Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005911
UI-2025-005912

First-tier Tribunal No: PA/58883/2033
PA/58882/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of May 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

GK AND AR
(ANONYMITY ORDER continued)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R. Ahmed, Counsel instructed on behalf of the Appellant
For the Respondent: Mr N. Wain, Senior Presenting Officer

Heard on 15 April 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

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

DECISION AND REASONS

1. The appellants appeals, with permission, against the determination of the First-tier Tribunal (Judge Emmerson) promulgated on 5 November 2025. By its decision, the Tribunal dismissed their appeals on all grounds against the Secretary of State’s decision dated 11 October 2023 to refuse their protection and human rights claim.
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
Background:
3. The factual background can be briefly summarised from the decision of the FtTJ and the papers as follows. The appellants are citizen of India. AR is the son of GR born in 2019.
4. The main appellant applied for multi -Tier 4 student Visa to enter the United Kingdom on 5 January 2017. The Visa was issued and was valid from 13 January 2017 to 31 May 2020. The appellant left India on 16 January 2017 by air and arrived in the UK on 17 January 2017.
5. Her leave was curtailed on 22 March 2018 and was set to expire on 27 January 2019. She applied for family/private life leave to remain on 4 April 2019. The application was refused on 11 September 2019.
6. The main appellant appealed that decision and it came before the FtT (Judge Mensah) who dismissed her human rights claim in a decision taken on 6 February 2021.
7. Following the decision of Judge Mensah, the appellant’s became appeal rights exhausted by 5 May 2021.
8. On 29 May 2021, the appellant applied for asylum. This was refused in decision taken on 11 October 2023.
9. The basis of her claim for asylum was that she had formed personal relationships whilst in the United Kingdom and that in December 2019 she gave birth to a child in the UK, whose father FG is a practising Muslim seeking asylum. She stated she was of the Sikh faith and her family in India were not aware of her child’s existence or previous relationship. They were no longer in a relationship but he maintained contact with the child.
10. The main appellant claimed to have a well-founded fear of persecution if returned to India because she came from a traditional Sikh family where having a child out of marriage was considered a severe dishonour. She claimed to be at risk of honour-based violence. It was further claimed that it would not be safe or feasible for her to return to India or register her child there.
11. The respondent refused her claim in a decision taken on 11 October 2023. In that decision the respondent accepted her identity and her nationality. It was further accepted that she had a child outside of marriage. As to the previous application made on human rights grounds (for April 2019) it was noted that the application was made on the basis that a man MM was her partner and that she had entered into a relationship with him in September 2018. She later claimed that the relationship had ended in April 2020 when attempting to appeal. The respondent concluded that the evidence in the previous application did not align with the statements given during the present asylum interview where it was said she had a relationship with FG and she became pregnant by him.
12. The respondent did not accept that she was a real risk on return because she had not provided any information or evidence to suggest that the people she feared from ( family) had any connection or influence over the Indian state authorities.
13. The respondent did not accept that she was a real risk on return because she had not provided any information or evidence to suggest that the people she feared from ( family) had any connection or influence over the Indian State authorities or had any power or influence to harm her with impunity. The family were considered non-state agents and ordinary citizens of India. As such there was no evidence to demonstrate that the actors had any significant power or influence over the local or national State authorities and thus she was not at risk of persecution or that the people she feared were above the law and were able to preclude her from State protection. The decision letter set out sufficiency of protection by reference to the country materials in the respondent’s CPIN: India: Actors of Protection Version 2.0 published June 2023 and CPIN: India: Women fearing Gender-based Violence, Version 3.0 published November 2022. The decision letter also considered the issue of internal relocation, in the context of the country materials in the relevant CPIN. In this respect it was noted that the appellant was able to return with her child and that the expectation of a single woman to internally relocate in India generally was not unreasonable. There was support available via government programs to provide aid and support single women in India as well as several NGOs. Reference is made to a previous background having been born, raised and educated in India for the majority of her life. She claimed to speak both Hindi and English (the official languages of India) and was educated up to a high school level and was able to utilise the skills to assist finding employment on return. Reference was made also to the assistance provided by the Home Office if she chose to return.
14. As regards family life, the decision letter set out that the appellant had claimed that her current partner FG began living her with a five months before she gave birth to her son but that was not compatible with what she had said previously where she had stated in the family life/private life application and provided documents that demonstrated to be in a relationship and was living with a man MM in a relationship up until April 2020 when the relationship ended. From the statement made at the interview to be true she would have to been living with FG from July 2019. The appellant had not been living with her partner in a relationship akin to marriage and the partner was not a British citizen. The appellant was in the UK without leave it having been curtailed on 18 November 2018.
15. The decision letter set out that the best interests of the child as a primary consideration had been taken account of and whether it was reasonable to expect the child to live in another country, the level of integration and how long the child had been away from the country and with whom and where the children would live if they leave the UK and any such arrangements. The respondent concluded that AR had not lived in the UK continuously for the last seven years before the date of the application. AR was born in the UK and had never been abroad but was only four years of age and had not yet begun attending education therefore did not have a social life that would be adversely affected to leaving the UK. If returned to India they would be returned as a family unit and appropriate support would be available both through local government and NGO assistance as well as the Home Office voluntary fund. The respondent also considered the claim that AR had not been registered as an Indian citizen after his birth. However external evidence demonstrated that the Indian government had the discretion to register a child as an Indian citizen after the expiry of one year registration period and that it will be possible to have a child officially registered as a citizen with the Indian government.
