Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000043

First-tier Tribunal No: HU/55744/2024
LH/00048/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DAVINDER SINGH
(No ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr D Simpson (Senior Home Office Presenting Officer)
For the Respondent: Mr H Broachwalla (Counsel)

Heard at Field House on 1 September 2026

DECISION AND REASONS
1. This is the re-making of the decision following the setting aside of the decision of First-tier Tribunal Judge Moffatt (“the Judge”) who allowed the appeal of Davinder Singh on human rights grounds (“the decision”). My decision setting aside the Judge’s decision is appended to this decision as a separate annex.
2. For convenience, I shall refer to the parties as they appeared before the First-tier Tribunal (“FtT”). Therefore, I shall refer to the Secretary of State as ‘the respondent’ and to Davinder Singh as ‘the appellant’.

Background
3. The appellant is a national of India. The appellant made a human rights claim on 14 August 2023. The respondent made a decision on 10 May 2024 to refuse the human rights claim. The appellant appealed to the FtT and his appeal was heard on 1 August 2025. In the decision dated 1 November 2025, the Judge allowed the appeal on human rights grounds.
Appeal to the Upper Tribunal
4. The respondent applied for permission to appeal to the Upper Tribunal (“UT”) on 7 November 2025. Permission was granted by First-tier Tribunal Judge Parkes on 2 January 2026.
Upper Tribunal Hearing
5. On 7 April 2026, the error of law hearing was listed before me. Having heard submissions, I reserved my decision. In a decision dated 17 April 2026, I found the FtT’s decision did involve the making of a material error on a point of law and I set aside that decision. I retained the matter in the UT for evidence to be heard in respect of Article 8.
6. At the remaking of this appeal on 1 September 2026, I heard evidence from the appellant and his partner Ms Zainab and oral submissions from Mr Simpson and Mr Broachwalla. At the conclusion of those submissions, I reserved my decision.
Analysis and Conclusions
7. The starting point for consideration of article 8 claims is Lord Bingham’s judgment in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 which requires that, when assessing article 8, a decision maker consider the following five questions [17-20]:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
8. The respondent accepts that the appellant and his partner have a genuine and subsisting relationship. I find that they have established a family life. I find that the right to a family life is protected by article 8. I am satisfied that the immigration decision would interfere with the appellant’s right to a family life and that the interference would engage article 8(1).
9. I find that the interference would be in accordance with the law and the legitimate aim would be immigration control. The issue in this matter comes down to a question of the proportionality of the immigration decision in relation to the appellant’s family life, subject to the public interest considerations in part 5A (Public Interest Considerations) of the Nationality, Immigration and Asylum Act 2002.
10. In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors (Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC)). I have therefore carried out a best interest assessment first, before moving on to consider the public interest considerations and finally carrying out a holistic evaluation as part of the proportionality balancing exercise.
Best Interests Assessment
11. The best interests of a child are a primary consideration. I find that a composite part of the best interest assessment includes the child’s age and their ability to adapt to life in another country. I find the relevant child is aged under 2. I find there is no dispute that her family and private life revolve around her parents. I accept and find from the evidence I heard that the child does not spend any time with the appellant’s partner’s family. Therefore, if the appellant, his partner and the child were to relocate to India, the child would not be deprived of any existing relationships with the extended maternal family. I find her entire family support network consists of her parents who care for her on a daily basis. I find, given the child’s tender age, that it would be in her best interests to remain with both parents given she lives with both parents and they jointly care for her. As she has not formed any private or family life outside of the family home, if required to move to another country, and absent any other countervailing factors, I find that she could easily adapt to a life in another country with both parents.
Section 117B of the Nationality, Immigration and Asylum Act 2002
12. I have had regard to part 5A (Public Interest Considerations) of the Nationality, Immigration and Asylum Act 2002.
13. I place significant weight on the need for the maintenance of effective immigration control (section 117B(1)). I note that it is in the public interest that persons who seek leave to remain are able to speak English. The appellant gave evidence in English. I find that he speaks English. I find the appellant’s ability to speak English is a neutral factor.
14. The appellant does not work and is financially reliant on his partner. His partner was working prior to maternity leave. However, she has since been made redundant. She is presently in receipt of benefits but is actively looking for employment. Therefore, at the date of the hearing, the appellant is not financially independent. I find it is in the public interest and in the interests of the economic well-being of the UK that persons who seek leave to remain are financially independent (section 117B(3)).
15. Section 117B(4) states that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK unlawfully. That statement is not qualified in Part 5A. I find the appellant came to the UK on a visitor’s visa. Following expiry of that visa, the appellant claimed asylum. The claim for asylum was subsequently withdrawn. The appellant then made the application which is the subject of this appeal on 14 August 2023. I find the appellant was here in the UK unlawfully and that little weight should be given to the relationship formed with his partner (section 117B(4)).
16. I find that little weight should be given to any private life established when his immigration status has been precarious (section 117B(5)).
17. I find that the child of this family is a qualifying child for the purposes of section 117B(6) because she is a British citizen. I find the appellant has a genuine and subsisting parental relationship with a qualifying child. The public interest does not require the removal of the appellant where two conditions are met. Firstly, where the appellant has a genuine and subsisting parental relationship with a qualifying child and secondly, where it would not be reasonable to expect the child to leave the UK (section 117B(6)). I have already found condition 1 is met. As to whether it is reasonable to expect the child to leave the UK, Mr Simpson argued that even though the child is a British citizen, it would be reasonable to expect her to leave the UK as she is less than 2 years of age and her family and private life revolve around her parents (Azimi-Moayed & Ors (decisions affecting children; onward appeals: Iran) [2013] UKUT 197 (IAC)). Mr Simpson also argued there is no reason why the child could not adapt to life in India within a reasonable period of time.
18. Mr Broachwalla argued that the respondent’s own policy document ‘Family life (as a partner or parent) and exceptional circumstances Version 29’ states that the respondent would not normally expect a qualifying child to leave the UK:
“The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.”
19. Mr Simpson stated that the starting point can be displaced by a number of considerations set out in the policy document. I have taken into account these factors when considering the reasonableness of the child leaving the UK.
20. I find that the appellant is a national of India but his partner is a dual British and Pakistani national. I find the appellant will be able to enjoy the full rights as an Indian national on return to India.
21. I have taken into consideration the country specific information, specifically those relating to interfaith marriages. I find the appellant and his partner are in an inter-faith relationship. The appellant is a Sikh from India, whereas his partner is a Muslim who is dual British/Pakistani. Mr Broachwalla submits that there is significant intolerance towards inter-faith relationships in India and there have been reports of those in inter-faith relationships being discriminated against, subjected to death threats and even killed in India by not just family members, but wider society. Mr Broachwalla submits that societal attitude and treatments of Muslims in India is negative, with violence and discrimination commonplace. Reliance was placed on the respondent’s policy document titled ‘Country Policy and Information Note India: Religious minorities and Scheduled Castes and Tribes Version 4.0 April 2024’ which confirm that Muslims experience discrimination in employment and difficulty accessing housing. They can also experience discrimination in accessing healthcare and basic services. Some Muslims experience harassment and discrimination, hate speech, violence, religiously motivated killings, and mob attacks, particularly from Hindu nationalists. I accept from the respondent’s policy document that should the appellant’s partner relocate with the appellant to India, that she may experience discrimination in employment, difficulty accessing housing and difficulty accessing healthcare. I find that the probability of attacks from Hindu nationalists are low given the ratio of Muslims living in India and the reported number of such attacks, and therefore, I find she is unlikely to be a target for such attacks.
22. I have considered the articles submitted by the appellant demonstrating the difficulties and obstacles faced by couples in inter-faith marriages from family and society in general. I have also considered the evidence I heard from the appellant and his partner. On balance, I accept the appellant and his partner’s evidence that the appellant’s family in India do not approve of his marriage. I find from the appellant and his partner’s evidence that due to their inter-faith marriage, they would find it very difficult to live together in India as the appellant’s family would not support them financially and emotionally. I find the appellant’s partner does not have a relationship with the appellant’s family. I find she would not be able to rely on them for support and help with integrating. I accept her evidence that on the basis of a lack of support, she would not move to India. However, if the appellant were to return alone, I find from his evidence that he would be able to reside at his parents’ home on a temporary basis.
23. I have considered whether the appellant and his partner can access support from other sources. I find the appellant’s partner does not have a relationship with her own family who live in the UK. I find that relationship was severed when she was placed in a foster care at the age of 16 when she was forced to marry her cousin in Pakistan. I find since her marriage to the appellant who is a non-Muslim, she has not had any contact with her family. I find she cannot rely on her family for assistance.
24. I accept the evidence of the appellant’s partner that Sukhvir Singh Judge was a former colleague from whom she had borrowed money. The transaction for 13 June 2023 was her returning the money to him. I find the appellant and his partner have a small circle of friends who provide emotional support, and who purchase items and gifts for their child as and when required. Having heard oral evidence, I accept and find these friends do not provide financial support. I find that on relocation to India, these friends are unlikely to be able to assist with financial support or help with integrating or reintegrating.
25. I accept and find from Mr Broachwalla’s submissions and the FCDO’s website that the appellant’s partner, as a British-Pakistani dual national, would need to apply for an Indian visa using her Pakistani passport. I find from the FCDO’s website that visa processing times for British-Pakistani dual nationals are substantially longer than other visa applications. I find from the articles submitted by the appellant that there are ongoing difficulties faced by individuals with Pakistani nationality (or origin) in obtaining an Indian visa.
26. It is likely that the child of this family would be brought up in the cultural norms of both Indian and British/Pakistani heritage. At present, I find the child is not yet 2 years old. I accept the appellant’s partner’s evidence that their child, a British citizen, would lose out on all the opportunities of her citizenship upon relocation. That is one factor amongst several factors I have to consider. I have already found that if required to relocate, and absent any other countervailing factors, that the child, given her age, could easily adapt to a life in another country with both parents. I now place that finding, which was made in isolation of other factors, into the context of the findings I have made regarding the difficulties likely to face the appellant and his partner on relocation to India. On balance, I find the difficulties they are likely to face with integrating in Indian society due to their inter-faith marriage would impact on their emotional and psychological stability, which would in turn impact on their ability to bring their child up in a happy and secure environment.
27. I have carefully considered whether it would be reasonable to expect the child of this family to leave the UK and relocate to India. Whilst I accept relocation may be a reasonable proposition for a family with a solid support network, I find there are many countervailing factors in this case which would render that proposition unreasonable. I find this is a family that lacks any support network either presently or upon relocation. Any support network that existed previously was extinguished when they chose to marry against their families’ wishes. I find the lack of support network combined with the discrimination they are likely to face due to their inter-faith marriage would negatively impact on their ability to bring their child up in a happy and secure environment. I add to my assessment that as a British citizen, the child of this family would lose out on all the opportunities of her British citizenship. I conclude it is unreasonable to expect the child of this family to leave the UK.
28. On the basis of my findings of fact that it is unreasonable for the child to leave the UK, I find the public interest does not require the removal of the appellant.
Proportionality
29. I now balance all those factors I have considered. On the respondent’s side, I place significant weight on the maintenance of immigration control. I place weight on the fact the relationship was formed when the appellant had no lawful leave in the UK. I place weight on the fact the appellant is not financially independent.
30. On the appellant’s side of the scales, I place weight on the fact the public interest does not require the removal of the appellant. I find that to require him to leave the UK would effectively split this family. I have already found it would be in the child’s best interest to live with both parents. Therefore, a decision sanctioning removal of the appellant and which results in separation of the child from the appellant, is not in the best interest of the child. I find that the child “must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (Zoumbas v Secretary of State for the Home Department [2013] UKSC 74).
31. Having weighed all factors on both sides of the scales, I find the scales tip in favour of the appellant because of the impact on the child of his removal and the public interest does not require the removal of the appellant. I find there are significant difficulties with the appellant and his family continuing their family life in India. I conclude on the balance of probabilities that the refusal of leave to remain would cause the appellant and his family hardship or grave consequences.
32. I now deal with Mr Simpson’s submission that the appellant should be required to leave the UK to make an entry clearance application from abroad (Chikwamba v Secretary of State for the Home Department [2008] UKHL 40). I have taken into consideration Alam v Secretary of State for the Home Department [2023] EWCA Civ 30 and Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC).
33. Mr Simpson argued that the separation would be temporary for a period of 6 months. It was also argued that it is not relevant that the appellant cannot meet the financial requirements of Appendix FM presently as those with weaker cases should not be allowed to circumvent the requirements of immigration control.
34. I find that temporary removal is sufficient to engage article 8 because such a removal would still result in the separation of the appellant from his partner and British citizen child. I find there is doubt as to whether an application for entry clearance is likely to be granted. This is because the appellant’s partner does not presently work and the appellant is unlikely to meet the financial requirements of Appendix FM at the date of hearing. I find the appellant would not be circumventing the requirements of immigration control because he would be on a much longer route to settlement. I have placed significant weight on the public interest which in this case does not require the removal of the appellant. Having already found the public interest does not require the removal of the appellant, and having already concluded that the appellant and his family cannot continue their family life in India, I find that any removal including removal to facilitate an application for entry clearance from abroad is not in the public interest.
35. In the circumstances and taking into account all the other factors I have set out above, I conclude on the balance of probabilities that the refusal of leave to remain would cause the appellant and his family hardship or grave consequences. It follows from what I have just concluded that the refusal of leave to remain would be an unjustified interference under article 8(2).
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision was set aside by the decision of the Upper Tribunal. It is re-made as follows: the appeal is allowed.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 September 2026

ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000043

First-tier Tribunal No: HU/55744/2024

THE IMMIGRATION ACTS
Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

DAVINDER SINGH
(No ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Keerthi (Senior Home Office Presenting Officer)
For the Respondent: Mr H Broachwalla (Counsel)

Heard at Field House on 7 April 2026

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Moffatt (“the Judge”) who allowed the appeal of Davinder Singh on human rights grounds (“the decision”). For convenience, I shall refer to the parties as they appeared before the First-tier Tribunal (“FtT”). Therefore, I shall refer to the Secretary of State as ‘the respondent’ and to Davinder Singh as ‘the appellant’.
Background
2. The appellant is a national of India. The appellant made a human rights claim on 14 August 2023. The respondent made a decision on 10 May 2024 to refuse the human rights claim. The appellant appealed to the FtT and his appeal was heard on 1 August 2025. In the decision dated 1 November 2025, the Judge allowed the appeal on human rights grounds.
Appeal to the Upper Tribunal
3. The respondent applied for permission to appeal to the Upper Tribunal (“UT”) on 7 November 2025. Permission was granted by First-tier Tribunal Judge Parkes on 2 January 2026 on the following terms:
“2. The grounds argue that the Judge erred in considering the Appellant's child which was a new matter arising after the decision and for which consent had not been given by the Presenting Officer. It is also argued that the Judge erred in the approach to EX.1 and whether there were exceptional circumstances and had not addressed the family's ability to live in India.
3. The grounds are clearly arguable. It does not appear that consent was sought or forthcoming and even if the fact of the Appellant's child could be considered it is arguable that the Judge did not approach EX. 1 properly. The Judge does not appear to have considered whether the finances available would be sufficient to meet the income support threshold for a family of that size.
4. The grounds disclose arguable errors of law and permission to appeal is granted.”
Upper Tribunal Hearing
4. Ms Keerthi addressed the UT on the matters set out in the respondent’s application for permission to appeal which can be categorised as follows: The Judge materially erred in a) considering a new matter without seeking the consent of the Presenting Officer; b) failing to correctly consider the requirement of EX.1.(a) of Appendix FM; c) failed to provide adequate reasoning in respect of the best interest assessment; and d) failed to provide adequate reasons as to why the appellant should not return to India and make an entry clearance application. I heard submissions in response from Mr Broachwalla on behalf of the appellant. Ms Keerthi then addressed me on matters arising from Mr Broachwalla’s submissions.
