Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000321
UI-2026-002058

First-tier Tribunal No:
HU/01888/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of June 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

Trish MelLania Dzikamai Madzimbamuto
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: C. Mupara, Great James Street Chambers,
instructed on a direct access basis
For the Respondent: A. Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 17 April 2026

DECISION AND REASONS
Summary
1. There are two central questions in this appeal:
(i) If the Secretary of State for the Home Department makes a legal error in a person’s favour, is it unfair for the First-tier Tribunal (“FtT”) not to base its decision on that error? and
(ii) Does the FtT have jurisdiction to hear an appeal against the refusal of entry clearance to the parent of a British citizen child, if the child is not in the UK and neither the child nor the parent has any existing family ties here?
2. For the reasons set out below, I consider that the answer to both questions is ‘No’, and that therefore the FtT was clearly right to dismiss this appellant’s appeal.
Background
3. The appellant is a citizen of Zimbabwe and the mother of a British citizen who was three years old at the date of the hearing before the FtT. She and her son are living in Denmark, where her son was born. The appellant’s son’s father is a British citizen resident in the UK, but he plays no part in their lives. The appellant says that because her claim for international protection has been refused, she and her son are living in difficult circumstances in Denmark and are at risk of removal to Zimbabwe. She has applied for entry clearance to the UK so that they can continue their family life together in the country of which her son is a citizen.
4. The appellant applied for entry clearance under an Immigration Rule that only applies to children who are already living in the UK. She therefore could not meet the relationship requirements of the Rule under which she applied. In refusing her application, the respondent overlooked this and mistakenly found that that the only requirement of the Rules that the appellant did not meet was the financial requirement. Having found that the appellant did not meet that requirement, she considered whether there were exceptional circumstances that meant that refusing entry clearance would be disproportionate under article 8 of the European Convention on Human Rights (“article 8”). She found there was no evidence of this and refused the application.
5. The appellant appealed, and neither party appears to have noticed the respondent’s legal error prior to the hearing. The respondent has provided the Tribunal with her Presenting Officer’s note of the hearing below, and at the hearing before me, Mr Mupara accepted that it was accurate. The note records that at the outset of the hearing, the FtT brought the respondent’s error to the parties’ attention. The note further records that Mr Mupara accepted that the appellant could not meet the Rules. In its decision dismissing the appeal, the FtT therefore proceeded on the basis that it was “common ground that there is not an immigration rule that caters to this type of case”: [19]
6. The Presenting Officer’s note further records that the FtT heard evidence from the appellant’s financial sponsor in the UK and submissions from the respondent about the proportionality of the decision. During Mr Mupara’s submissions on the appellant’s behalf, it raised for the first time the question of whether article 8 was engaged at all. This is confirmed, briefly, at [7] of the FtT decision. The FtT records here that it directed both parties to make further written submissions following the hearing on the issues of “the engagement of Article 8, and the proportionality of the decision if Article 8 is engaged”. The decision does not record that Mr Mupara raised any complaint of unfairness either at the hearing or in his subsequent written submissions, and he confirmed at the hearing before me that he had not done so.
7. After considering the parties’ written submissions, the FtT dismissed the appeal. It took as its starting point that the appellant did not have a family life with anyone in the UK: [14]. Her article 8 claim was “squarely placed” on her son’s enjoyment of “a private life in the UK as a British citizen”: [16]. The sole issue before the FtT was therefore whether “refusing the appellant entry to facilitate her son accessing the UK is a breach of his, and by extension her, Article 8 rights.”: [11] For the avoidance of doubt, the FtT noted at the end of the decision that there was no suggestion that the appellant or her son enjoyed a family life with the son’s father: [26].
8. The FtT began by noting that it did not have jurisdiction to consider the appeal unless article 8 was engaged (citing AG (Eritrea) v SSHD [2007] EWCA Civ 801 at [28]): [13]. It then recognised the practical importance of the rights arising out of the possession of British citizenship and that the right to nationality is an important aspect of a person’s private life, as discussed in SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 00043(IAC): [17]-[18] and [20]. It further noted, however, that the it was settled law that there is no right under article 8 to enter the UK in order to establish a private here, even for British citizens: [20]-[22] (citing SD at [72]-[73] and SSHD v Abbas [2017] EWCA Civ 1393: [22]-[23]). Nor had the appellant, in her post-hearing submissions, identified any authority suggesting that this type of decision interfered directly with her private life or that of her son: [21].
9. The FtT decided that this was determinative of the appeal: [23]. It expressed its sympathy for the circumstances that the appellant and her son were living in in Denmark and acknowledged their concerns about their potential removal to Zimbabwe. It found, however, that these were matters for the Danish authorities. They were not relevant to the engagement of the UK’s obligations under article 8(1): [25] The appeal was a human rights appeal, and because article 8 was not engaged, the FtT was without jurisdiction to consider any other issue: [27]
The appellant’s grounds
10. The appellant applied for permission to appeal on two grounds.
11. Ground One is that the hearing was procedurally unfair, for two reasons. The first is that the FtT had failed to make a finding on a principal controversial issue in dispute between the parties, namely whether the financial requirement of the Rules was met. The second is that it was not “common ground” between the parties there was no Rule that applied to the appellant. In the refusal decision, the respondent had accepted that the appellant met the relationship requirements of Appendix FM. The FtT had erred by finding that the Rules were not met for a reason that the respondent had not relied on in the refusal decision.
12. Ground Two is that the FtT was wrong to find that article 8 was not engaged. The appellant’s son was a British citizen and “entitled to private life (free education, free healthcare, welfare benefits in the UK, etc.)” and was effectively prevented from accessing that entitlement by the denial of entry clearance to his mother. Nor was the decision in the child’s best interests, something that the FtT had failed to take into account. Finally, the child’s ability to live in the UK was an important aspect of his private life. The “low threshold” for the engagement of article 8 was clearly met.
13. The FtT granted the appellant permission to appeal on the first ground only.
14. On 3 February 2026, the respondent filed a Rule 24 response, together with her Presenting Officer’s record of the proceedings below. She submitted, inter alia, that this record showed that in preliminary discussions before the FtT, the appellant had in fact accepted that she could not meet the Rules.
15. On 24 April 2026, I was informed that the UT had received a written application to renew Ground Two on 16 April 2026. This was assigned the appeal number UI-2026-002058.
The hearing
16. At the hearing before me, I had sight of a 414-page bundle prepared by the UT for the appellant. The appellant had submitted no new evidence. Notably, there was no counsel’s note or witness statement contradicting the respondent’s Presenting Officer’s note of the proceedings before the FtT.
17. Mr Mupara appeared on a direct access basis. He accepted that the appellant did not meet the Rules because her son was not living in the UK, and that he had accepted this at the hearing below. He also confirmed that he had not raised a complaint of unfairness at the hearing below or in his post-hearing submissions. He agreed that if there had been any unfairness in the issue being raised for the first time on the day of the hearing, this had been cured by the opportunity to make post-hearing written submissions. He nevertheless argued that the decision in Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT) meant that the FtT had erred in going behind the respondent’s error of law with regard to the requirements of the Rules. Although this was not how the ground of appeal had been framed, I allowed him to make submissions on this basis, as I considered that the references in the grounds to the judge’s failure to decide the “principal controversial issues” as defined by the parties prior to the hearing implicitly relied on Lata.
18. Mr Mupara then raised the appellant’s late application to renew the second ground of appeal. He explained that the application was out of time because the appellant had only sent him the decision granting permission to appeal the week before. She had not sent it to him previously because she had been busy dealing with her immigration affairs in Denmark and had been without funds. He accepted that these were not, on their own, good reasons to extend time, but he submitted that time should nonetheless be extended because of the compassionate circumstances. He pointed to the FtT’s remark at [25] of its decision that the facts were “not unsympathetic” and urged me to take into account that the appellant’s son was a British citizen and that he faced removal to Zimbabwe, where the standard of living and the quality of health care and education would be significantly lower than in the UK.
19. I allowed Mr Mupara to make submissions with regard to Ground Two. Although there is no good reason that the application to renew was made so late, I am aware that the appeal involves, indirectly, the rights of a British citizen child living in a vulnerable situation outside the UK.
20. After hearing from Mr Mupara and Mr Sheikh, I dismissed the appeal and gave a summary of my reasons. I now set my reasons out in more detail below.
Discussion
The Rules
21. The appellant applied for entry clearance to the UK under Appendix FM of the Immigration Rules. The section under which she applied is entitled “Family life as a parent of a child in the UK”. Its first set of requirements are entitled “Relationship requirements”:
“E-ECPT.2.1. The applicant must be aged 18 years or over.
“E-ECPT.2.2. The child of the applicant must be-
“(a) under the age of 18 years at the date of application;
“(b) living in the UK; and
“(c) a British Citizen, settled in the UK, or in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d).”
22. At the hearing below and again at the hearing before me, it was common ground that the appellant could not meet section E-ECPT.2.2.(b) because her son is not living in the UK. This is not a novel point of law. It is clear from the wording of the Rule itself and was the subject of a careful and detailed consideration by a three-judge panel of the UT in 2020, in SD. The UT concluded in that case that “there is no path […] for parents of a British citizen child not living in the UK under the main routes to entry clearance set out in Appendix FM”: [51] Mr Mupara was right to accept before both the FtT and the UT that the appeal fell to be considered entirely outside the Rules.
The parties’ responsibility to identify the principal controversial issues in an appeal
23. In Lata, the Upper Tribunal set out the following principles potentially relevant to this appeal:
“3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.
“4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified. [….]
“6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.
“7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.
“8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.”
24. However, nothing in Lata establishes that it is an error of law for a judge to raise legal issues with the parties on their own motion. This is made clear at several points in the decision. Thus, at [33], the UT wrote:
“It is important to appreciate that the parties can properly identify their case on appeal to their opponent and to the FtT at various procedural stages, including the filing of the ASA, the undertaking of a meaningful review, at a case management review hearing, at the commencement of a hearing when a judge requests clarification as to outstanding issues and during closing submissions. If by the conclusion of a hearing, a party has not asserted reliance on an issue, a judge can properly proceed on the basis that it is not a matter upon which they are required to reach a decision.” [emphasis added]
25. This clearly envisions an FtT judge clarifying the legal issues either at the start of the hearing or during the parties’ submissions, as was done here.
26. At [34] the UT clarified:
“None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case.” (emphasis added)
Its guidance was confined to issues that had “not been identified by the parties” or “independently drawn the attention of the judge”. Here, too, it is clear that judges can independently identify issues for consideration.
27. In AL v SSHD [2026] EWCA Civ 370, the Court of Appeal strongly endorsed Lata. In the course of doing so, it summarised the sections of the decision quoted above: “That was not to say that the judge in the F-tT should not be curious, and not ask questions if he or she needed more help.”: [82] It reiterated at [90]: “if the F-tT does not understand or is doubtful about an issue which is before it, it should ask the parties to clarify that issue so that it understands it.”
28. There is therefore nothing in Lata that prohibits the FtT from identifying relevant legal issues that have been overlooked by the parties.
29. Moreover, as explained by the Supreme Court in CAO v SSHD [2024] UKSC 32 at [38], in a human rights appeal the Tribunal “acts as a new decision-maker and takes responsibility for its own determination […] of lawfulness under section 6 of the HRA.” It would be inconsistent with that role for it to be required to adopt clear legal errors made by the parties.
30. If the FtT had decided it was without jurisdiction without providing the appellant an opportunity to make submissions on the issue, this might have been procedurally unfair. See: SA v SSHD [2025] EWCA Civ 37. However, Mr Mupara specifically accepted at the hearing before me that the issue of the appellant’s inability to meet the Rules had been drawn to his attention at the outset of the hearing. He further accepted that the question of whether article 8(1) was engaged had been raised at the hearing as well, and that he had then been provided with a fair opportunity to address the issue in post-hearing written submissions. Nor, as noted above, had he raised any concerns about fairness either at the hearing itself or in the post-hearing submissions.
31. As to the “unfairness” of the FtT failing to make a finding about whether the maintenance and accommodation requirements of the Rules were met, this is not, properly understood, a procedural unfairness complaint at all. It is a complaint that the FtT failed to make a finding on a material issue. This is not arguable, because if the FtT was right that article 8(1) was not engaged, it had no jurisdiction to go on to consider whether the decision was proportionate under article 8(2). If the issue of proportionality was not before the FtT, neither the appellant’s current difficult circumstances in Denmark, nor the circumstances she would face in Zimbabwe, nor whether she would be financially self-sufficient in the UK were relevant.
32. I set out below why the FtT was right to conclude that article 8(1) was not engaged.
33. For these reasons, Ground One is not made out.
The jurisdiction of the First-tier and Upper Tribunal (Immigration and Asylum Chamber)
34. The appellant’s right of appeal is found at section 82 of the Nationality, Asylum and Immigration Act 2002 (“the 2002 Act”):
“A person (“P”) may appeal to the Tribunal where –
[….]
(b) the Secretary of State has decided to refuse a human rights claim made by P”
35. Her grounds of appeal are found at section 84(2):
“(2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.”
36. Section 6(1) of the Human Rights Act 1998, in turn, provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention [i.e. ECHR] right.”
37. The jurisdictional reach of the ECHR is limited by Article 1:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. [emphasis added]
38. The appellant and her son are, at present, under the jurisdiction of Denmark. Denmark has obligations towards them under the ECHR. The UK does not.
39. Many applicants for entry clearance do have a right of appeal to the Tribunal on human rights grounds, but that is almost always because the decision they seek to appeal against interferes with their family life with someone who is within the UK’s jurisdiction. See, e.g.: IA & Others v SSHD [2025] EWCA Civ 1516 at [100]. In this case, there has been no challenge to the FtT’s findings that the neither the appellant nor her son had any family life ties with anyone in the UK.
40. Article 8 may be engaged when a settled migrant is prevented from re-entering the UK to resume their pre-existing private life here. See: Ali v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2024] EWCA Civ 372. The general and well-established rule, however, is that the UK does not have any obligation under article 8 to allow a person to enter the UK in order to establish a private life here for the first time: Abbas at [18]. Nor does it have an obligation to grant entry to the parents of British citizen children to facilitate the children’s enjoyment the practical or intangible private life rights that arise from the possession of British citizenship: SD at [72]. The children’s British nationality cannot extend the jurisdictional reach of the ECHR.
41. Mr Mupara’s grounds of appeal and submissions failed to address this fundamental point. Instead, he focussed on the ways that the decision had adverse consequences for aspects of the appellant’s son’s private life: his housing, his education and his identity as a British citizen. The FtT acknowledged these consequences, but the jurisdiction of the FtT (and the UT) are limited by statute. Because the UK does not, at present, have any obligations to the appellant or her son under the ECHR, the FtT was clearly right to dismiss the appeal.

Notice of Decision
The First-tier Tribunal decision dated 15 August 2025 contained no errors of law and is upheld. The appellant’s appeal is dismissed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2026