Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2026-000377
UI-2026-000378
First-tier Tribunal No: HU/55678/2024
HU/55679/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

ROGERIO MANERO ALFERT
ANA DEL ROSARIO CABRERA DIAZ
(NO ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: A. Berry KC instructed by Connaught Law Limited
For the Respondent: K. Khan, Senior Home Office Presenting Officer

Heard at Field House on 29 May 2026

DECISION AND REASONS
1. The Appellants appeal against the decision of a Judge of the First-tier Tribunal (‘Judge’) who, in a decision promulgated on 17 November 2025 (‘Decision’), dismissed their appeal against the Respondent’s decision to refuse their human rights claim.
2. Permission to appeal was refused by the First-tier Tribunal on 12 January 2026.
3. On 13 March 2026, Upper Tribunal Judge O’Callaghan granted the Appellants permission to appeal to the Upper Tribunal.
Anonymity
4. The First-tier Tribunal did not issue an anonymity order. Taking into account the principle of open justice, I see no reason to make an anonymity order.
Background
5. The Appellants are nationals of Venezuela. They are 78 and 72 years old. They currently live in the United Kingdom (‘UK’) with their adult daughter (‘Sponsor’), her husband and their minor children.
6. On 18 May 2022, the First Appellant (Mr Alfert) and the Second Appellant (Ms Diaz) applied for a visit visa. On 7 June 2022 their applications were granted.
7. On 14 August 2022 the Appellants entered the UK. On 9 January 2023, while lawfully resident, they applied for leave to remain, the First Appellant by reference to the Adult Dependent Relative route (which is solely an on-entry route) and outside of the Immigration Rules by reference to Article 8 of the European Convention on Human Rights (‘ECHR’) with the Second Appellant as a dependent spouse. On 1 May 2024 those applications were refused by the Respondent.
8. The Appellants appealed against the Respondent’s decision.
First-tier Tribunal decision
9. The issues before the First-tier Tribunal were first, whether the Appellants enjoyed family life with the Sponsor and her family in the UK and, secondly whether the refusal of leave resulted in ‘unjustifiably harsh consequences’ (at [11]).
10. On the first issue, the Judge found that there was family life between the Appellants and their UK resident family that amounted to the necessary “real committed effective support” (at [24]-[25]). The Judge then considered the Appellants’ claims in relation to their medical needs and the lack of adequate healthcare in Venezuela (at [26]-[33]). The Judge was not satisfied that the treatments the Appellants require are not available in Venezuela, and found that they would likely need to access private treatment (at [33]). The Judge accepted that bank transfers to Venezuela are not available but found that the Appellants had not established that money could not be transferred via third party services. (at [34]).
11. The Judge noted that the Appellants had previously visited their family in the UK and had kept in touch by way of social media and video calls in between visits (at [35]). The Judge found that following the application for leave, the Appellants would not be able to secure visit visas to visit their UK family in the future (at [36]). The Judge noted the Respondent’s concession that the Sponsor could not presently visit Venezuela (at [37]), although that contact could continue by electronic means (at [38]). The Judge observed that the Sponsor’s husband has a mother and grandmother in Venezuela, with whom he had no difficulties in maintaining a relationship (at [39]). In relation to the Sponsor’s children, the Judge accepted that her son had ADHD, that both he and his sister wished for the Appellants to remain in the UK, and that the Appellants assist the children with their homework. The Judge found that a stable family situation is in the children’s best interests, particularly for the Sponsor’s son, given his diagnosis, and that if there were a change to the family unit the Sponsor and her husband would provide appropriate support to mitigate any disruption (at [40]).
12. Taking into account these findings, and noting that it was not disputed that Article 8 was engaged, the Judge then analysed the competing public and individual factors in a balance sheet assessment, by reference to section 117B of the Nationality Immigration and Asylum Act 2002 at [42]-[45].
13. The Judge had regard to the statutory consideration that little weight should be given to a private life established by a person at a time when they are in the UK unlawfully or their immigration status is precarious, and stated that he gave little weight to the Appellants’ private life formed while in the UK (at [46]). The Judge then observed at [47]:
“Considering those factors above if the appellant (sic) were to return to Venezuela, they would find themselves in the same situation as many other elderly couples in that country, but with the advantage of having family abroad who are able to provide financial support through third party money transfers. Although there would be a change to the family unit, any disruption experienced by the children would be mitigated by their parents.“
14. The Judge concluded that the private and family life factors raised by the Appellants did not outweigh the public interest, and the decision did not lead to unjustifiably harsh consequences and did not breach Article 8 ECHR (at [48]).
Permission to appeal to Upper Tribunal
15. The Appellants sought to appeal on the following three grounds:
Ground 1: The Judge’s finding that family life may continue absent permission to remain is arbitrary and perverse. That finding materially flaws the assessment of proportionality in the result (ASA [7(i)]);
Ground 2: The Judge omitted consideration of the affordability of the Sponsor supporting the Appellants were they to be returned to Venezuela (ASA [7(ii)]);
Ground 3: The Judge wrongly considered that the Sponsor’s husband’s contact with his family in Venezuela, as well as the fact that they lived there, were material factors in the balance sheet against the Appellants (ASA [7(iii)]).
16. Permission to appeal was granted on all three grounds.
17. The Respondent did not file a Rule 24 response.
Upper Tribunal hearing and submissions
18. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. The Tribunal had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellants.
19. The Tribunal heard oral submissions from Mr Berry KC for the Appellants, and Ms Khan for the Respondent which have fully been taken into account.
Appellants
Ground 1
20. The Judge’s finding that family life between the Appellants and the Sponsor may continue absent permission to remain was arbitrary and perverse. This materially flawed the assessment of proportionality (ASA [28]).
21. The Appellants are elderly, being aged 78 and 72 years old, and in the late stages of their lives. The Judge found that the Appellants would be unable to visit the UK again (at [36]) and noted it was accepted by the Respondent that the Sponsor could not presently visit Venezuela (at [37]). There was no suggestion that the situation in Venezuela is likely to change any time soon. The Judge effectively made a case-specific finding that the Appellants will not see the Sponsor again if they return to Venezuela (ASA [29]). The Appellants’ elderly age and infirmity due to their various medical conditions required direct consideration by the Judge, as it is as parents/grandparents that their Article 8(1) ECHR family life is engaged. Communication over the internet is no substitute for physical proximity as the Appellants enter their final years. In assessing proportionality for Article 8(2) purposes, the Judge needed to, but did not, squarely confront the consequences of his own findings (at [43]-[45]) (ASA [30]). It is no answer to say that the Appellants and the Sponsor and her family would be able to meet in a third country. This is not canvassed in the Decision, and this point would need to be put to the witnesses as a matter of fairness, to enable findings on the scope of such an option before it could be held against the Appellants (ASA [31]).
22. The Judge is not criticised for using the ‘balance sheet’ approach for Article 8(2) ECHR purposes (at [43]-[45]), as its utility has been recommended at the highest level: see Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, per Lord Thomas at [82]-[84]. However, that is not an end to the Judge’s function. If findings of fact are made that there is family life between the Appellants and their Sponsor and her family, and they cannot visit each other’s countries, in circumstances where the Appellants are elderly the logical consequences of those findings must be addressed, including but not limited to the prospects for physical decline, daily social care needs, social isolation, and what would happen when one of the Appellants dies. The Judge did not address these consequences (ASA [33]). The assessment of proportionality is arbitrary in the result and there is a material error of law (ASA [34]). Further, that error cannot be rectified by reassessing proportionality alone on found facts as, for example, the possibility of third country meetings would need to be explored in evidence. The Appellants take their chances as to the outcome of such exploration (though they may very well press their case as the impracticality of it). However, fairness requires the matter to be properly explored given the Judge’s findings (ASA [35]).
Ground 2
23. The Judge failed to consider a material factor being the affordability of the sponsors supporting the Appellants were they to be returned to Venezuela (ASA [36]).
24. The Judge found that the Appellants live with the Sponsor and her family in the UK, are financially dependent on them for their daily needs, and for some private health care (at [24]). The Judge also found that it had not been shown that third-party transfers were not an option to transfer money to Venezuela (at [34]), although there was no positive evidence that such transfers were possible. However, the Judge did not address whether the Sponsor could afford to support the Appellants in Venezuela [ASA [37]).
25. The Sponsor and her husband provide the Appellants with benefits in kind (food, accommodation, essential living needs, etc.) within their home and from their household budget, with private health insurance for the Appellants being the major additional cash expenditure. The Judge did not consider whether, if the Appellants were to return to Venezuela, and money could be transferred to them by the Sponsor to meet the Appellants’ needs, whether such support would be affordable for the Sponsor. Support of the Appellants in Venezuela would require the Sponsor to transfer cash to the Appellants rather than providing benefits in kind to meet their needs, as she has done since they have resided in the UK. (ASA [38]).
26. The Judge did not undertake an assessment of the Appellants’ means, the costs they would face on return, and the ability of the Sponsor and her husband to meet these costs (ASA [39]). The Judge made no findings on the long-term affordability of the support, including the evidence as to the cost of private healthcare in Venezuela. The evidence of the financial circumstances of the Sponsor and her husband does not indicate that they are high earners for whom affordability is not an issue. To the contrary, the evidence shows they earn modestly and that funds are stretched (ASA [40]).
27. The Judge needed to decide the issue of the Sponsor’s ability to afford to support the Appellants in Venezuela as part of the balance sheet exercise when striking the balance for Article 8(2) ECHR purposes. He did not do so and that is a material error or law (ASA [41].)
28. The Appellants take their chances as to the outcome of the exploration of affordability (though they may very well press their case as to lack of resources). However, fairness requires the matter to be properly explored given the Judge’s findings (ASA [42]).
Ground 3
29. The Judge wrongly considered in the balance sheet against the Appellants that the Sponsor’s husband did not experience difficulties maintaining contact with his family in Venezuela. This is an immaterial consideration (ASA [43]).
30. The Judge’s finding at [43(c)] amounts to no more than saying that “there are some other people I know in Venezuela with whom I am in contact.” That is not enough for Article 8(2) ECHR assessment purposes. It would only be a relevant comparison if the following factors were also present: (i) the Judge had found that there was ‘family life’ in the Article 8(1) ECHR sense, that is real committed, effective, support between the Sponsor’s husband and his adult relatives in Venezuela (in the application for the test for family life between adult family members); (ii) that meaningful family life had continued via electronic means despite their separation; and (iii) the Sponsor’s husband’s Venezuelan family were impecunious and were supported from the UK via actual transfer of affordable cash sums by him (ASA [44]).
31. None of these matters were addressed by the Judge. Absent such consideration there is no material value in the comparison. Nor can these matters reasonably be added to the public interest side of the balance sheet (at [43(c)]). Thus, there is a material error of law (ASA [45]).
32. Taken separately and together, these grounds establish material errors of law such that the Decision requires reconsideration both in relation to the interpretation and application of Article 8, and as regards the necessary findings of fact and inferences to be drawn on material issues (ASA [46]). Further findings of fact need to be made prior to a reassessment of both the strength of the family life and/or private life interests in issue under Article 8(1) ECHR and proportionality under Article 8(2) ECHR (ASA [47]).
Respondent
Ground 1
33. The threshold for perversity is high. The Judge clearly set out at [11] the issues that were in dispute, namely whether the Appellants enjoy a family life with the Sponsor and her family in the UK, and whether the decision results in unjustifiably harsh consequences.
34. The Judge’s finding that there is family life between the Appellants and the Sponsor was a balanced finding based on the evidence that was before the Tribunal. It was open to the Judge to find that family life can continue through electronic means if the Appellants were to return to Venezuela (at [38]). The Judge reached this conclusion by looking at the evidence as a whole. The evidence before the Tribunal was that the Appellants and the Sponsor had previously visited the UK, they had stayed in contact via social media and video calls, the Sponsor’s husband is in contact with his family in Venezuela, and the needs of the Appellants were not something that would need to be met on a daily basis (at [37]). The Judge acknowledged there was no real dispute between the parties in relation to the Appellants’ medical conditions at [26], and found that these conditions, individually or combined, did not require the Appellants to have their personal needs met on a day-to-day basis (at [27]). When looking at the Decision holistically, it was open to the Judge to make these findings based on the medical evidence and the evidence of the Sponsor in terms of the contact the Appellants have had with the Sponsor when in Venezuela. The Article 8 proportionally assessment was appropriate when looking at what factors tipped in the Respondent’s favour. The Judge found that the public interest outweighed the Appellants’ right to their family life. This finding is not arbitrary or perverse, and it was open to the Judge to make it.
Ground 2
35. It has not been challenged that there was no evidence before the Judge that third party money transfers cannot take place. The Appellants bear the onus of proof to demonstrate that such transfers would not be possible. The matter of the weight that the Judge applied was pre-eminently a matter for him: Volpi & Anor v Volpi [2022] EWCA Civ 464; [2022] 4 W.L.R. 48 (‘Volpi’) at [2(iv)]. The absence of this evidence is what the Judge noted at [34]. The witness statement of the Sponsor does not indicate that financial support cannot be provided, instead the difficulties of transferring money are highlighted. The issue of affordability was addressed by the Judge finding that there was no supporting evidence. Further, it was not material to the overall consideration given that the Judge acknowledged at [33] the difficulties in the public and private health care sector but found on balance that the treatment the Appellants require would be available to them on return.