16. The respondent addressed the claim that AR’s father was FG, a Pakistani national. However, it was not currently known whether he was AR’s father as the appellant had not provided documentation demonstrating this but had accepted that he had a relationship with AR ( NB this was later clarified by the FtTJ and was made clear this was not the position taken by the respondent in the review). The Convention did not oblige the UK to accept that couples have the choice as to which country they would prefer to reside in, and although relocating together may cause a degree of hardship, there was no evidence that there were insurmountable obstacles.
17. As to private life, it was noted that the appellant was a national of India who entered the UK on 17 January 2017 and claimed asylum on 29 May 2021. She could not meet the rules under paragraph 267 A.D.E based on her length of residence there were no very significant obstacles to her integration into India as she had resided there at the age of 21, including her childhood and formative years. She had retained knowledge of the life, language and culture and will be able to integrate to India. She spoke Hindi and English which are widely spoken in India which would enable her to adapt to life in India socially and culturally. It was noted that she was educated and had experience working in the UK there is no reason why she could not use those skills or find employment upon return. It was considered that there were no exceptional compassionate circumstances raised in her case.
18. The appellant appealed the decision. The respondent provided a Respondent’s Review which considered the circumstances of both GK and the individual circumstances of AR. Paragraphs 30-31 assessed the circumstances of AR, his best interests and whether he could reasonably be expected to leave the UK. Submissions were made relating to article 8 of the ECHR.
The decision of the FtTJ:
19. The appellant and it came before the FtT at a hearing. The FtTJ recorded in his decision the issues that were in dispute at paragraphs 12-13, and he recorded that those issues in dispute were agreed between the advocates, alongside the paternity of AR.
20. It is relevant at this point to set out the preliminary issues that had arisen before the FtTJ.
21. It was recorded between paragraphs 15 – 17, that a previous case management order made on 13 August 2025, had outlined the issue of paternity and that a DNA report may be required. No DNA report had been commissioned following that case management order in August 2025 and at the hearing in October 2025, the FtTJ recorded that an opportunity was provided to counsel for an adjournment to obtain DNA evidence as the paternity of AR remained in issue given the conflicting evidence identified by the respondent. The outstanding application of GF was also referred to. It is recorded at paragraph 17 that after consulting with the main applicant, a decision was made to proceed on the basis of not wanting any further delay.
22. The FtTJ heard evidence from the appellant and from GF and further recorded at paragraph 29 that he had given full and careful consideration to the contents of the bundles and closing submissions and that he had assessed “all the evidence in the round” when making his findings of fact and reaching his conclusions. As a general conclusion relating to the evidence of the witnesses, he recorded that he found the oral evidence of GK not to be straightforward nor reliable and found it to be inconsistent with and not supported by the documentary evidence (paragraph 33) and also found the oral evidence of FG to be neither straightforward nor reliable or supported by documentary evidence.
23. The FtTJ’s findings of fact can be summarised as follows.
24. The FtTJ accepted that GK was a national of India, and that she had given birth to a child outside of marriage.
25. The FtTJ addressed the issue of whether GK was of adverse interest to her family having noted that the respondent’s review accepted she had a child out of wedlock and is in fear of her family but did not accept that it was a well-founded fear of persecution. The judge recorded that in the decision of Judge Mensah, she found that the main appellant had failed to prove that she faced a real risk of any harm at the hands of the family members (paragraph 19). Whilst the FtTJ found that she had a fear of her family, it was not well-founded. He made a factual finding that GK had voluntary direct and indirect contact with the family and even though she may be in fear of them there was a lack of evidence that such fear would result in a real risk of serious harm ( see paragraph 64).
26. As to the issue of paternity of AR, the FtTJ accepted his date of birth as 2019 but between paragraphs 35-49 gave his reasons based on the oral evidence of both parties taken alongside the documentary evidence and the conflicting evidence given before FtTJ Mensah relating to the paternity of AR . The FtTJ did not accept that FG was the father of AR because of the inconsistencies in the dates regarding GK being in a relationship with a previous man as claimed and FG, and there was no DNA evidence.
27. As regards AR’s relationship with FG the FtTJ’s findings of fact were set out between paragraphs 50-57. He found as a fact that they were not in a relationship and lived in different geographical locations. Whilst GK had stated that he maintained regular contact and FG gave evidence that he remained a committed and involved father, the FtTJ’s assessment of the evidence was that there was no other documentary evidence (save for a tenancy deposit at a property and a letter from the Home Office addressed a GK in a dependence and various photographs) to show that they were living together with AR from 2019 – 2024. The FtTJ found that whilst he had given oral testimony about direct access to AR, there was a lack of evidence that he was involved in the upbringing of AR or that he had an existing genuine subsisting relationship with AR (see paragraphs 56-57). He had recorded his evidence at paragraph 53, that he did not know the name of the school that AR attended, nor his doctor but knew that he was in year one at a new school.
28. As to fear of her family, this was further addressed between paragraphs 58 – 64. The FtTJ set out her oral evidence that she had last spoken to her family in 2020 and they were not aware that AR existed but that she voluntarily spoke direct to relatives who contacted her. The FtTJ set out the previous decision of Judge Mensah, where GK had said that she had not been to the Indian embassy to register and get a passport for son because she feared the embassy would contact her family in order to confirm her identity and it would reveal the existence of the child. The FtTJ noted the evidence of GK that the Indian High Commission required detailed family information and this would reveal her situation to the family and that she had hesitated to contact the Indian High Commission to provide them with full information (see paragraphs 60 – 61) but at paragraph 62 noted that her claim was also that she had made repeated attempts to obtain an Indian passport for her son through the Indian authorities. He concluded that she had previously claimed that engaging with the Indian authorities regarding obtaining a passport for AR would mean that the existence of AR would be indirectly revealed her family but she had now voluntarily decided to engage. He therefore found that given she had had direct and indirect voluntary contact with family whilst she came to be in fear of them there was a lack of evidence that such fear would result in a real risk of serious harm.
29. The FtTJ addressed the issue of statelessness of AR on the basis that she was experiencing difficulties with the authorities in obtaining a passport for AR. GK’s account was that AR was stateless. However, he recorded at paragraph 67, that Counsel acknowledged that the Indian authorities had not denied that AR was Indian nor that he was not entitled to an Indian passport. Alongside this the FtTJ attached weight to the matters set out in the respondent’s review between paragraphs 32–35, which set out the position of the Indian government allowing registration of birth of Indian citizens abroad, and the eligibility of Indian nationality (see paragraph 33) and a single woman could also do so without naming the father. Thus, he rejected as a material fact the claim that AR was stateless finding, “AR is not stateless because there is a lack of evidence that he is.”
30. At paragraph 75 the FtTJ set out the evidence of FG that he would be separated from AR because he could not visit due to the hostile relationship between the countries and his ability to obtain a Visa, but rejected that in light of his findings that GF had not shown he was the father of AR (paragraph 49), that he had not demonstrated an existing genuine and subsisting relationship with AR (paragraph 57), that GK was in direct and indirect voluntary contact with her family and there was a lack of evidence that she would be at risk of serious harm (at paragraph 64) and that it had not been demonstrated that her son was stateless (see paragraph 69). The FtTJ recorded that in his submissions Counsel had accepted that the solicitors had not provided any expert report or evidence of problems between India and Pakistan and provided submission setting out potential problems that the appellants may face on return but that “whilst these were interesting submissions, they were not based on any evidence before me” (see paragraph 78). He therefore found that the appellant had not provided sufficient evidence that the family or the wider religious community would expose either of them to a real risk of serious harm on return to India. He therefore rejected the claim that they would be at risk of harm on return to India and as such would not require protection (paragraphs 80 – 84). In in the alternative, he found that they would be able to internally relocate (see paragraphs 85 –88).
31. The FtTJ addressed Article 3 of the ECHR between paragraphs 91 – 94, but for the reasons given rejected any claim based on ill-health or that the appellant would be at risk of Article 3 mistreatment.
32. Between paragraphs 95-98 the FtTJ set out findings made on Article 8 and between paragraphs 103-112, he addressed Article 8 of the ECHR in relation to both of the appellants, both under the Immigration rules and also outside of the Rules. He undertook an assessment of the best interests of AR as a primary consideration but found that his best interests were to remain with his mother as a family unit. The FtTJ also addressed the public interest considerations and having carried out a proportionality assessment balancing those factors weighing for and against the appellants, concluded that the decision to refuse the appellant’s application for permission to stay in the UK “strikes a fair balance between the public interest in effective immigration control on the one hand and the rights and interests of each of the appellants, on the other”. . He therefore concluded that the decision is not unlawful under Section 6 of the Human Rights Act 1998 ( see paragraph 112).
33. He therefore dismissed the appeal.
34. Grounds of appeal were issued on behalf of the appellants. There were 5 grounds.
Ground 1: Error of fact and assessment of evidence (Paternity and Family Life)
The Judge made a material error in assessing the evidence regarding the paternity of AR and the relationship between GK and Mr Gaffar. The Judge attached “significant weight” to the absence of DNA evidence even though GK had been given very limited time and opportunity to obtain such evidence. The Judge accepted that GK was consistent in naming Mr Gaffar as the father in recent years and that he gave oral evidence and maintains contact with AR. The dismissal of this as “not genuine or subsisting” was unreasonable and inconsistent with the evidence. This error materially affected findings about Article 8 family life and the best interests of the child.
Ground 2:Failure to properly apply the best interests of the child (s.55 duty).
The Judge erred in law by not giving adequate weight to the best interests of AR as a primary consideration. AR has lived all his life in the UK, is settled in education, and his removal would cause serious disruption and emotional harm. The Judge failed to consider the practical and emotional consequences of relocation for a six-year-old who has never been to India, nor speak any Indian language. The finding that “the best interests of AR is to return to India” is inadequately reasoned and contrary to the principles in ZH (Tanzania) [2011] UKSC 4.
Ground3: Insufficient consideration of real risk and gender-based harm
The Judge failed to properly engage with the objective country evidence (CPIN on India – Women Fearing Gender-Based Violence, August 2025). GK’s situation as an unmarried mother who had a child outside marriage was accepted as fact. The Judge did not adequately assess whether this factor alone would expose her and her child to discrimination, social ostracism, or violence, contrary to Articles 3 and 8 ECHR.
Ground 4:Failure to consider cumulative impact of circumstances
The Judge considered each issue in isolation (paternity, family fear, statelessness, child’s welfare) but did not consider the combined effect of these factors, which could amount to
exceptional or compassionate circumstances under Article 8 ECHR and GEN 3.2–3.3 of the Immigration Rules.
Ground 5: Article 8 proportionality – irrational conclusion
The Judge accepted that GK and AR have established private and family life in the UK over many years but found removal proportionate without adequate balancing of the length of residence, the child’s best interests, and the absence of any misconduct. This conclusion is arguably irrational or inadequately reasoned.
35. FtTJ Hollings- Tennant in a decision of 31 December 2025 granted permission to appeal on limited grounds and only on Grounds 2, 4 and 5. He refused to grant permission on grounds 1 and ground 3.
The appeal before the Upper Tribunal:
36. The appeal came before the Upper Tribunal to determine whether the decision contains an error of law. There was a bundle of documents submitted on behalf of the appellants containing the core documents in the appeal, including the appellants and the respondent’s bundle before the First-tier Tribunal. Additionally, there was a Rule 24 response filed on behalf of the respondent and a Rule 25 response filed on behalf of the appellants. There was a separate bundle at part B of the consolidated bundle entitled “application under Rule 15 (2A) with DNA report”.
37. The hearing was attended by Mr Ahmed, Counsel who appeared on behalf of both appellants and Mr Wain, Senior Presenting Officer who appeared on behalf of the respondent. Both advocates made submissions and the conclusions below reflect those arguments and submissions where necessary.
Preliminary issue:
38. The first issue was to determine the application made under Rule 15(2A) Procedure (Upper Tribunal) Rules 2008. In that application it was stated that the appellants applied for permission to rely upon the DNA evidence confirming that FG was the biological father of AR. It is stated that the evidence was not before the FTT and was obtained following promulgation of the FTT hearing. It is asserted that the evidence is material to the existence of family life, the best interests of the child, the proportionality assessment and any remaking of the decision if the appeal is set aside. Reference is made to the standard directions and that there is a presumption that remaking may take place at the hearing therefore it was in the interests of justice that the evidence be admitted at this stage.
39. Mr Ahmed submitted that this was material evidence that the FtT did not have and he made findings that was contrary to that evidence. However, the DNA evidence shows he is the biological father and that he acts as a father and has a role in his life.
40. He further submitted that GF was a Pakistani man and the appellant is an Indian Sikh and that as it stands today AR could not be removed India because there are no documents to say that he is an Indian citizen.
41. Mr Ahmed further submitted that DNA evidence was crucial at this stage i.e. at the error of law stage because the decision involved a child. If it is adduced now it supports the submission that the main appellant GK had a child outside wedlock with a Muslim man from Pakistan and it has a bearing of whether the child can be removed. It shows that the child should have contact with both parents. He submitted credibility was an issue and the DNA evidence shows that FG is the biological father. The birth certificate did not have his name on it. If the evidence is adduced then it has a bearing on whether he will exercise direct contact. The appellant AR cannot be removed because he has no status documents (i.e. stateless) and the DNA evidence as he is a Pakistani child.
42. He therefore submitted that the additional evidence should be admitted at this stage because as an impact on the findings made as the appellant be removed as a lone woman.
43. Mr Wain opposed the application submitting that applying the principles of Ladd v Marshall, there were no good reasons given why the evidence had not been obtained prior to the hearing or why there was such a delay in providing it. This is evidence that could have been provided before the FtTJ but it was not. He referred to the previous appeal before judge Mensah where issues of paternity were set out, and also the case management review before FtTJ Turner and no good reason being given for the substantial delay. He submitted that if an error of law were found the new evidence would be admissible in that context however it could not be evidence relevant at the error of law stage given the way that it had now been obtained and in the circumstances.
44. He further submitted that the DNA evidence was not compliant with the respondent’s policy guidance as it was not from an accredited company as it does not comply with the collection standards. In any event, the DNA evidence did not have a bearing on the FtTJ’s findings that there was no genuine and subsisting parental relationship. Permission to appeal those findings had not been given. DNA evidence did not impact on the section 55 duty.
45. After having had the advantage of hearing from each of the advocates, I gave a preliminary ruling that the evidence sought to be admitted under Rule 15 (2A) should not be admitted as evidence relevant to the issue of whether the FtTJ erred in law on the basis of the grounds upon which permission had been granted. I did not admit the documents which did not meet the test in Ladd v Marshall [1954] 1WLR. The issue of paternity was plainly raised at a very early stage in the proceedings and as set out in the decision letter where the inconsistent evidence about paternity was clearly raised and as reliant on a previous decision made by FtTJ Mensah in 2021. During case management of this appeal the issue was identified again and thus the opportunity to provide that evidence was available even at that late stage. Furthermore, at the hearing itself the judge recorded that a further opportunity was provided to the applicant for an adjournment to provide DNA evidence, which was rejected. Thus, the main appellant had the opportunity to provide DNA evidence at a number of stages within the appeal proceedings but chose not to do so. There has been no explanation for the delay in providing the DNA evidence at all the stages prior to the Rule 15 (2) A application. The application simply states the evidence was not before the FTT and was obtained following promulgation. This is plainly evidence that was available and could have been obtained to put before the FTT. Mr Wain has also highlighted the point that the DNA evidence has not been produced from an accredited supplier and thus is not acceptable as it stands to the Secretary of State.
46. I further find that it has not been demonstrated that it is relevant to the proceedings at this stage when considering whether the FtTJ erred in law on the material that was before him. Firstly, none of the grounds for which permission has been granted raise any issue of a mistake of fact. Whilst Mr Ahmed submits that it now shows FG has a genuine and subsisting relationship with AR, no permission was granted on the grounds where it was argued that the judge erred in this respect. Furthermore, a biological relationship does not necessarily determine whether the same person has a genuine and subsisting parental relationship with the child. I am therefore not satisfied that there are reasons to admit the evidence at this stage and the wider interests of justice do not require me to do so.
47. When considering the nature of the written application made it does appear that the DNA evidence was being obtained in the event of an error of law being found and thus relevant to remaking rather than the basis submitted by Mr Ahmed who submitted that it was relevant to the error of law issue. I would agree that the evidence would be relevant on a remaking but as Mr Wain submits, before reaching that point in the proceedings, it needs to be established that the FtTJ erred in law.
48. A further preliminary point to note is that permission to appeal was granted on limited grounds and that permission was granted on grounds 2, 4 and 5 only. No application was made to the Upper Tribunal for permission to appeal on the grounds for which permission had not been granted pursuant to the Procedure Rules and no other application had been made in that respect. Therefore the grounds of challenge are those set out in Grounds 2,4 and 5.
The submissions:
49. Dealing with the grounds of challenge, Mr Ahmed submitted that the grounds challenge the best interests of the child and that the FtTJ gave inadequate reasons for finding it was in the best interests of the child to return to India. He submitted that the appellant is unmarried and the child was born in the UK and therefore had spent his whole life here and he would be going to India for the first time. As a child born out of wedlock there was no consideration of whether it was in his best interests to leave the United Kingdom. It is not permissible to blame the child. He further submitted that the child was young and was at primary school and speaks English. There was a difficulty because GK she has not even told her parents. It is therefore not reasonable for GK and AR to leave the UK and the FtTJ did not give adequate was sufficient consideration to the best interests of the child as it will be proposed to uproot child age 6 to return to India. Whilst it was a detailed decision nothing was said about the best interests of the child and the judge needed to say more about the best interests.
50. There was no reference to ZH (Tanzania) [2011] UKSC 4 and the decision did not consider his educational integration.
51. As regards grounds 4 and 5, he relied on the failure to consider the cumulative impact of the factors in the proportionality assessment. The FtTJ failed to consider whether combined effect of his residence in the UK, her status as a single mother and the father -child relationship could cumulatively amount to unjustifiably harsh consequences.
52. The written grounds also refer to AR completing seven years continuous residence in the UK later this year and therefore section 117B(6) applies and that the FtTJ did not address this statutory framework ( Rule 25 response paragraphs 22 – 25).
53. Mr Wain relied upon the Rule 24 response dated 19 January 2026. It sets out the following submissions.
54. Ground two complained that the best interests of the child were not properly applied. The ground implied that it would be to the child’s advantage to remain in the UK because of an assumption that he might have access to more opportunities here. The judge considered the best interests of the appellant’s child at [109] - [112] of his determination. He provided sufficient reasons for his conclusions.
55. In relation to ground 4, the judge did not find the appellants’ circumstances meant their removal would breach either the Refugee Convention or the appellants’ protected human rights would be breached the effect of the combination of these factors would not amount to exceptional circumstances under Article 8 ECHR, or the relevant immigration rules. Ground 5 is a disagreement with the judge’s reasoned conclusions on Article 8 and did not demonstrate an error of law.
56. In his oral submissions, Mr Wain and that whilst the FtTJ did not explicitly refer to ZH (Tanzania) the FtTJ referred to the section 55 duty and the need to take account of the best interests of AR as a primary consideration which is consistent with the decision the decision of Zoumbas [2023]UKSC 74 (see paragraph 10). The best interests are not a “trump card” and the circumstances need to be weighed against the public interest. He submitted that the FtTJ had undertaken that assessment by looking at education in school, accommodation and remaining with his mother and thus all facts relevant to the case had been taken into account. The grounds are no more than a disagreement with the assessment made and they do not point to any argument that was not considered and which had been raised before the judge.
57. As to the other two grounds, the FtTJ did not fail to consider the cumulative factors. The FtTJ had set out clear findings of fact that whilst she claimed to be in fear of her family, that was not the assessment made by the FtTJ, nor did the judge find that AR would be stateless. Those factors were considered individually but they were incorporated into the balancing act and weighed against the circumstances for both appellants (see paragraph 111) and after having considered the evidence in detail.
58. He submitted that the FtTJ properly consider whether there were justifiably harsh consequences and there was no requirement to repeat the earlier findings which he had incorporated into the public interest consideration and the proportionality balance. The FtTJ was entitled to give great weight to the fact that the immigration rules were not met, he factored into the length of residence (paragraph 96), he gave little weight to the private life established in the UK by both appellants due to the precariousness of their circumstances (see paragraph 108) and correctly took into account the best interests of the child when assessing proportionality. Paragraph 111 made it clear that the FtTJ had considered the evidence of the appellants in detail. Under paragraph 112 he had regard to all the above factors and outlined the decision he made struck a fair balance between the public interest in effective immigration control on the one hand and the rights of interest in each of the appellants. It was therefore plain where the proportionality balance lay and he had addressed all factors.
59. Mr Ahmed in reply submitted that the grounds were made out and the FtTJ had made an error of law that was material for the reasons set out in the grounds. The FtTJ’s analysis of the best interests of the child was not adequately addressed in the decision.
60. At the conclusion of the hearing, I reserved my decision to reflect upon the submissions made by each of the parties. I now give my decision.
Discussion:
61. I am grateful for the helpful submissions given by both of the advocates during the appeal and have considered them in the context of the factual appeal and the assessment of the evidence by the FtTJ.
62. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles of judicial restraint set out in a long line of cases including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4].The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract. Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account. When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out.
Conclusions on Ground 2:
63. Ground 2 asserts that there was an the inadequacy of the reasoning of the FtTJ as regards the best interests of the child. It is further submitted that the findings made on best interests were not only inadequately reasoned but that the FtTJ failed to take into account ZH (Tanzania)v SSHD [2011] UKSC 4.
64. Along with the principles set out above it is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view. These are not controversial observations: see Customs and Excise Commissioners v A [2002] EWCA Civ 1039; [2003] 2 WLR 210; Bekoe v Broomes [2005] UKPC 39; Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318; [2006] UKCLR 1135".
65. Whilst the grounds assert that the FtTJ failed to take account of the length of residence of AR, the FtTJ expressly referred to his length of residence at paragraph 96 recognising that AR had resided in the UK for over six years being his entire life and at paragraph 97, began his assessment on the basis that AR was a dependent child of GK and had family life with his mother in the UK. In so far as the Rule 25 response seeks to argue that the FtTJ erred in law by failing to have regard to section 117B (6) when assessing AR’s circumstances, that submission has no merit. The FtTJ properly assessed the circumstances of AR as at the date of the hearing. He was not a qualifying child under section 117B(6) as he was not a British citizen, a factor identified by the FtTJ at paragraph 110, nor had he lived in the UK for seven years or more.
66. The FtTJ addressed the best interests of AR between paragraphs 109 and paragraph 110. I am satisfied that there is no error of law in that assessment based on submission made that the FtTJ the FtTJ failed to refer to ZH (Tanzania) (as cited). As an expert tribunal the FTT can be taken to be aware of the relevant authorities within the jurisdiction and apply them without the need to refer to them specifically. What is important is whether the FtTJ apply the correct principles in substance. Having read his decision in the context of the evidence I am satisfied that he did so. The FtTJ directed himself that when undertaking the Article 8 assessment outside the Rules and thus the issue of proportionality he should take into account section 55 of the Borders, Citizenship and Immigration Act 2009. This is a reference to the section 55 duty on the Home Office and others making immigration decisions to safeguard and promote the welfare of children in the UK as they carry out their functions. Furthermore, he expressly set out that he had undertaken the assessment by taking into account, “as a primary consideration, the best interests of the child.” His assessment at paragraph 109 as the best interests of AR were consistent with the approach set out in Zoumbas v SSHD [2013] UKSC 74 ( at paragraph 10) whereby he considered AR’s best interests as part of the proportionality assessment under article 8 and properly noted that the best interests of the child must be a primary consideration and that they themselves do not have the status of paramount consideration.
67. Furthermore, when undertaking his assessment, the FtTJ was required to come to his own assessment of where the best interests of the child lay taking into account the evidence and by having regard to the circumstances of that particular child. In undertaking his assessment and on the facts of this appeal, the FtTJ had made a detailed analysis of the evidence which related to AR’s mother, her likely circumstances and AR’s circumstances. In respect of AR’s mother, the FtTJ made detailed findings that she was not in fear on return to India from the family (see paragraph 58 – 64), and that AR, whilst he was not a British citizen, was not stateless. When assessing the circumstances of GK as a single woman, the previous findings made by FtTJ Mensah were relevant where that FtTJ found that GK was capable of relocating alone to a new country, forming new relationships and seeking and successfully undertaking paid employment (see paragraph 98 of the decision). Alongside this at paragraph 99 the FtTJ stated that he attached weight to the matters set out in the decision letter which expressly related to the circumstances of GK and AR and that AR could return with GK and that the expectations of a single woman to relocate in India was not unreasonable. Reference is made to GK speaking both English and Hindi (the official languages of India) and her level of education. At paragraph 99, the FtTJ adopted those points and as set out in the review as part of his consideration and when taking into account whether it was reasonable to expect AR to live in another country, taking into account the level of integration and matters of education. The FtTJ took into account that whilst AR was born in the United Kingdom, he had never left the United Kingdom but was not a British citizen.
68. Against those findings of fact and that evidential background the FtTJ assessed the best interests of AR. The FtTJ again took into account his age and where he was in terms of education noting that he was very young and had just started year one at a new school. Whilst the written grounds refer to AR as being settled in his education and that his removal would cause practical and emotional consequences, the FtTJ correctly identified the level of education of AR as being in year one. There was limited evidence relating to AR before the tribunal relating to his circumstances including his education. There was a school report from July 2025 ( his reception year )which was consistent with the FtTJ’s finding that he had just started school in year one. Apart from a school photograph, there was no other supporting evidence from the school. The FtTJ plainly began his assessment on the basis that AR had spent his entire life, although very short life, in the UK. In assessing his best interests, the FtTJ took into account his relationship with his parents. There is no dispute that his mother was his primary carer. As his father, the FtTJ set out a number of factual findings concerning this having identified that AR’s father was not clear, but on his analysis of the evidence irrespective of any biological relationship AR had with FG , the FtTJ found that there was no genuine and subsisting parental relationship between them ( see paragraph 39 – 49, 50 – 57). In his assessment of AR’s best interests, the FtTJ took into account the circumstances of AR which was that GF lived in a separate city and there was no genuine and subsisting parental relationship. He took into account that neither his mother or claimed father was a British citizen; nor did AR have British citizenship. Those factual findings were relevant to the assessment of the best interests of AR as such an assessment must be made on the basis of the facts as they are in the “real world” (see EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874) and thus whether is it reasonable to expect the child to follow the parent with no right to remain. The FtTJ undertook that assessment at paragraph 109 and where he referred to attaching weight to paragraphs 30 – 31 of the respondent’s review decision, this related to the reasonableness of leaving the UK and that based on his private life he was reliant upon his mother given his young age and the point reached in his education was that he started school at year one. This also took into account the lack of very significant obstacles to integration relating to GK. Against that background the FtTJ assessed the best interests of AR were to remain with his mother and that he could return to India with her where she would be his primary carer, and that he could continue in education in his mother’s home country.
69. Having taken into account the substance of that assessment, the FtTJ gave adequate and sustainable evidence-based reasons for reaching his assessment of the best interests of AR. Consequently, it has not been demonstrated that there was any error of law in that assessment undertaken by him.
Conclusions on Grounds 4 and 5:
70. Grounds 4 and 5 can be taken together which is the way that Mr Ahmed had provided his submissions. Dealing with ground 4, it is submitted that the FtTJ considered the issues in isolation of paternity , fear, statelessness and the child’s best interests and did not consider the combination of those factors which amounted to exceptional circumstances. In the rule 25 response, additional factors were identified as the father and child relationship and social stigma. However, the FtTJ did not find there was a relationship that was a genuine and subsisting parental relationship. Nor was it found there would be any social stigma or fear on return. Ground 5 submits that the FtTJ reached an irrational conclusion on Article 8 and proportionality as there was no adequate balance of the factors, the length of residence the child’s best interests and the assessment made of those considerations and therefore the assessment was inadequate and irrational.
71. It is therefore necessary to set out the article 8 assessment made by the FtTJ.
The Article 8 assessment:
72. Between paragraphs 95-98 the FtTJ set out findings made on article 8 and between paragraphs 103-112, he addressed article 8 of the ECHR in relation to both of the appellants, both under the Immigration rules and also outside of the Rules.
73. In respect of GK, he found that she had lived in the United Kingdom for over eight years and had a private life in the United Kingdom ( see paragraph 95). The FtTJ referred to the previous finding made by Judge Mensah, that she had shown that she is capable of relocating alone to a new country, forming new relationships and seeking and successfully undertaking paid employment” (paragraph 98).
74. At paragraph 99 the FtTJ as part of his assessment gave weight to and placed reliance on the matters relied upon by the respondent and articulated in the decision letter and the review.
(1) That the appellant was able to return with her child and that the expectation of a single woman to internally relocate in India generally was not unreasonable. There was support available via government programs to provide aid and support single women in India as well as several NGOs. Reference is made to a previous background having been born, raised and educated in India for the majority of her life.
(2) She claimed to speak both Hindi and English (the official languages of India) and was educated up to a high school level and was able to utilise the skills to assist finding employment on return. Reference was made also to the assistance provided by the Home Office if she chose to return.
(3) The appellant had not been living with her partner in a relationship akin to marriage and the partner was not a British citizen. The appellant was in the UK without leave it having been curtailed on 18 November 2018.
(4) As to the best interests of the child as a primary consideration had been taken account of and whether it was reasonable to expect the child to live in another country, the level of integration and how long the child had been away from the country and with whom and where the children would live if they left the UK and any such arrangements. AR had not lived in the UK continuously for the last seven years before the date of the application. AR was born in the UK and had never been abroad but was only four years of age and had not yet begun attending education therefore did not have a social life that would be adversely affected to leaving the UK.
(5) If returned to India they would be returned as a family unit and appropriate support would be available both through local government and NGO assistance as well as the Home Office voluntary fund.
(6) The respondent also considered the claim that AR had not been registered as an Indian citizen after his birth. However external evidence demonstrated that the Indian government had the discretion to register a child as an Indian citizen after the expiry of one year registration period and that it will be possible to have a child officially registered as a citizen with the Indian government.
(7) As to private life, GK was a national of India who entered the UK on 17 January 2017 and claimed asylum on 29 May 2021. She could not meet the rules under paragraph 267 A.D.E based on her length of residence there were no very significant obstacle to her integration into India as she had resided there at the age of 21, including her childhood and formative years. She had retained knowledge of the life, language and culture and will be able to integrate to India. She spoke Hindi and English which are widely spoken in India which would enable her to adapt to life in India socially and culturally. It was noted that she was educated and had experience working in the UK there is no reason why she could not use those skills or find employment upon return. It was considered that there were no exceptional compassionate circumstances raised in her case.
75. The FtTJ applied those findings to the relevant law and his analysis. He set out the well-established article 8 structured approach under Razgar at [103] and having already made a finding that AR was the dependent child of GK who had a family life in United Kingdom, and that AR had resided in the UK for over six years being his entire life that he had a private life. GK had resided for over eight years and had a private life in the UK. Thus, he found that Article 8 was engaged and would have an interference with their family lives and that the decisions were taken in accordance with the Rules and the law, and thus the issue was one of proportionality (see paragraph 105). He reminded himself that if the appellant could meet the Rules it would be positively determinative of the appeal (paragraph 106), however based on his factual assessment each of the appellant could not meet the requirements of the Immigration Rules(see paragraph 107).
76. In terms of the public interest considerations under S117, the FtTJ stated that he had attached “considerable weight” to the appellant’s inability to meet the relevant Immigration Rules when striking the balance; that he attach little weight to each of the appellant’s private life established in the UK as it was while their immigration status was precarious ( paragraph 108).
