2009. However, this requirement applies only to children who are in the UK. Even if this requirement did apply to the Appellant, I am not persuaded that it would be in the Appellant’s best interest to be uprooted to live in a new country where she does not speak the language, has limited understanding of life and culture and whilst interrupting her education.
15. In response to this ground, Mr McVetie drew attention to the decision of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 88 (IAC) that the appellant relies upon in support of this ground (paragraph 15 of the appellant’s skeleton argument). The headnote to this decision includes the following passage at paragraph (iv) –
Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
a. there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
Mr McVetie pointed out that there was no evidence of neglect, abuse, or of unmet needs in this case, and that the evidence moreover suggested that stable arrangements had been made for Xaawa to undertake the appellant’s day-to-day care. Ms Choudhry’s response to this was to suggest that the judge ought to have considered the appellant’s position should Xaawa die or otherwise become incapacitated from caring for the appellant before she reached her majority. I reject that argument. The Tribunal was obliged to determine the appellant’s situation at the date of hearing rather than to speculate upon what would be the position in the event of Xaara’s possible demise. On the other hand, I do not consider that Mr McVetie’s reliance upon the ‘other considerations’ as expounded in Mundeba provides a complete answer to the suggested vulnerability of the appellant given that the Tribunal was thereby simply providing examples of ‘other considerations’ rather than purporting to set out an exhaustive list.
16. The fact remains, however, that the Tribunal’s attention does not appear to have been drawn to any specific background country information that was capable of supporting the appellant’s claimed vulnerability as a young female living in Somalia without male supervision. In response to this, Ms Choudhry drew attention to the fact that the respondent had referred the judge to a Country Policy Information Note relating to Somalia in order to support their contention that documents issued by the Somali authorities were not reliable evidence of the truth of their contents (paragraph 14 of the decision). She thus argued that the judge ought also to have looked to see whether this publicly available information supported the appellant’s claim to be vulnerable due to her age, sex, and lack of male supervision. I reject that argument. The parties to an appeal in the First-tier Tribunal are required not only to identify the issues in the appeal, but also to draw the Tribunal’s attention to evidence that may assist in resolving those issues. It is not for the Tribunal to seek out further evidence to support the case of one party to the proceedings or the other. Indeed, depending on the circumstances, such a practice may of itself give rise to a complaint of procedural unfairness. It is also noteworthy that Ms Chaudhry did not draw my attention to any passages in the background country information that was before the First-tier Tribunal and which she argued could have supported the appellant’s case when considering the appellant’s claimed vulnerability and in the assessment of her best interests.
17. It is also right to observe that whilst the judge was strictly-speaking correct to say that the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 is framed in terms of children residing in the UK, it was nevertheless a misplaced observation given that its spirit has to be applied when determining out-of-country appeals (see Mundeba, above). The judge’s observation as to the applicability of this statutory provision was however immaterial to the outcome of the appeal given that she went on to consider the matter upon the hypothesis that section 55 did apply, and she thereafter reached a conclusion that was reasonably open to her (paragraph 39 of the Decision).
18. I turn now to consider whether the limited errors of law that I have upheld concerning the first and second grounds of appeal are so fundamental that they undermine the safety of the First-tier Tribunal’s decision to dismiss the appeal and thus necessitate its rehearing.
19. Whilst I have only upheld one of the multiple incidents of procedural unfairness that are pleaded in the first ground of appeal, I nevertheless recognise that the right to a fair hearing is absolute and that any infraction is accordingly bound to undermine the safety of the decision upon which it is based. The judge moreover made it plain that, absent documentary evidence, the outcome of the appeal would, “rest on the credibility of the Sponsor and her evidence”. It is further clear that what the judge perceived to be the contradictory evidence concerning the sponsor’s participation in the appellant’s upbringing was a significant factor in finding that the Sponsor was not, “a credible witness” [23].
20. As previously noted, the irrationality of the finding that the appellant had not proved that the sponsor’s financial support was necessary to meet her, “essential living needs”, may not of itself have sufficed to merit setting aside the First-tier Tribunal’s decision to dismiss the appeal. However, when taken together with the procedural unfairness that I have upheld in the first ground, I have no doubt that setting aside the decision is the only proper course to take. This will incidentally also allow the appellant to adduce evidence in the First-tier Tribunal that I refused to admit at the ‘error of law stage’ in the Upper Tribunal. I nevertheless stress that this has not played any part in my decision to remit this appeal for rehearing.
Notice of Decision
1. The appeal from the First-tier Tribunal is allowed and its decision to dismiss the appeal from the decision of the Entry Clearance Officer is set aside with none of the findings preserved.
2. The appellant’s appeal from the decision of the Entry Clearance Officer is remitted to be determined by a judge of the First-tier Tribunal other than Judge Turner.

David Kelly Date: 20th February 2026
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber