Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000092
First-tier Tribunal No: HU/63671/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of October 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

OZNUR GULEC
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Ms Keerthy, Senior Presenting Officer

Heard at Field House on 23 September 2026

DECISION AND REASONS

Introduction and Background
1. This appeal decision follows my previous decision, dated 11 August 2026, in which I found that the First-tier Tribunal (‘the FtT’) erred in law in how it resolved the appellant’s Article 8 human rights ground of appeal. The decision was set aside in its entirety without any findings of fact preserved. The underlying human rights ground of appeal now falls to be remade.
2. The appeal arose in the context of the appellant's application for entry clearance to travel to the UK with her minor British son. They currently reside in Turkey. The appellant’s son was born in the UK where his father continues to live. His father is no longer in a relationship with the appellant and did not sponsor the application.
Appeal to the Upper Tribunal
3. At the error of law hearing, I made directions to enable the appellant to apply to participate in the hearing remotely from Turkey. No application was made. The remaking hearing proceeded in the appellant’s absence and I heard oral submissions from Ms Keerthy before reserving my decision. I will refer to any submissions of significance in the discussion section below.
4. In preparation for the hearing, I learned that the appellant had attempted to provide documents in support of her case by emailing a link to an online document repository. This was not effective provision of evidence in accordance with tribunal procedure. I therefore directed the appellant to provide those documents by uploading them to the CE-File system used for this purpose. The appellant substantially complied with my direction and provided part 1 of 2 parts in this way. I was able to access these documents and have considered them in deciding the appeal. It would appear that the appellant attempted to do the same with the second part but was unable to do so. Having considered part 1, it appears that this included the new material relied upon for the purposes of the remaking hearing and included a psychologist’s letter dated 10 March 2026. Part 2 appears to mirror the documents which were provided by the parties during the FtT proceedings. I have already considered these documents as they were provided in the context of the error of law stage of the current appellate proceedings. I am satisfied that there is no unfairness or forensic disadvantage to the appellant in proceeding to come to a decision on the merits of this appeal on the strength of the material I have been able to consider following proper service.
Legal Framework
5. Article 8 of the ECHR provides:  
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is 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.
6. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue. The first two questions are: “(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?”. At [18], the approach to determination of these questions was discussed further. What was stated in relation to the second question is of particular relevance: “Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention […]”.
7. The Court of Appeal recently reviewed the leading authorities and gave authoritative guidance as to how the engagement question, together with the necessary jurisdictional peg, should be lawfully approached. In SSHD v IA & Others [2025] EWCA Civ 1516; [2026] 2 W.L.R. 1001, the court made the following observations at paragraphs [100] and [142]-[143] in relation to extended family members living in Gaza who sought to join their sponsor who was resident in the UK:
[100] […] Whilst persons seeking to enter an ECHR state from outside the jurisdiction of the ECHR will not have their own rights under article 8, if they have pre-existing family life with a person within the territory of the ECtHR, article 8 may impose a positive obligation on a state to admit those people, if they have family life with a person within the territory. That is what is meant by family life being unitary (see [141] under ground 2 below). The concept of unitary family life does not, however, mean that the state is under a positive obligation to admit every member of the wider family of the person within the territory of the UK.

[142] Moreover, even if family life had existed between the sponsor and the brother or between the sponsor and the family, that would not have meant that the article 8 rights of the brother or the family outside the UK were the main focus of the proportionality exercise under article 8(2). The main focus of that exercise would have been the family life of the person within the jurisdiction of article 1 (here, the sponsor), but that family life had to be considered as being a unitary family life with his brother or the family outside the UK. The unitary family life of the brother with his own family outside the UK is also not the focus of the proportionality exercise.

[143] This is not, as the family submitted, a distinction without a difference. As we have explained at [100] above, the UK as an ECHR state is not under a positive obligation to admit every member of the wider family of the person within the territory of the UK. The positive obligation could only extend, even if such family life existed, to those who have family life (for the purposes of article 8(1)) with that person, in this case the brother (or, as the family argued, the family). Moreover, the person who has "the right to respect for his … family life" under article 8(1) is the sponsor, who is within the jurisdiction of article 8 , and the requirement that "[t]here shall be no interference by a public authority with the exercise of [the sponsor's right to family life]" under article 8(2) encompasses the brother or the family (as the persons outside the UK) because interference with the family life of the sponsor (which he shares with the brother or with the family) necessarily interferes with the sponsor's family life with him.
8. Razgar established that the assessment of proportionality, if Article 8 rights are engaged, is best undertaken by adopting a balancing exercise which takes into account the factors weighing in favour of the appellant’s and their family’s personal interests against the public interest in maintaining effective immigration controls.
9. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society. The executive’s policy, as reflected in the rules approved by Parliament are deserving of considerable respect in any balancing exercise (SSHD v IA & Others at [109]-[110], [142] and [158]-[169])
10. S.117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been disproportionately breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.   
11. If the fifth question relating to proportionality is reached, Lord Bingham, in his judgment in Huang v SSHD [2007] 2 AC 167 at paragraph 20, provided further guidance as to how this should be assessed:   
[…] the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.  
12. In CAO v SSHD [2024] UKSC 32, the Supreme Court recently considered how tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment: 
[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.
Discussion
13. With the above principles in mind, I turn to the appellant’s Article 8 human rights ground of appeal. The essence of her case is that it is firmly in the best interests of her British son for her to be granted entry clearance to reside in the UK. Her primary argument is that if she is not permitted to come to the country of her son’s birth, he will be effectively deprived on the ability to substantively enjoy the benefits of his British citizenship. These are arguments which could gain a foothold if there is first the necessary jurisdictional peg on which such a case could be advanced and then only if Article 8 rights are properly engaged.
14. As can be seen from the recent analysis of Article 8 rights in IA & Others, the protections of Article 8 do not extend from the UK across the globe unless there is a primary rights holder in this jurisdiction. That is precisely why in claims and appeals for entry clearance there will inexorably be an individual in the UK who is sponsoring the application. It is their Article 8 rights which are the primary focus of the Article 8 analytical exercise. In the present matter, it is only the appellant’s ex-husband, her son’s father, who is in the UK. The appellant does not have any ongoing relationship with him and has described how she was victim to domestic violence at his hands in the past. Her son sees his father once a year but he too does not appear to have a close relationship with him. One of the reasons advanced for entry clearance to be granted is to put in place the conditions to allow the child to develop a closer relationship with his father and his family together with a desire to forge a connection with the UK as the country of his citizenship and birth. However, the point remains that the only asserted familial connection to the UK is with a man who does not seek to sponsor the application and has not supported the claim in any way.
15. To the extent that any private life claim is asserted, this is even more problematic from a jurisdictional perspective. The appellant and her son simply have no recent experience of living in the UK. They have lived together as a cohesive family unit in Turkey for over 10 years. Despite the fact that the child is a British citizen, it cannot be sensibly argued that he has established a private life in the UK. The only life he has known has been in Turkey for almost the entirety of his young life. The wish to develop a private life in the UK cannot conceivably amount to an existing private life in a country with which he is almost entirely unfamiliar.
16. Without a meaningful family or private life connection to the UK, notwithstanding the child’s British citizenship, I am not satisfied that the territorially confined protections of Article 8 properly arise.
17. Even if I am wrong that there is on the facts of this case no jurisdictional peg on which to hang this Article 8 claim, I am also not satisfied that Article 8 rights are engaged in any event. As explained in the passages cited above from Razgar, the immigration decision must have an impact which is sufficiently consequential and grave that it meets the minimum level of severity to properly engage Article 8. While it is clear that the appellant and her son share a family life together, it has, for many years, been exclusively enjoyed in Turkey. The decision to refuse the appellant entry clearance to facilitate her son’s ability to develop a life in the UK does not interfere with their lives as they know it. The decision has the effect of preserving a status quo which has existed for more than a decade. The family life they have shared will not change. The fervent wish of both the appellant and her son to live together as a family in the UK does not come close to meeting the minimum level of severity required for such a claim to have a prospect of succeeding.
18. I have considered the best interests of the child including his letter setting out his wish to live in the UK with his mother so that he may get to know his father and his family better as well as the country of his birth and citizenship. I have also considered the psychologist’s letter of 10 March 2026 in which the child’s diagnosis of ADHD and regular treatment is set out together with the challenges he currently faces in Turkey. The emotional support he receives from his mother was vividly described as was the child’s wish to foster a closer relationship with his father. However, these factors only gain traction in an Article 8 assessment if there is jurisdiction to consider those rights, and the claimed rights are engaged. As I have explained, neither can be said on the facts of this case. It may well be in the best interests of this child to live in the UK with his mother and thereby get to know his father and the UK more intimately, but in order for such matters to feature, there must be Article 8 rights in scope.
19. I am not unsympathetic to the appellant and her son’s unusual circumstances, and it may be that there are other means by which the child can fully enjoy his British citizenship but a claim founded on Article 8 is not the applicable legal framework.
Notice of Decision
The appeal is dismissed on Article 8 human rights grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 September 2026