5. At the end of the submissions, I reserved my decision. I canvassed the views of Ms Keerthi and Mr Broachwalla on whether the matter should be retained in the UT or whether it should be remitted to the FtT in the event there was an error of law found.
6. Ms Keerthi was neutral on the issue. Mr Broachwalla indicated that if the UT found an error in respect to Ground 1, then the matter should be remitted to the FtT for remaking but preserving the finding on suitability. If the UT found an error in respect of Ground 2, then it was appropriate to retain the matter in the UT for evidence to be heard in respect of Article 8 and the reasonableness of the child returning to India.
Analysis and Conclusions
7. Having heard oral arguments and having carefully considered the decision, I am satisfied the decision did involve the making of material error on a point of law in relation to Ground 2. My analysis of the material errors is dealt with below.
Ground 1
8. It is argued in respect of Ground 1 that the Judge had committed or permitted a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings by considered a ‘new matter’ without seeking the consent of the respondent via the Presenting Officer in attendance at the hearing.
9. In this case, there is no dispute that the matters contained within the supplementary bundle before the FtT was a ‘new matter’. The issue here is whether the respondent consented to the FtT considering the ‘new matter’. Ms Keerthi argued that the Presenting Officer stating she was not prejudiced by the late service of the bundle was not the same as the respondent consented to the FtT considering the ‘new matter’. Ms Keerthi argued that it was the duty of the Presenting Officer, the Judge and the appellant’s representative to raise this issue as it went to the issue of whether the FtT had jurisdiction. It is argued there is nothing within the decision to indicate that the Judge dealt with this issue.
10. Mr Broachwalla argued that the Respondent was represented by a Presenting Officer at the hearing. There was nothing within the determination to suggest that the Presenting Officer had any issues with the Judge dealing with the purported ‘new matter’. Nothing was raised by the Presenting Officer at the hearing to suggest that the respondent did not consent to the matter being considered. If there were any concerns regarding the purported ‘new matter’, those concerns could and should have been raised by the Presenting Officer however, none were. Furthermore, there is no witness statement from the Presenting Officer to indicate they had raised objections and the Judge proceeded. Mr Broachwalla stated it is entirely speculative to suggest that no consent was given. The decision gave the impression that the Presenting Officer did not object to the late evidence and was content for the Judge to proceed and deal with the issues arising from the late evidence. Mr Broachwalla then took me to the respondent’s policy document which deals with the issue of a ‘new matter’.
11. I find from the respondent’s policy document that it is generally envisaged Presenting Officers would try to consider the matter before the appeal hearing so that consent can be given and so the Tribunal can consider all matters relating to that appellant in a single appeal.
12. It seems to me that this is precisely what happened in this case. It is clear from the decision at paragraph 11 that the Presenting Officer despite the late service, had an opportunity to consider the evidence, was not prejudiced and had no objection to the evidence being admitted. I find it clear that no objections were raised to the FtT’s jurisdiction. I find from paragraph 13, that there was agreement between all parties of the issues to be determined by the Judge.
13. It is therefore clear when one reads those two paragraphs within the decision, that the Presenting Officer did provide consent to the Judge to consider the matters raised within the bundle of documents. Although there was no explicit reference to Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC), I find this was not necessary as all parties were agreed that the FtT would consider the list of issues at paragraph 13. I find no material error has been established.
Ground 2
14. This ground has three limbs. I take each in turn.
First Limb: EX.1.(a) of Appendix FM
15. The first limb is the argument that the Judge made a material misdirection of law by the Judge’s failure to consider the requirements of EX.1.(a) of Appendix FM and secondly failed to provide adequate reasoning with regards to this. It is argued that the Judge must explain why it would not be reasonable to expect the child to leave the UK. It is argued that the Judge did not consider the possibility of the child leaving and accepted the appellant’s wife’s evidence that she would not leave as a fact. It is argued that given the Judge found no insurmountable obstacles to continuing family life outside UK, that it was entirely unclear why it would not be reasonable for the child to go with the appellant to India.
16. Mr Broachwalla argued that the respondent has seemingly conflated the insurmountable obstacles test with the reasonableness test. It is argued that the threshold of whether it would be reasonable for the child to leave the UK is lower.
17. I agree with Mr Broachwalla that the insurmountable obstacles test and the reasonableness test is different. As to whether the Judge failed to provide any or any adequate reasons for the decision pursuant to EX.1.(a), I find that in this case, the Judge did not need to provide a separate analysis on EX.1.(a) because as the Judge correctly identified at paragraph 60 of the decision, EX.1.(a) did not apply at the date of application. This is because the appellant and his partner did not have a child at the date of application. Consequently, I find the Judge correctly directed themselves and the respondent has not established there was a material error on a point of law regarding the Judge’s application of EX.1.(a).
Second Limb: Best Interests Assessment
18. The second limb of Ground 2 is that the Judge failed to provide adequate reasons as to why the child’s best interests could not be met by remaining with both parents in India. It is argued that even though the child is a British citizen, this does not prevent her from leaving the UK and as she was less than 1 year of age and her family and private life revolved around her parents (Azimi-Moayed & Ors (decisions affecting children; onward appeals: Iran) [2013] UKUT 197 (IAC)). It was argued there is no reason why she could not adapt to life in India within a reasonable period of time. Ms Keerthi argued that no reasons have been given as to why the child could not live in India at paragraph 60 of the Judge’s decision.
19. Mr Broachwalla argued that the respondent’s own policy document “Family life (as a partner or parent) and exceptional circumstances Version 27” states that the respondent would not normally expect a qualifying child to leave the UK:
“The starting point is that we would not normally expect a qualifying child to leave the UK. It is normally in a child’s best interest for the whole family to remain together, which means if the child is not expected to leave, then the parent or parents or primary carer of the child will also not be expected to leave the UK.”
20. Mr Broachwalla argued that the Judge had taken into consideration all factors and points to paragraph 75 where the Judge stated that the child’s bests interests did not serve as a trump card.
21. I am persuaded by the submissions made by Ms Keerthi as to a material error of law. I find there were in effect two separate matters the Judge needed to turn their mind to. Firstly, the best interests assessment and secondly whether it was reasonable to expect the child to leave the UK.
22. In relation to the best interests assessment, I find the Judge did not provide any reasoning as to any of the relevant factors that the Judge took into consideration when concluding that it was in the child’s best interests to remain in the UK with her mother. I find there is an absence of consideration of the child’s age and that at that age, her family and private life revolved around her parents (Azimi-Moayed & Ors). I find that a composite part of the best interest assessment includes the child’s age and their ability to adapt to life in another country.
23. I find there is also an absence of any reasoning as to why the appellant’s wife’s evidence that she would not leave the UK was accepted even though the Judge found that both the appellant and his wife had the support of his family and they would not face discrimination on return to India. It was incumbent upon the Judge to explain how and why they reached the conclusion that it was in the child’s best interests to remain in the UK with her mother.
24. In relation to the reasonableness of the child leaving the UK, I find there is an absence of any reasoning of whether it is reasonable to expect a child to leave the UK. I find the Judge did not consider section 117B(6) of the Nationality, Immigration and Asylum Act 2002 which is a statutory requirement that must be applied when the Judge has to decide whether an immigration decision to remove someone from the UK would be in breach of the person’s Article 8 rights. Mr Broachwalla argued that section 117B is mentioned at paragraph 73. Whilst I accept that section 117B is mentioned, the only factors the Judge appeared to have considered at paragraph 73 are section 117B(2) and (3). Mr Broachwalla further argued the reasoning at paragraph 77 is the same analysis for section 117B(6). Having considered paragraph 77, I am not persuaded that the reasoning pertains to section 117B(6). I find the reasoning at paragraph 77 relates to the whether the appellant should be required to leave the UK and make an application for entry clearance from abroad (the ‘Chikwamba’ question).
25. I find that even if the respondent’s policy is that the starting point is the respondent would not normally expect a qualifying child to leave the UK, that did not absolve the Judge from the requirement to make a finding as to whether it was reasonable to expect a child to leave the UK. That assessment is mandated by statute and must be undertaken regardless of whether the child is actually expected to leave the UK. I find the Judge failed to provide reasons or any adequate reasons for their findings on material matters.
Third Limb: Return to Make an Entry Clearance application
26. It is argued in the third limb of Ground 2 that the Judge failed to adequately reason why, in the alternative, the appellant should not be expected to return to India and apply for entry clearance. It is argued that the respondent did not consider that this would be ‘unfair’ when considering the appellant’s breach of immigration rules while his status was precarious which itself should have been afforded little weight (Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58). It is argued that there has been no application of the guidance within Alam & Anor v Secretary of State for the Home Department [2023] EWCA Civ 30 that addressed the ‘Chikwamba’ question further. It is further argued that a full consideration of Article 8 must be undertaken even if it is believed an individual could theoretically, satisfy the requirements for entry clearance. Even if the appellant’s wife could not satisfy the financial requirements, it is argued that the Judge failed to provide adequate reasoning as to why temporary separation between the appellant, his wife and child would be disproportionate.
27. I am persuaded there was a material error of law in relation to the Judge’s reasoning at paragraph 77. I have already indicated that the Judge did consider section 117B(2) and (3). I find the Judge correctly identified that the appellant’s ability to speak English was a neutral factor. However, I find the Judge, whilst correctly identifying that the appellant’s wife’s reliance on benefits was a relevant factor, had failed to weigh the impact of the reliance on public funds, on the respondent’s side of the scales of proportionality.
28. Section 117B(4) states that little weight should be given to a private life, or a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the UK unlawfully. That statement is not qualified in Part 5A. I find there is an absence of any consideration of that factor on the respondent’s side of the scales. I find this is a failure to take into consideration material matters in the section 117B assessment which is a material error of law given the importance of the section 117B assessment.
29. I find the Judge has failed to set out the “pros” and “cons” or any reasoned conclusions as to whether and how the countervailing factors outweigh the importance attached to the public interest in the maintenance of immigration control (section 117B(1)) when reaching the conclusion that it would be unfair for the appellant to return to India and apply for entry clearance. I am satisfied that the conclusions reached is not supported by any or any adequate reasons. As there was a legal duty on the Judge to provide a reasoned explanation for the conclusions reached, I consider that this failure constitutes an error of law. Given the importance of the balancing exercise in the outcome, I further consider that this error of law was material.
Remaking
30. The effect of paragraph 7 of the ‘Practice Statement Immigration And Asylum Chambers of the First Tier Tribunal And the Upper Tribunal’ regarding disposal of appeals in the UT is that where, following the grant of permission to appeal, the UT concludes that there has been an error of law, then the general principle is that the case will be retained within the UT for the remaking of the decision. The exception to this general principle is set out in paragraph 7.(2)(a) and (b) which I have considered carefully alongside the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
31. I find that on the facts of this case, neither party has been deprived of a fair hearing. In the appellant’s case, this is because his claim pursuant to Appendix FM was dismissed and there has been no material error of law found against that part of the decision. In the respondent’s case, the respondent has succeeded in demonstrating there was a material error of law only in respect of the Article 8 of the ECHR claim.
32. I find the Judge fell into material error for the reasons I have already set out above. I find that the nature and extent of any necessary fact finding in the remaking will be confined to one issue namely Article 8 of the ECHR. Within that, the UT will need to remake the best interest assessment, section 117B assessment and the proportionality balancing exercise. I find there is no suggestion that there has been any unfairness arising from the way the case had been dealt with below such that it requires the matter to be remitted to the FtT. I have concluded that this case should follow the general procedure and be remade in the UT and not be treated as an exception under paragraph 7.2(a) or (b).
Directions
33. I accept Mr Broachwalla’s submission that the findings on suitability are unchallenged and should be preserved. I also accept the submission that the appellant should have an opportunity to provide further evidence as to whether it is reasonable for the child to return to India. The directions I make are the following:
a) The appellant to file and serve any further evidence he seeks to rely on by no later than 4pm 15 May 2026.
b) The matter to be listed for a resumed hearing for the first available date after 5 June 2026.
Notice of Decision
c) The Secretary of State’s appeal is allowed.
d) The making of the FtT’s decision did involve the making of a material error on a point of law. The decision is set aside.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 April 2026