36. The Respondent referred to MN (Vietnam) v Secretary of State for the Home Department [2026] EWCA Civ 485 (‘MN Vietnam’) at [36] and [46] and submitted that the Decision should be read as a whole and in context. It is well-established that judicial caution and restraint is required when deciding whether to set aside the decision of a specialist fact-finding tribunal. The Decision is to be read as a whole, and regard had to the various factors that the Judge addressed when reaching the conclusion that it was proportionate to interfere with the Appellants’ family life. This can be seen at [43] of the Decision.
Ground 3
37. The Sponsor’s husband’s contact with his family in Venezuela was a relevant consideration. His evidence was that he has no difficulty in maintaining a relationship with his family. This is the finding that the Judge made in relation to the Sponsor. Given that the Sponsor claims that both she and her husband support the Appellants, her husband’s evidence is a relevant consideration and is not immaterial. The weight the Judge attached to the evidence is a matter for him: Volpi. Even if it is found that the Judge did place weight on an immaterial matter, this is not material to the outcome because the Judge found for a range of reasons and based on a number of factors that the interference is proportionate.
Disposal
38. Both parties agreed that the matter should be retained in the Upper Tribunal.
Decision on error of law
39. Having carefully considered the oral submissions made to the Tribunal and the relevant parts of the Decision, I have concluded for the reasons that follow that the Decision does not contain a material error of law and shall stand.
40. Before the Tribunal can set aside a decision against which an appeal is brought, it must identify an error on a point of law. In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 (‘R (Iran)’), the Court of Appeal at [9] gave general guidance on the most frequently encountered errors of law which it categorised as follows:
(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings;
(vii) making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.’
41. In E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] INLR 264, Carnwath LJ at [42] explained that the substantive grounds for intervention on appeal and judicial review are the same:
“[I]n spite of the differences in history and wording, the various procedures have evolved to the point where it has become a generally safe working rule that the substantive grounds for intervention are identical … The main practical dividing line is between appeals (or review procedures) on both fact and law, and those confined to law. The latter are treated as encompassing the traditional judicial review grounds of excess of power, irrationality, and procedural irregularity.”
42. When considering whether the Judge made a material error of law, I remind myself of the limited circumstances in which an appellate tribunal may interfere with findings of fact and credibility by the First-tier Judge. In Volpi Lewison LJ, with whom Males and Snowden LJJ agreed, explained at [2] that interference with findings of fact and credibility is appropriate only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’. Their Lordships stated:
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i. An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii. The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii. An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv. The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v. An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi. Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
43. The Court of Appeal has recognised that the First-tier Tribunal is a specialist fact-finding tribunal, and the Upper Tribunal is required to exercise judicial restraint in its oversight of its reasoning. In Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201; [2024] 1 W.L.R. 4055 (‘Ullah’) Green LJ, with whom Lewison and Andrews LJJ agreed, stated at [26]:
“Sections 11 and 12 TCEA 2007 Act restricts the UT’s jurisdiction to errors of law. It is settled that:
(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].”
44. These principles were recently noted by Bean LJ in Kapikanya v Secretary of State for the Home Department [2025] EWCA Civ 987 at [20]-[21].
45. In MN (Vietnam) the Court of Appeal set out the principles which should guide the analysis of whether reasons are legally adequate. Dove LJ drew together the leading authorities at [34]-[36]:
“The question which then arises is by what standard those reasons are to be judged in order to determine whether or not they are legally adequate. Whilst given in a different public law context, the observations of Lord Brown of Eaton under Heywood in South Bucks County Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36 provide an important statement of principle applicable in the current context:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
Accompanying these principles, it is also necessary to observe that the decision, in this case the FtTIAC determination, must be read as a whole and in context. Part of that context is that examining the determination’s reasons should be approached and undertaken purposefully, with the object of obtaining an understanding of the decision and its basis. It should not be read or construed in a manner more appropriate to a contract or statute. It requires what Lord Bingham MR described as a “straightforward down to earth reading” of the determination which seeks to identify whether there is “room for genuine as opposed to forensic doubt” as to what has been decided and why (see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263).
This approach to the standard of reasons required as a matter of law can be set in the general understanding of approaches to appeals in respect of tribunals within the Immigration and Asylum Chamber provided by Lord Hamblen at paragraph 72 of HA (Iraq) v SSHD [2022] 1 WLR 3784; [2022] UKSC 22:
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probably that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”
46. These principles are relevant to deciding whether the Judge erred in law in reaching his conclusions in the Decision.
Ground 1
47. The threshold for establishing perversity amounting to an error of law (R (Iran) at [9(i)]) is very high. It can be established if the ‘decision is one to which no reasonable decision maker, properly instructing himself (sic) on the law could have come on the evidence before him (sic)’: Miftari v Secretary of State for the Home Department [2005] EWCA Civ 481 at [36] per Keene LJ.
48. In R (Iran) the Court of Appeal observed at [11]:
“It may be helpful to comment quite briefly on three matters first of all. It is well known that ‘perversity’ represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.”
49. In RP (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 825, Sedley LJ at [17] cautioned that perversity ‘is a question which has always to be scrupulously disentangled from the question whether the second decision maker simply entertains a strong disagreement with the first’.
50. Having regard to the very high threshold that must be met for a finding of perversity, and the principles outlined in Volpi, I am not satisfied that the Judge’s finding that family life between the Appellants and the Sponsor may continue absent permission to remain was arbitrary and perverse and that this materially flawed the assessment of proportionality. Based on the evidence before the Tribunal it is not a finding that ‘no reasonable judge could have reached’: Volpi at [2(ii)]. This ground amounts to a disagreement with a factual assessment by the Judge rather than identification of a legal error. It follows that I am not satisfied that Ground 1 is made out.
Ground 2
51. The evidence before the Judge was that the Sponsor and her husband had not explored sending money to Venezuela by means other than bank transfer, and there was no evidence to support their claims that it would be difficult or impossible to use a third-party transfer service to transfer funds (at [34]). The affordability of the Sponsor and her husband supporting the Appellants if they return to Venezuela, was not raised in the Sponsor’s statement which canvasses only the difficulties associated with transferring money to Venezuela. It relevantly states:
Sending financial support to Venezuela is incredibly challenging. Due to stringent currency controls, sending money through regular channels, like bank transfers or apps such as Wise, is impossible. Any attempt to send funds requires the use of third-party services, which are not only risky but also incur steep fees which would only add to our financial strain here in the UK. These costs are wasted money, making it even harder for us to provide the help my parents desperately need.
52. The Judge was entitled to make a finding that the Sponsor would not be prevented from providing financial support to the Appellants in Venezuela by way of means other than bank transfers, as there was no evidence that third-party transfers were not an option. It was a matter for the Judge to determine the weight to be attached to this finding of fact in the proportionality assessment: Volpi. The Judge’s reasoning clearly took into account the individual and public interest factors in the round before a conclusion was reached. The reasoning cannot be said to be inadequate, and the conclusion was rationally open to the Judge: Volpi. As the Court of Appeal made clear in Ullah and MN (Vietnam), appellate restraint must be exercised in this context. The assessment of proportionality is a fact-sensitive evaluative judgment for the First-tier Tribunal. The question is not whether another Judge may have struck the balance differently, but whether the conclusion reached was one that was reasonably open to the Judge on the evidence, and on the facts as found. It follows that I am not satisfied that Ground 2 is made out.
Ground 3
53. The Sponsor’s husband’s evidence that he has maintained a relationship with his grandmother and mother who reside in Venezuela (at [39]) was a factor which the Judge found weighed against the Appellants in conducting the proportionality assessment (at [43(c)]. Even if this was an immaterial consideration, any resulting error must have been material to the outcome. The Judge found that the interference with the Appellant’s family life was proportionate having considered a range of private and family factors that weighed in the Appellants’ favour and other factors that weighed against the Appellants, including the Sponsor’s husband’s ongoing relationship with his relatives in Venezuela and the public interest in immigration control. I am satisfied that if by giving weight to an immaterial matter the Judge made an error of law, the error was not material to the outcome as the conclusion would have been the same based on the other factors to which the Judge attached weight in conducting the proportionality assessment. It follows that I am not satisfied that Ground 3 is made out.
Notice of Decision
54. The Decision of the First-tier Tribunal promulgated on 17 November 2025 which had dismissed the Appellants’ appeal did not involve the making of a material error of law and shall stand.

Linda J. Kirk

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber