Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-005572, UI-2025-005575
UI-2025-005576, UI-2025-005577
UI-2025-005578, UI-2025-005579

First-tier Tribunal Nos:
HU/01162/2024, HU/01163/2024
HU/01164/2024, HU/01165/2024
HU/01166/2024, HU/01167/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of June 2026

Before

UPPER TRIBUNAL JUDGE LANDES

Between

ENTRY CLEARANCE OFFICER
Appellant
and

A, B, C, D, E, F
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Mr Z Malik KC, Counsel
For the Respondents: Mr D Bazini, Counsel

Heard at Field House on 1 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents and any member of their family are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondents, likely to lead members of the public to identify them or any member of their family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Anonymity

1. I continue the order made in the First-Tier Tribunal. A, B, C, D, E and F are female citizens of Afghanistan. They are either in hiding in Afghanistan or are living in Pakistan on expired visas and fear removal to Afghanistan. Revealing their identities may put them at risk. In addition, they were all under 18 at the date of their applications for entry clearance and three are still under 18 as at the date of this hearing. In the circumstances their interests outweigh the public interest in open justice.

Background

2. In the paragraphs which follow to avoid confusion, I refer to the respondents to this appeal as the appellants as they were before the First-Tier Tribunal, and to the Entry Clearance Officer as the respondent, as they were before the First-Tier Tribunal.

3. The respondent appeals, with the permission of the First-Tier Tribunal, the decision of a First-Tier Tribunal Judge (“the FTTJ”) promulgated on 29 April 2025 allowing the appellants’ appeals against the respondent’s decision of 8 May 2024 refusing their applications for leave to enter of 31 October 2022.

4. The appellants are siblings, the children of the sponsor. Before the Taliban came to power in Afghanistan, they lived together with the sponsor, their mothers, and other siblings in the family home in Afghanistan. The sponsor was a high-ranking officer (I say little about his role not to seek in any way to minimise it, but rather to seek to maintain the family’s anonymity) who worked with US and UK forces and was prioritised for evacuation when the Taliban came to power because of the risk to him. He was due to be evacuated by the Ministry of Defence with a large number of other family members including the appellants, but most members of the family, including the appellants were not able to reach Kabul airport in time before the security situation deteriorated and the Ministry of Defence was not able to wait for them. The sponsor was brought to the UK with one of his three wives and three sons. The sponsor was granted indefinite leave to remain (Afghan Locally Engaged Staff) on 9 March 2022.

5. The appellants applied for entry clearance with two older sisters for family reunion as the child of a person in the UK with refugee leave or humanitarian protection. The older sisters were refused in an earlier decision, and their appeals were allowed in an appeal heard on 29 September 2023. That decision was not further appealed, and the sisters have since entered the UK and live with the sponsor and the rest of his family.

6. The appellants C and E at the date of the hearing before the FTTJ were living with their mother in Pakistan, their visas having expired. The other appellants were in hiding in Afghanistan, living separately from their mother for their safety.

7. It was agreed before the FTTJ that the appellants could not meet the requirements of immigration rules, because, as had been set out in the refusal letter, the sponsor did not have refugee or humanitarian protection in the UK [42]. It was not disputed that family life existed between the appellants and the sponsor [20].

8. The FTTJ accepted the sponsor as credible, that he was a Taliban target and that the appellants and their mothers were at risk of serious harm from the Taliban because of their relationship with the sponsor [43]. He concluded that the appellants would also be at risk in Afghanistan because of the accumulation of discriminatory measures against women which amounted to persecution [48]. He found that the two appellants in Pakistan were at risk of refoulement to Afghanistan with their mother in the light of the evidence [44].

9. He found that family life existed between the sponsor, the appellants, their siblings in the UK and the sponsor’s three wives [45].

10. Referring to Al Hassan & Ors (Article 8; entry clearance; KF (Syria)) [2024] UKUT 00234 (IAC) the FTTJ said (at [46]):

“Having regard to Al Hassan, I find that it is incumbent upon me to consider the Article 8 rights of the family unit as a whole, and in doing so, I may take into account when considering Unjustifiably Harsh consequences, the risk of refoulement to Afghanistan for Appellants C and E and the Article 3 risks to all of the Appellants within Afghanistan (see headnote 2 and [32], [55] and [57]).”

11. He then adopted a balance sheet approach and when assessing the respective sides of the balance, found as follows [50]:

(a) “In assessing the public interest side of the balance, I find that:

i. The Appellants do not meet the immigration rules and therefore the public interest in maintaining effective immigration control weighs against them under 117B (1).

ii. There is no evidence before me that the Appellants speak English. I therefore find that 117B (2) weighs against the Appellants.

iii. The Respondent did not dispute that the Appellants and their mothers…...are dependent upon the Sponsor. However, it was not explained to me where this money comes from or whether it would sustain the Appellants upon entry to the UK in the light of Mr Bell’s submission that a grant of entry clearance would require “significant public funds”. In reply, Mr Osmane simply said that the Appellants would want to work. In this regard I bear in mind that Appellants C, D, E and F are minors. I therefore find that 117B (3) weighs against the Appellants.

(b) In assessing the Appellant’s side of the balance, I find that:

i. The Appellants enjoy family life with their mothers ……, in addition to family life with the Sponsor, their stepmother, three brothers and two sisters in the UK.

ii. The Appellants in Pakistan are at risk of refoulment to Afghanistan.

iii. The Appellants in Afghanistan are living in hiding.

iv. All Appellants are at risk of serious harm from the Taliban in Afghanistan on account of their familial relationship with the Sponsor, who …… worked with the US and UK forces fighting the Taliban.

v. Given the dangers of serious harm and death facing the Appellants, the family unit is at considerable risk of being permanently ruptured should immigration control be maintained.”

12. He allowed the appeal on Article 8 grounds, concluding that maintaining immigration control in this case would result in unjustifiably harsh consequences and so the decision was disproportionate.

Ground one
The ground and its development at the hearing

13. The first ground was that the FTTJ had erred by failing to have regard to the public interest in, and the legislative scheme aimed at, discouraging polygamous marriages and households.

14. The appellants are the children of the sponsor’s first two wives, and the sponsor’s third wife is living with him in the UK and she and the sponsor have further children born in the UK.

15. It was submitted that the immigration rules prohibited the entry of multiple spouses into the UK and that extended to the children of polygamous marriages. Paragraph 296 of the immigration rules was pointed to. There were cogent policy reasons underlying the approach as this would amount to the indirect recognition of a polygamous union which would be prohibited by UK law, contradicted the principle of monogamy and could be perceived to be harmful to women and children in the broader sense, creating a power imbalance, importing practices seen as undermining gender equality and giving rise to legal and administrative complications. Immigration policy continued to uphold a monogamous framework to maintain social cohesion and ensure clarity in legal rights and obligations. The Court of Human Rights in the case of Dabo v Sweden [2024] ECHR 30 had concluded that compliance with the values and principles recognised by member States could justify the possible taking of restrictive measures against applications for the reunification of polygamous households. The Upper Tribunal had recognised in SG (child of polygamous marriage) Nepal [2012] UKUT 00265 (IAC) that there was a legitimate aim in excluding from admission to the UK a woman who was a party to an actually polygamous marriage and that aim justified the indirect effect of that exclusion on the child of such a marriage.

16. It was said that the entry clearance officer only appreciated and identified the polygamous nature of the relationship in the course of these appeal proceedings, but the entry clearance officer was not obliged to keep repeating the error – Gurung v Secretary of State for the Home Department (ARCS meaning – policy interpretation principles) [2025] UKUT 90. It was regrettable that the authorities were not brought to the attention of the FTTJ but as a specialist tribunal, the FTTJ should be taken to be aware of the authorities. The FTTJ was clearly aware that the appellants were the children of polygamous marriages and the FTTJ’s failure to have regard to the relevant considerations amounted to an error of law.

17. In developing the submissions at the hearing, Mr Malik emphasised that nothing he said sought to underplay the contribution the sponsor had made, his dedication or the difficulties the appellants faced. He emphasised that on a human level, many people would think the appellants had a strong case to come to the UK. Nevertheless, he repeated that the language used in paragraph 296 of the immigration rules – “nothing in these Rules shall be construed as permitting a child to be granted entry clearance, leave to enter or remain, or variation of leave where his parent is party to a polygamous marriage or civil partnership and any application by that parent for admission or leave to remain for settlement or with a view to settlement would be refused pursuant to paragraphs 278 or 278A” was, he said absolutely clear, and it was not just about the immigration rules but concerned Article 8 ECHR.

18. He said there were three points, that judges were obliged to comply with the law and the FTTJ ought to have been aware of the law, that the point had not been raised earlier because of an error and once the entry clearance officer became aware they sought to correct the error, and thirdly that it may have been that the relationships were in the documentation, but it did not stand out from the appellant’s skeleton argument.

19. I had asked Mr Malik to consider AL v Secretary of State for the Home Department [2026] EWCA Civ 370 as the public interest argument in excluding the children of polygamous marriages was not one which was raised before the FTTJ. He said that this was not a case where the respondent sought to raise a new factual matter. It was a matter of principle. The matter had not been identified by the appellant as a matter in issue in the skeleton argument and the entry clearance officer had not conducted a review. AL was not authority for the proposition that where a point about public interest was not expressly identified by the respondent, the FTTJ was not obliged to deal with it. He submitted that if the respondent made no submissions about the public interest in maintaining immigration control, a judge was still bound to consider it in the balancing exercise. Or for example if a judge saw an appellant had tuberculosis; once it was apparent that it was a factor a judge had to weigh it in the balancing exercise.

20. In their skeleton argument the appellants relied on the case of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). They said that the respondent’s submissions before the FTT were limited to the fact the applications were not valid under the family reunion rules, the existence of the ARAP route, the cost to public funds, and the weight to be given to the risk of refoulement and harm in Afghanistan. The public interest in discouraging polygamy was not a live issue before the FTTJ and he could not be criticised for not deciding an issue which the respondent had not raised, indeed Lata said that unless a point was Robinson obvious, a judge’s decision could not be alleged to contain an error of law on the basis that they had failed to take account of a point that was never raised before them for consideration. It was to be noted that the appellants were seeking entry clearance as children of the sponsor, not as spouses seeking recognition of or admission through a polygamous marriage. The Upper Tribunal case of SG concerned the indirect impact on a child arising from the exclusion of the child’s mother, but this case was about the direct impact on children. Whilst the FTTJ was of course to be taken to be aware of relevant authorities, that did not mean the tribunal had an obligation to construct, of its own motion, a new public interest case which the represented respondent chose not to advance. In any event, it was submitted that the point could not be a material one.

21. Mr Bazini added that following AL ground one was simply hopeless. The claimed public interest had simply not been raised, and it was difficult to consider that any injustice let alone serious injustice had been caused to the respondent thereby. It was not a Robinson obvious point. The case of Dabo explained that compliance with the values and principles of the Member States justified the possible taking of restrictive measures against applications for the reunification of polygamous households, but this was not such an application. The UK would not be in breach of any of its obligations by allowing these children into the UK.

22. Moreover, he submitted, there was no witness statement from the respondent setting out that an error had been made. The entry clearance officer would clearly have known that there were polygamous marriages. The evidence was there. The DNA tests showed that the appellants had the same father, but different mothers. The sponsor’s witness statement says, at [17] “I would like to make clear that although I have married three times, I do not have 3 separate households.” The next paragraphs, [18] – [22] set out the chronology of the marriages with the three wives and which of the appellants and the other children was born when and to whom.

23. Further it was all very well to submit that there was a public interest in not admitting the children of polygamous marriages, but even if paragraph 296 of the immigration rules meant what the respondent had submitted, there was no other policy relied upon. This was not an application under part 8 of the immigration rules, the respondent had not pointed to a policy which operated outside the rules, and it was incumbent on the respondent to identify the policy relied upon.

24. Mr Bazini submitted the FTTJ could not have looked at issues which were not put forward at all, this was not a Robinson obvious issue, indeed it was not even at all obvious that there was a public interest in excluding the children of polygamous marriages who were not proposing to come to the UK with their mothers.

25. Mr Malik accepted in reply that the point was not a Robinson obvious issue.

Ground one – discussion and conclusions

26. It was clear from the evidence submitted for the appeal that the appellants were children of polygamous marriages and lived in a polygamous household. The appellant’s skeleton argument at [14] and [15] referred to the sponsor having more than one wife. The sponsor’s witness statement made the polygamous nature of his relationships abundantly clear. If the entry clearance officer had not read the sponsor’s witness statement themselves, the Home Office presenting officer at the hearing, who was acting for the entry clearance officer, would certainly have read it before the hearing. The entry clearance officer had the opportunity to review the evidence and chose not to take it. Whilst the sponsor’s witness statement was made as part of the appeal, the applications of each appellant gave their mother’s name, and it could readily be seen that they did not all have the same mother. The appellants’ DNA evidence, to prove paternity, set out the names of their mothers, indeed there were photographs of each child and their mother and father. Perusing the passports of each appellant would have shown that the youngest two have dates of birth only a month apart, which one might have thought would have alerted a person who had not noticed the different photographs or names of their mothers. Moreover, the decision of the First-Tier Tribunal Judge who allowed the appeal of the appellants’ older sisters was produced as part of the entry clearance officer’s bundle for this appeal. That decision made clear that the sponsor had three wives and the sponsor was in the UK with his third wife, who it is clear from the context was not the mother of the two sisters; indeed she is referred to as their stepmother (see [35] –[36], [46] of the decision of October 2023).

27. Whilst the respondent therefore may not have appreciated that there was a potential argument which could be made about the appellants being children of a polygamous marriage, that they were as a matter of fact, children of a polygamous marriage, was crystal clear on the evidence submitted as part of their applications, on the evidence available to the respondent, and on the evidence put forward by the respondent themselves before the FTTJ.

28. I am not satisfied that the material presented shows that there is a public interest in not admitting children of polygamous marriages (as opposed to polygamous households). The Upper Tribunal in SG did not consider that paragraph 296 of the immigration rules set out such a clear public interest. They held that there was a legitimate aim in excluding from admission to the UK a woman who is a party to an actually polygamous marriage and that aim justified the indirect effect of that exclusion on the child of such a marriage, in that it would be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable. On the facts of SG, SG’s mother was in a polygamous marriage, and her father was living in the UK with another wife. The mother had not applied to come to the UK, but when SG applied, SG was met with a refusal on the basis that she could not meet the requirements of immigration rules as she could not show that her father had sole responsibility for her upbringing as both parents were involved in her upbringing. The Upper Tribunal considered that was the primary reason she had failed to secure admission, not because she was the product of a polygamous marriage. They were pointed to the terms of paragraph 296 of the immigration rules, but they considered the meaning was not entirely clear – they were not clear whether it was designed to prevent the child entering in accordance with any of the rules relating to children, or only those rules that gave the child a contingent right if being joined by both parents [31]. Having considered two policies to which they were directed referring to the position of children of polygamous marriages, [32] - [34], which they considered did not suggest that the respondent regarded paragraph 296 to be an absolute bar on such a child’s admission, they opined that apart from the approach adopted in policy statements, they doubted that the rule could be used to refuse admission to a child whose father had sole responsibility or whose exclusion was considered undesirable, and that use of the rule to deny admission to a child whose welfare and best interests would mean that they would be otherwise admitted, would be directly contrary to the principle about the welfare of the child being the primary consideration and would be direct discrimination on the grounds of social status contrary to Article 8 taken together with Article 14 [36].

29. Evidence has not been produced of any policies postdating SG which suggest that being a child of a polygamous marriage is an absolute bar to entry.

30. The decision of the Court of Human Rights in Dabo v Sweden, concerned attempted reunification of a polygamous household, not just children, but also a first wife when a second wife was already living in Sweden, so it is not on the same point.

31. Bearing in mind therefore that case law does not show the exclusion of children of a polygamous marriage to be a clear and obvious point which is well-known to be in the public interest, the point was one for the respondent to raise before the FTTJ. It is entirely different from a judge not taking into account the public interest in the maintenance of effective immigration controls (which they are required by statute to consider).

32. The Court of Appeal in AL endorsed the approach taken in Lata that a judge’s decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point which was never raised for their consideration as an issue in the appeal. The claimed public interest in the exclusion of children of polygamous marriages not being raised by the respondent before the FTTJ, and not being Robinson obvious, following AL the FTTJ cannot be said to be in error for failing to consider a point which the respondent never advanced.

33. Ground one fails therefore.

Ground two
Ground two and its development at the hearing

34. The second ground avers that the FTTJ erred in law in holding that the interference with the Article 8 rights of the appellants was disproportionate on account of the risk of serious harm they faced in Afghanistan.

35. It was submitted, relying on Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393, that the private life limb of Article 8 ECHR was not engaged at all and the family life limb could only be engaged by reference to the rights of the sponsor in the UK. That was said to be reinforced by the analysis in IA and others v Secretary of State for the Home Department [2025] EWCA Civ 1516 at [141] – [143] that the main focus of the proportionality exercise is the family life of the person within the jurisdiction albeit it is a unitary family life with the family outside the UK. The exercise only encompassed the family outside the UK because interference with the family life of the sponsor was interference with a family life shared with the appellants.

36. It was submitted that in this case, the FTTJ’s “main focus” was on the risk to the appellants in Afghanistan. Paragraphs [155] – [161] of IA were relied upon, where the Court of Appeal found that the Upper Tribunal had focused so closely on the effects of the war and that was the wrong approach. It was said that the FTTJ had made the same error as the UT made in that case. Paragraphs [166] – [167] of IA were relied upon. The FTTJ had not attached due weight to the respondent’s immigration policies which could only be overridden in very exceptional or compelling circumstances.

37. Developing the grounds in submissions, Mr Malik submitted that by relying on Al Hassan, the FTTJ had wrongly taken into account the Article 3 risks to the appellants within Afghanistan and created a route which was not intended – [46] was wrong in law. Weighing in the balance that the appellants were at risk of serious harm from the Taliban was not a relevant consideration. The appeal had been allowed focussing on the circumstances of the appellants abroad, the FTTJ had indicated that the family unit was at considerable risk of being permanently ruptured, but that was only one point that the FTTJ had made. The FTTJ had not focussed on the rights of the sponsor within the jurisdiction. The Secretary of State’s submissions referred at [155] of IA had found favour with the Court of Appeal. Whilst not underplaying the sponsor’s role and his contribution and dedication, the fundamental distinction between Article 3 and Article 8 was that the UK was not responsible for the risks faced by the appellants in Pakistan and Afghanistan. As the Upper Tribunal had been in IA (see [161]) the FTTJ had been wrong to accord the weight he did to risks the family faced. The FTTJ had not accorded the proper weight to policy. There was an Afghan resettlement policy, but it did not allow each and every family member to join the family member in the UK and considerable weight should have been attached to that fact.

38. In the appellants’ skeleton argument prepared for this appeal, the appellants submitted that the FTTJ had not created a free-standing Article 3 route to entry clearance. He had allowed the appeals on Article 8 grounds, following a structured assessment. The respondent’s representative at the hearing had acknowledged that the tribunal could take into account the risk of refoulement and Article 3 adjacent matters when considering unjustifiably harsh consequences. In any event, risk was simply one strand within the Article 8 assessment and once family life was found, the risk of death, injury or detention to the appellants was clearly relevant to the sponsor’s ability to enjoy family life in the future. The Court of Appeal had indicated in IA that they would have attached weight to the interests of the family in Gaza and some weight to the difficulties faced by the brother, so it was not a case where no weight was given to the situation of the family outside the UK.

39. The risk found by the FTTJ was not a generalised finding about the hardship of living in Afghanistan but was that the family life between the sponsor and the appellants was being interfered with in circumstances created by the sponsor’s accepted profile as a Taliban target. The FTTJ had given express consideration to the respondent’s immigration policies and section 117B factors and had considered the cumulative impact of refusal on a family unit which had been accepted to enjoy family life, where the sponsor had been evacuated and the family had not voluntarily separated. The FTTJ had taken risk into account for the limited and lawful purpose of assessing the gravity of the interference with Article 8 family life and whether refusal produced unjustifiably harsh consequences. The conclusion he came to had been properly open to him.

40. Mr Bazini submitted that one had to consider the policy within immigration rules. The policy for family life within immigration rules was set out in GEN 3.2 which referred to a refusal resulting in unjustifiably harsh consequences for the applicant, their partner, or a relevant child. That was not something the Court of Appeal had considered in IA.

41. He submitted that when considering IA, the Court of Appeal had in IA, when considering authorities relevant to the weighing of the proportionality balance referenced El Ghatet v Switzerland 56971/10 at [106] which referred to whether the government could be said to have struck a fair balance between the alien’s interest in developing family life in the State and the State’s interest in controlling immigration, considering questions such as whether the parents had decided to leave their children in the country of origin and whether allowing the children to enter the contracting state would be the most adequate means for them to develop family life, having regard to the existence of “insurmountable obstacles” or “major impediments” to return to the country of origin. Those types of points were all points recognised by the FTTJ.

42. The discussion of according weight to the article 8 rights of the family in IA at [140] – [144] was in the context of [100] which was explicitly referenced at [143]. [100] referred to the concept of unitary family life not placing the state under a positive obligation to admit every member of the wider family, but this was a case about core family members. The sponsor had lived with the appellants all their lives and had been driven away by circumstances. This was not a case where family life could properly be continued online as had been suggested in IA at [160]. The FTTJ had approached the appeal perfectly properly. Ultimately, the FTTJ found 50 (b) (v) to be key. The family unit was at risk of being destroyed forever. It was all fact sensitive. The family had only been torn apart because of the Taliban. It was to be noted that in IA, as set out at [173], the family life with the sponsor had only been recently revived, was short-lived and would have been developed in the knowledge that entry clearance might not be obtained. This case was wholly different. The FTTJ was perfectly entitled to reach the view he did, even accepting that he could have gone into more factual detail. The FTTJ had committed no error of law. It was hard, he submitted, to think of many cases as strong as this one. The FTTJ had simply weighed the various factors and reached lawful conclusions.

43. Mr Malik submitted in reply that the question was whether the FTTJ had applied the correct test or weighed in the balance something he should not have weighed. When he said that Article 3 risks were to be taken into account he was relying on Al-Hassan which had been disapproved in IA.

Ground two discussions; conclusion

44. Case-law is clear as is set out in Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 that a person outside the territory of an ECHR state may rely upon the family life aspect of Article 8 to secure entry into a contracting state and that is because, as explained in Khan v United Kingdom (2014) 58 EHRR SE15 (see [96] and [97] IA) the family member/s in the Contracting State are prevented from enjoying their family life with the relative because the relative has been denied entry to the Contracting State. That is a limited Article 8 obligation on the UK. That there is a limited Article 8 obligation to admit those outside the territory does not transfer across to saying that there must also be limited Article 3 obligations to those outside the territory. It was unsuccessfully argued by the appellant in Khan (who had only limited, private life connections with the UK) that the UK had an obligation to take Article 3 into account when making an adverse decision against an individual not within its jurisdiction. It was in that context, and not in the context of the appellant in Khan also relying on family life within the jurisdiction, that the ECHR said as quoted at [97] of IA, “the transposition of that limited Article 8 obligation to Article 3 would, in effect, create an unlimited obligation on Contracting States to allow entry to an individual who might be at real risk of ill-treatment contrary to Article 3, regardless of where in the world that individual might find himself”. That means that an individual who happens to have some connection with the UK cannot rely on ill-treatment breaching Article 3 ECHR in his home country to grant him entry to the UK. It does not mean that in the context of a unitary family life a tribunal cannot take into account at all that those who enjoy family life with their family in the UK are at risk in their home country.

45. The Court of Appeal in IA said it had not been helpful for the Upper Tribunal to rely on Upper Tribunal authorities including Al-Hassan. Nevertheless, they did not decide that it was only the interests of the family members within the jurisdiction which could be considered (see the discussion under ground two of IA). When describing how they would strike the proportionality balance they did not say that no weight should be given to any risks faced by the family outside the jurisdiction. They explained that they would have attached weight to the interests of the family in wanting to leave Gaza and to abate the risks that they faced there and they would have attached some weight to the difficulties faced by the brother in Gaza including his anti-Hamas profile and the risks to his safety and the humanitarian position there. The point was that the main focus of the proportionality exercise is the family life of the person within the jurisdiction, but that of course is a unitary family life with those outside the jurisdiction.

46. The Court of Appeal in IA found that the weight which the Upper Tribunal had given in that case to the sponsor’s family life with the family and the development of that family life in the future was wrong. They would only have attached some, but not great weight to past and future family life because it was recently established, had not involved cohabitation and had been revived and developed in the knowledge that it was contingent on the unlikely event of obtaining entry clearance outside the rules [172]. The children’s best interests were wrongly treated as paramount, despite what the Upper Tribunal had said, because focussing so closely on the war distorted the balance that had to be undertaken under Article 8 (2) [158].

47. It is important to remember the fact sensitivity of weight. The facts of this appeal are very different to the facts of IA. The appellants in IA had their own family life in Gaza; the children were living with their parents despite the terrible conditions and the family life with the sponsor in the UK was only recently established. By contrast this appeal concerns core family life between a father and his children, a family who all lived together before the Taliban takeover and their enforced separation. The appellants in Afghanistan are now living without a parent as they are hiding separately from their mother. The sponsor was found to be “a witness of truth” so that the FTTJ accepted his account that other family members including the appellants were intended to travel with him on the MOD evacuation, but he was forced to leave without them because of the suicide bombing at the airport [5].

48. When considering the weight to be given to family life Mr Bazini points me to El Ghatet as discussed in IA at [105] and following. The paragraph quoted in IA is particularly important:

“45. In this context it must be borne in mind that cases like the present one do not only concern immigration, but also family life, and that it involves aliens who already had a family life which they left behind in another country until they achieved settled status in the host country (contrast Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 68, Series A no. 94). In such cases, it must determine whether, in refusing to issue residence permits for the applicants, the Government can be said to have struck a fair balance between their interest in developing a family life in the respondent State on the one hand and the State’s own interest in controlling immigration on the other. In conducting this assessment, the Court has first asked whether the parents irrevocably decided to leave their children in the country of origin, and thereby abandoned any idea of a future family reunion (see, for example, Şen, cited above, § 40). Secondly, it has asked whether allowing the children to enter the Contracting State would be the most adequate means for them to develop their family life with the parents settled in that State. In answering this question, it has had regard to the existence of any “insurmountable obstacles” or “major impediments” to the parents’ return to the country of origin (see Tuquabo-Tekle and Others, cited above, § 48).”

49. The question is whether a fair balance is struck between the appellants’ interest in developing family life and the state’s interest in controlling immigration. In striking that balance regard is paid as set out in that paragraph to whether the parents irrevocably decided to leave their children in the country of origin and whether there are insurmountable obstacles to family life continuing in the home state. The next paragraph of El Ghatet explains that:

“in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle and Others, cited above, § 44). While the best interests of the child cannot be a “trump card” which requires the admission of all children who would be better off living in a Contracting State (I.A.A. and Others v. the United Kingdom, cited above, § 46; see also Berisha, cited above, §§ 60-61), the domestic courts must place the best interests of the child at the heart of their considerations and attach crucial weight to it (see, mutatis mutandis, Mandet v. France, no. 30955/12, §§ 56-57, 14 January 2016)”.

50. The FTTJ’s decision must be read considering El Ghatet. On the FTTJ’s findings the appellants and the sponsor were forced to separate, and family life can only be continued between the appellants and their father in the UK. Not only can family life only be continued in the UK, the FTTJ’s conclusion was that the family unit was at considerable risk of being permanently ruptured given the dangers of serious harm and death facing the appellants [50] (b) (v)].

51. The FTTJ did not specifically refer to the best interests of the child appellants, but it was clearly relevant to consider their living situation (see [50 b (ii)] and [(iii)]); in addition that the appellants in Afghanistan were living in hiding (without a parent) was relevant not just to their living situation but also to their ability to maintain family life with the sponsor.

52. The FTTJ did refer to Al-Hassan but that he referred to Article 3 risks was simply a way of referring to the magnitude of the risks; he did not thereby suggest that it would be a breach of Article 3 ECHR not to permit the appellants to enter the UK, and there is nothing in the legal framework to suggest he did other than take Article 8 ECHR into account. He directed himself to the cases relating to Article 8 ECHR, such as Razgar [2004] UKHL 27 and Agyarko [2017] UKSC 11.

53. When taking the balance, the FTTJ weighed the public interest appropriately against the appellants. The FTTJ recognised that the sponsor could not rely on the Family Reunion rules because he was not a refugee [22]. He expressly considered the inability to meet immigration rules and to section 117B factors. Against that strong public interest, he was entitled to give great weight to past and future family life because it was core family life which the sponsor had enjoyed with the appellants for all the appellants’ lives. He did consider the risks to the appellants in Afghanistan but was entitled to do so and to give weight to those risks because the risks meant not just that family life could not be continued in Afghanistan but that as he put it, the family unit was at considerable risk of being permanently ruptured so that core family life was brought to an end. As Mr Bazini says, he was entitled to consider the gravity of the interference with family life. Overall it was open to the FTTJ to find that refusal would result in unjustifiably harsh consequences so that the decision was disproportionate. The FTTJ made no error of law in so concluding.

54. Ground two also fails therefore.

Notice of Decision

There is no error of law in the decision of the First-Tier Tribunal which stands. The Entry Clearance Officer’s appeal is dismissed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 June 2026