Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2026-000071 & UI-2026-000072
FtT Nos: HU/64125/2024 & HU/64126/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 August 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

(1) YAHA
(2) NSAA
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms K Reed, Counsel, instructed by the Government Legal Department
For the Respondent: Mr B Bundock, Counsel, instructed by Bindmans LLP

Heard at Field House on 29 July 2026

ORDER REGARDING ANONYMITY

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, YAHA and NSAA are granted anonymity.

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

DECISION AND REASONS
Introduction
1. In this decision I refer to YAHA and NSAA, the appellants before the First-tier Tribunal, as ‘Y’ and ‘N’ and collectively as ‘the appellants’.
2. The appeal is against the decision of the First-tier Tribunal allowing the appellants’ appeals on human rights (article 8 ECHR) grounds. The decision was sent to the parties on 3 October 2025.
3. I am grateful to both Ms Reed and Mr Bundock for their clear and concise oral and written submissions, being of the expected high standard from both counsel. I am also grateful to the respective solicitors for their case preparation in this matter.
Anonymity Direction
4. The First-tier Tribunal issued an anonymity direction in respect of both appellants. No reasons were given for the grant of anonymity. Neither representative requested that the anonymity direction be set aside.
5. I have considered the papers in this matter with care and observe that the appellants are presently living in difficult circumstances in Gaza, as addressed elsewhere in this decision. At this time, I consider that their article 8 private life rights and those of their daughter, the sponsor, outweigh the right of the public to know their identity as parties to these proceedings, protected under article 10 ECHR. I reaffirm the anonymity direction above.
Relevant Facts
6. The appellants are a married couple. They are Palestinians who reside in the Gaza Governorate, State of Palestine. The United Kingdom formally recognised the State of Palestine on 21 September 2025.
7. On 10 May 2024 the appellants applied for entry clearance under Appendix Family Reunion (Protection) to the Immigration Rules. Their applications were sponsored by their elder daughter, ‘S’, a British citizen who has resided in the United Kingdom with her husband since 2010. Having naturalised as a British citizen in 2014, S subsequently visited her parents in Gaza on three occasions in 2018, 2020 and 2023. Y visited S in the United Kingdom in 2016.
8. The entry clearance applications identified the appellants as having been displaced from their home, which was destroyed by fighting. At the date of application, they were living in a makeshift tent in Rafah, a city in the southern Gaza Strip. They had previously been displaced to Khan Yunis and Al Mawasi, hastily leaving both areas consequent to risk of personal harm from bombing and shelling. In their applications they detailed their living situation to be extremely dangerous and precarious. They confirmed that they did not have access to clean water, washing facilities, or consistent food and medication. A request was made for the applications to be predetermined urgently. Later in May 2024, whilst awaiting a decision on their application for pre-determination, the appellants were again displaced by bombing and shelling. They returned to Al Mawasi.
9. By a decision dated 24 May 2024, the Secretary of State refused to consider the pre-determination request on an urgent basis. The appellants initiated a judicial review challenge to the Secretary of State’s adverse decision and on 11 July 2024 the Secretary of State agreed by her acknowledgement of service to settle the claim. A consent order was sealed by the Upper Tribunal on 16 July 2024.
10. The Secretary of State refused the entry clearance applications by separate decisions dated 24 October 2024. She concluded that the appellants failed to meet the requirements under Paragraph FRP1.1 of the Appendix to the Rules because their sponsor is a British citizen and the relevant validity requirements set out in FRP1.1 are explicit that British citizens cannot sponsor refugee family reunion applications. The Secretary of State considered exercising discretion under Paragraph FRP1.2 but concluded that there were no compelling compassionate circumstances which warranted a grant of entry clearance outside the Rules. When considering whether family life existed for the purpose of article 8, the Secretary of State observed, inter alia:
‘… your sponsor has flown to Gaza on several occasions to visit you, as evidenced by the photographs provided. Whilst these records show you have enjoyed time with your sponsor in Gaza it does not provide evidence of a family life, nor does it show you shared a family life before your sponsor left Gaza. Your sponsor left in 2010 to join her husband in the UK, therefore a period of around 14 years has passed since you and your sponsor may have lived together, and you have spent a significant time apart living in independent family units.’
11. The Secretary of State concluded:
‘Although it is accepted that the evidence you have submitted demonstrates that you have a normal parent-child relationship with your sponsor, this evidence does not demonstrate a level of dependency showing a continuing and close relationship involving real, committed and effective support to the sponsor that would warrant a grant of leave outside the Rules and Article 8 grounds.
Furthermore, you have not provided evidence to demonstrate that you are dependent on your sponsor in your daily life. In your sponsor statement, she states she occasionally sends you money through Western Union. However, you have not provided any records to indicate this is the case.’
12. In the alternative, the Secretary of State considered that if article 8 were engaged, the refusal of entry clearance was not considered to interfere with current family life with the sponsor as neither the appellant nor the sponsor have lived in the same household for approximately fourteen years and have only maintained family life by remote means. No compelling compassionate factors were identified to exist.
The First-tier Tribunal Decision
13. The appeal came before the First-tier Tribunal on 30 September 2025. Both parties were represented by counsel. The sponsor gave evidence and was cross-examined, as was Laura Pearson, Senior Policy Manager in the respondent’s Human Rights and Family Policy Unit who attended remotely.
14. The appellants agreed at the outset that they could not meet the requirements of the Rules.
15. At [17] the Judge addressed the issue of protected family life and the related legal regime in respect of adult children and their parents. I cite the paragraph in full:
‘17. The first consideration in this appeal is whether there is family life between the sponsor and their husband and children and the appellants. In order to establish whether there is family life it is necessary to show that there is real, committed or effective support in the relationship between family members and that normal emotional ties between adult members would not without more be enough (Kugathas [2003] EWCA Civ 170, Rai v ECO [2017] EWCA Civ 320 and Mobeen [2021] EWCA Civ 886). There is no relevant family life simply because there is a family relationship between two adults who live in different countries (Ribeli [2018] EWCA Civ 611). The appellants’ representative relies in addition on the cases of Pawandeep Singh [2004] EWCA Civ 1075 and EM (Lebanon) [2008] UKHL 64 for what are stated to be the multifarious nature of family life and the importance of social and cultural norms and context in deciding whether family life exists and the need to consider the facts of a particular case.’
16. Ms Reed, who represented the Secretary of State before the First-tier Tribunal, contends, and the appellants do not dispute, that reliance was placed by both parties, both orally and in writing, on the Strasbourg Court judgment of Kumari v The Netherlands (App 44051/20), (10 December 2024). This judgment is not expressly addressed at [17] nor elsewhere in the First-tier Tribunal decision.
17. The Judge detailed S’s evidence over several paragraphs of her decision and concluded that she had no reason to doubt the evidence regarding the contact she had with her family before and after the conflict in Gaza and the financial support she gave to them.
18. At [29] the Judge noted that she was asked to consider the family life between the parents and adult child to be real, effective and committed, taking into account not only the sponsor’s statements but also any information provided by a country expert report and the report of an independent social worker. Though there is reference at [31] to the opinion of the independent social worker being that S and her parents demonstrate co-dependency on each other, there was no express finding as to the existence of (co-)dependency.
19. Judicial findings as to the existence of protected family life for the purpose of article 8 were detailed at [32]:
‘32. In this appeal, I conclude that the sponsor is now the family member who is regarded by the appellants and regards herself as the person primarily responsible for their real, effective, and committed support. She has given a number of statements in which she outlines her efforts to continue that emotional support from the first days of the war through their ongoing suffering of the loss of their home, their need to move to temporary shelter, the strains in their health and well-being and the need for basic necessities such as food and water. I would refer to the fact that there is no predetermined model of family or family life to which Article 8 must be applied (Lord Bingham in EM (Lebanon)). Family life evolves and strengthens for many different reasons. In the facts of this case, the commitment of the sponsor to her parents and their need for emotional and practical support has been intensified by the conditions of the war in which they are suffering. There are more than the usual family ties evident in this relationship.’
20. Having found article 8(1) to be engaged, the Judge proceeded to consider whether the Secretary of State’s decisions interfered with protected family life rights. She found that the most significant factors advanced by the appellants weighed in their favour and established unjustifiably harsh consequences in refusing the applications.
21. In allowing the appeal, the Judge concluded at [43] that there were extremely compelling circumstances affecting the appellants. They had suffered the destruction of their home, subjected to multiple displacement, been forced to live in a tent for long periods, and movement to a safe area was both extremely difficult and physically challenging, especially for N.
Grounds of Appeal
22. The Secretary of State relies upon four grounds of appeal drafted by Ms Reed. The primary challenge is that the First-tier Tribunal misdirected itself in law in respect of whether family life is engaged. In addition, by means of a second limb to the ground, the Secretary of State contends that the decision is further vitiated by findings which were not supported by the evidence.
23. The remaining grounds are in the alternative, namely that there was a failure to consider the nature and quality of family life, an unlawful approach was adopted to ‘interference’, and a flawed proportionality assessment was conducted.
24. The First-tier Tribunal granted permission to appeal by a decision dated 6 January 2026.
25. The appellants filed a Rule 24 response drafted by counsel, Ms Robinson, who represented the appellants before the First-tier Tribunal. This document is dated 11 February 2026. I have read it with care.
Discussion
26. I heard submissions from the parties in respect of the first limb of ground 1, namely whether the First-tier Tribunal misdirected itself in law in respect of whether protected family life rights were engaged under article 8.
27. At the conclusion of those submissions, I indicated to the parties that the Secretary of State had established a material error of law and consequently the only proper course was to set aside the First-tier Tribunal decision in full. I set out my reasons below.
28. The decision of the First-tier Tribunal predates the judgment of the Court of Appeal in IA v Secretary of State for the Home Department [2025] EWCA Civ 1516. [2026] 2 WLR 1001. On behalf of the Court, the Master of the Rolls observed that protected family life, within the autonomous meaning of that term in article 8(1) ECHR, is only to be found between adult siblings where additional elements of dependency involving more than the normal emotional ties are demonstrated. Although the additional elements of dependency test does not require exclusive or complete dependency, it does require more than the existence of support, even if that support was real, committed and effective.
29. The exercise of deciding whether the additional elements of dependency test is satisfied is a fact-sensitive one that is to be decided on a case-by-case basis, with there being many forms of dependency, including financial dependency and dependency created by physical or mental disability. I observe in particular, [116], [119], [122], [123] and [125].
30. Ultimately, the Court of Appeal was clarifying and not creating the correct test to be used when determining whether there is ‘family life’ in immigration cases. It followed a consistent line of case law from the Strasbourg Court establishing that in cases not concerning the core family, family life will only be established where there are additional elements of dependence involving more than normal emotional ties. In adopting the Strasbourg approach, the Master of the Rolls addressed not only Kumari but also the Strasbourg Court’s judgment in Martinez Alvarado v The Netherlands (App No. 4470/21), which was handed down on the same day as Kumari. In both judgments, the Strasbourg Court held that the applicable test for determining family life in the present context was whether there were ‘additional elements of dependence, involving more than the normal emotional ties’, see [35] of Kumari and [36] of Alvarado.
31. Importantly, the Court of Appeal in IA disapproved of earlier authorities, including earlier decisions of its own, which suggested that in order to evidence qualifying family life in the context of an article 8 reunification appeal, a claimant needed to evidence ‘real, committed or effective support’. Whilst this was not an incorrect means of ascertaining the presence of additional elements of dependence ‘it is not the test in itself.’
32. In Entry Clearance Officer v FA [2026] EWCA Civ 1014, the Court of Appeal again emphasised the strictness of the approach that is to be applied when determining whether individuals challenging immigration decisions can properly demonstrate an existence of family life engaging article 8 protection.
33. Mr Bundock submitted that adopting a fair reading of the decision, it was implicit that the Judge had found there to be dependency between S and the appellants. Combining the observation at [17] of the Judge’s decision where she pithily noted both Lord Justice Sedley and Lady Justice Arden’s speeches in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 and the reference to ‘co-dependency’ at [31], it was implicit that the relevant test was applied at [32] when the conclusion was reached that more than usual family ties were evident in the family relationship.
34. Ms Reed submitted that there was a failure to make any finding of fact as to the existence of dependency. Having set out S’s evidence as to her connection, both financial and emotional, to her parents, the next stage of analysis was missing, namely any finding of fact as to the necessary level of dependency. In respect of the independent social worker’s report, whilst there was reference to various observations of the social worker, there was no expressed finding of dependency. There was no clear reasoned engagement with whether dependency for the purpose of the legal test had been established. Ms Reed’s overarching point was that it was entirely unclear what aspects of the relationship the judge found as meeting the relevant test of dependency.
35. I have sympathy for the Judge, who was engaged in a complex appeal at a time when the appellants, on their own evidence and that of S, were living in very precarious and difficult circumstances. I also appreciate that the Judge did not have the benefit of the judgment in IA. However, I properly observe that both parties before her had expressly addressed the judgment in Kumari, understandably addressing it in terms favourable to themselves. It is unfortunate that such step having been taken, the Judge did not expressly reference the judgment when outlining relevant law at [17], nor apply its guidance.
36. I am satisfied that the Judge failed to place into her assessment the requirement that there be additional elements of dependence involving more than the normal emotional ties in its assessment at [32]. This crucial paragraph, setting out the reasoning for the assessment, does not refer to the critical phrase, ‘additional elements of dependency’. I am asked by Mr Bundock to find that this phrase was in the judge’s mind when undertaking her assessment. This is despite their being no express reference to the test referenced in Kumari. It is simply not possible to identify from the facts accepted by the judge any coherent reasoning as to how they meet the relevant legal requirement to secure article 8 protection. At [28], the Judge expressly states that she has set out a summary of the factual background in the appeal, but she took no steps to identify which elements of the sponsor’s evidence establish additional elements of dependency. A further difficulty for the appellants is that having set out the independent social worker’s opinion that there is co-dependency between the sponsor and her parents, there is no actual judicial finding as to whether such co-dependency exists. Whilst it is open for an expert to opine as to dependency, it is not for them to make a finding as to the satisfaction of the relevant legal test. That is solely a matter for a judge. The requirement to establish whether the relevant test is met cannot be abdicated by silence to an expert. Consequently, and of real significance in this appeal, there is simply no express finding that the appellants are dependent upon S.
37. It cannot, in the circumstances, be sufficiently clear to this Tribunal that when applying the legal test required, it is implicit that a finding of dependency was made by the Judge. I also observe at [32] that the Judge commences with a subjective analysis, namely as to how the appellants and sponsor regard themselves in the provision of real, effective and committed support. The paragraph then proceeds to look at the commitment of S and the need of her parents for emotional and practical support on the back of this subjective analysis. It is on this basis that it is said that more than usual family ties are evident in the relationship. This comes nowhere close to satisfying the relevant test.
38. The only proper conclusion is that the Judge did not have the relevant legal requirements in mind. Consequently, the conclusion as to the existence of protected family rights for the purpose of article 8, as found, is legally unsustainable and so establishes a material error of law.
39. In the circumstances there is no requirement for me to consider the remaining grounds of appeal. The only proper course is for the entirety of the decision to be set aside for material error of law.
Reconsideration
40. Both parties requested that the appeal be remitted back to the First-tier Tribunal. I am mindful of the fact that the starting point is that the rehearing be conducted in this Tribunal. However, I accept that the evidence was prepared in the expectation of a ‘Kugathas-type’ appeal before the First-tie Tribunal and there may well be a need for updating evidence to address the now identified test. I am also mindful of the fact that oral evidence will be called and there is a likelihood of detailed legal submissions. In the circumstances, the most appropriate venue for the rehearing of this matter is the First-tier Tribunal sitting in Newcastle.
Directions
41. Whilst it is not the norm for the Upper Tribunal to issue directions in respect of a matter being remitted to the First-tier Tribunal, there is no power preventing such case management being adopted if considered by this Tribunal to be appropriate. Because of the circumstances in which the appellants find themselves, both representatives acknowledged the benefit of the rehearing taking place sooner rather than later. Accordingly, I made the following directions at the conclusion of the hearing:
(1) The remitted appeal is to be heard by the First-tier Tribunal sitting in Newcastle.
(2) Both parties are to file and serve additional evidence to be relied upon no later than 14 days before the next hearing.
(3) This matter is to be listed on the first available date after 1 October 2026.
(4) The matter is to be listed for the convenience of:
(i) Ms K Reed, Counsel, 36 Group, London; and
(ii) Counsel to be instructed by the appellants, with the First-tier Tribunal to liaise with Bindmans LLP to identify Counsel.
Notice of Decision
42. The decision of the First-tier Tribunal sent to the parties on 3 October 2025 is set aside in its entirety for material error of law.
43. The rehearing of this appeal will be at the First-tier Tribunal sitting in Newcastle
44. An anonymity direction in respect of both respondents is confirmed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 August 2026