77. The FtTJ applied GEN3.2 and GEN3.3 and whether there were any unjustifiably harsh consequences for the applicant, their partner or a relevant child (in this case AR ) and took into account as a primary consideration the best interests of any relevant child and also had taken into account section 55 of the Borders, Citizenship and Immigration Act 2009 (see paragraph 109 ). The FtTJ found in this respect that AR was an infant who had just started in year one at a school. He had spent his entire but very short life in the United Kingdom. The identity of his biological father is not clear and FG now claims to be his father, is no longer in a relationship with his mother and they live in separate cities without a genuine and subsisting relationship. He found that neither JK, AR or FG are British citizens. At paragraph 110, the FtTJ accepted the respondent’s argument ( paragraph 30 – 31 of the review) that whilst AR had lived in the UK since birth, this was a factor to take into account but that the key question was why would the child be expected to leave the United Kingdom ? To which the answer is “because GK has no right to remain in the UK” and thus as a family the best interests of AR had been adequately addressed . The FtTJ also accepted the argument of the respondent that because AR was so young he would have no cultural barriers upon readjusting to normal life in India. That it was in the best interests of AR to remain with his mother and that GK and AR would be returned India together and would be a family unit upon return. The FtTJ stated that he attached weight to those matters identified from the respondent’s review and concluded that it was in the best interests for AR to return to India with GK his mother with whom he lives and to continue his education there in his mother’s home country.
78. In his conclusion on proportionality the FtTJ stated as follows, “having considered the evidence of the appellants in detail, I have stood back and considered it in the round by weighing those aspects that tell both for and against their claim. I have thus concluded that each appellant has not shown that there are serious and compelling family or other considerations or unjustifiably harsh consequences that make their exclusion undesirable. I have thus also concluded that there are no Article 8 exceptional circumstances (see paragraph 111) and further stated “having regard to all of the above factors, I have concluded that the decision to refuse the appellant’s application for permission to stay in the UK strikes a fair balance between the public interest in effective immigration control on the one hand and the rights and interests of each of the appellants, on the other. I therefore conclude that the decision is not unlawful under section 6 of the Human Rights Act 1998 ( see paragraph 112)”.
79. In the earlier part of his decision, the FtTJ undertook a detailed analysis of the issues raised based on the evidence that had been before him. Those detailed findings of fact formed the factual basis for the legal assessment of proportionality. I am satisfied that that was what the FtTJ meant when he said, “having considered the evidence of the appellants in detail.” Whilst the grounds identify the issues of paternity, fear of the family, statelessness, relationship between AR and FG as amounting to exceptional circumstances, those factual circumstances had all been determined as weighing against the main appellant. On those findings of fact none of those factual issues were resolved in favour of the appellant. As to the child’s welfare, the FtTJ undertook a “best interests” assessment but concluded that AR’s best interests taken as a primary consideration were for him to remain with his mother as a family unit. As set out earlier, I reject the submission made in the Rule 25 response that the judge failed to address section 117B (6). The FtTJ correctly addressed the issues based on the circumstances as they were at the date of the hearing namely that AR was not a qualifying child as he was not a British citizen nor had he lived in the UK for seven or more years. The FtTJ also identified on the respondent’s side of the balance that he had found that the appellants could not meet the Immigration Rules to which he attached “considerable weight” (see paragraph 108) alongside GK having retained cultural and social ties and being able to integrate to India. Contrary to the Rule 25 response the FtTJ was entitled to place considerable weight on the fact that the appellants could not meet the Immigration Rules. Weight was a matter for the judge to determine. The FtTJ also identified that he attached little weight to GK’s private life when applying the public interest considerations under section 117B.
80. The assessment of proportionality was therefore undertaken on that basis and I am satisfied that the FtTJ did carry out a balancing exercise as evidenced at paragraph 111. He reminded himself of the evidence which he said he had considered “in detail” alongside the statement where he had said “I have stood back and considered it in the round by weighing those aspects that fell for and against their claims.” That could only be a reference to having carried out a balancing exercise because reference is expressly made to weighing those aspects that fell for and against the appellants’ claims. None of that assessment was irrational as the grounds claim. Irrationality is a high hurdle to demonstrate and on the detailed factual analysis undertaken here such criticism cannot realistically be advanced. Nor can it be advanced on the basis of general irrationality when considering the assessment of proportionality. The FtTJ applied the correct test as to whether there were any “unjustifiably harsh consequences” but having regard to all the facts concluded that the decision of the respondent was not disproportionate but that it “struck a fair balance between the public interest in effective immigration control on one hand and the rights and interests of each of the appellants on the other.” Consequently, when the decision of the FtTJ is read in its context, it is not demonstrated that the FtTJ erred in law in his assessment of proportionality by failing to undertake a proportionality balance of the relevant factors or by failing to rationally explain the decision he had made.
81. For those reasons and having considered the decision of FtTJ Emmerson in light of the evidence and factual findings made I am satisfied that there is no error of law in the decision based on the grounds as advanced. Consequently, the appellant has not established that the FtTJ’s decision involved the making of an error on a point of law, therefore the decision shall stand.
82. As earlier noted, there has been further evidence provided relating to the issue of paternity but reasons were given for not admitting it as evidence relevant to whether there was an error of law. However, it is open to the appellant to make further submissions to the Secretary of State in the event of any change of circumstances or fresh evidence if so advised.

Notice of Decision:
The decision of the FtTJ did not involve the making of an error of law and the decision of the FtTJ shall stand.

9 May 2026
Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds