Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000484
First-tier Tribunal No: HU/01160/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

MB
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Otchie, Counsel, instructed via direct access
For the Respondent: Mr Nappey, Senior Home Office Presenting Officer

Heard at Field House on 11 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. This is an error of law hearing against the decision of the First-tier Tribunal Judge (“the Judge”), promulgated on 8 October 2025. By that decision, the Judge dismissed the appeal against the respondent’s refusal of a human right's claim, made in the context of an application for entry clearance for the appellant, an Eritrean national, to join family a member in the United Kingdom.

2. The application was made on 14 February 2024 and the resulting refusal was issued on 21 May 2024. In refusing the application, the respondent considered paragraph 297 of the Immigration Rules and concluded that whilst it was accepted that the appellant was related as claimed to his father who was present and settled in the United Kingdom, he had failed to demonstrate that he was under the age of 18 and that the sponsor in the UK held sole responsibility for him. It was also considered that there were no serious or compelling family or other reasons for refusing the application and therefore the decision was not disproportionate in all the circumstances.

The Judge’s Decision

3. Both parties were represented before the judge. The sponsor who is the appellant’s father gave evidence. The Judge recorded the appellant’s case from [2] to [5] and the respondent’s case from [6] to [7]. In making findings on the core issue the Judge noted the appellant had failed to provide evidence of his age with the application but since then for the purposes of the appeal had provided evidence which she considered in the round, concluding at [11] therefore that it was “more likely than not that the appellant was over 18 when his application was made”.

4. At [12] it was noted that the appellant’s visa application form stated he was unable to produce an Eritrean passport because if he presented to the Eritrean authorities to obtain a passport “he would be taken for military service”. The Judge noted the appellant claimed to have left Eritrea illegally in September 2023 when he was 13 or 14, however neither the CPIN nor the case law supported the fact that children as young as 13 would be taken for military service. On balance at [13] the judge therefore concluded that this meant the appellant was an age where he would in fact be taken to perform military service.

5. Limited weight was placed on various other documents presented, such as the Cinderella Nursery and Primary School letter dated 27 November 2023, which noted the appellant was in Class 3 of the primary school despite being aged 13/14 on his case. Whilst the Judge noted at [14] the appellant’s explanation that this was because he did not speak English, the Judge took into account that the school had failed to explain the same. The Judge did not find the baptism certificate reliable given the sponsor’s explanation of how his mother had obtained it from the appellant’s mother’s house where she had not herself lived since 2021 after she had disappeared, [16] - [17].

6. At [18] the Judge considered the birth registration certificate lacking detail. Further, it was unclear why the appellant had been able to produce it in May 2025 but not at the time the application was made.

7. At [19] the judge noted that the appellant had provided a document from the Office of the Prime Minister which gave his date of birth as 10 December 2009 but little weight was given to this document, considered in the round with all other evidence provided and the judge did not accept the appellant’s age of under 18 at [20].

8. The judge did not go any further to consider other issues raised in the refusal and dismissed the appeal on the sole ground that she did not believe the appellant was under the age of 18.

Grounds of Appeal

9. The grounds are concise and make the following points.

10. First, the Judge had failed to consider the appellant in his application form had referred to not applying for a passport as he would be taken for national service rather than military service. Further that as a result the Judge failed to properly consider and apply country guidance, namely the judge failed to consider MST and others (national service - risk categories) Eritrea CG [2016] UKUT 443 (IAC), at headnote 3, which highlighted:

“The age limits for national service are likely to remain the same as stated in MO, namely 54 for men, 47 for women, except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For people’s militia the age limits are likely to be 60 for women and 70 for men.”

11. Further that the CPIN on Eritrea national service and illegal exit, version 6.0, September 2021, at 2.4.15, stated that:

“In general, children aged 5 and over may be considered by the government to be approaching national service age and by leaving the country perceived to seek to evade it.”

12. The failure to consider and apply the above evidence was said to materially impugn the Judge’s assessment of the appellant’s age.

13. Second, it was submitted that the judge had failed to make any findings on evidence which was probative of his claimed date of birth, namely the transfer of child custody dated 12 February 2024 from the State of Eritrea, Mansura Sub-Zoba Administration, Gash-Barka Zone, an official document recording his date of birth as 10 December 2009.

The Grant of Permission

14. The First-tier Tribunal refused permission but, on renewal, Upper Tribunal President Lavender J granted permission on 20 April 2026 on ground 1, highlighting that it was arguable what the Judge said at [12] played a significant part in the reasoning leading to the conclusion that the appellant was over 18 when he made his application.

15. Lavender J did not, however, questioned the distinction made in the grounds between “national service” and “military service”, as it appeared from the country guidance in MST that military service was an aspect of national service. He highlighted, however, that [328] of MST suggested that a child over 5 would face difficulties in leaving Eritrea lawfully. It was arguable that the judge had made an error in failing to appreciate the country guidance supported the appellant’s case as to why he did not have a passport, and that an absence of a passport did not indicate that the appellant was older than 13 or 14 when he left Eritrea. Permission was also granted on ground 2, given the grant of permission on ground 1.

The Hearing

16. At the error of law hearing, I received helpful submissions from Mr Otchie and Mr Nappey, all of which are a matter of record.

17. Mr Otchie made an anonymity application at the outset. Whilst his father was not a refugee but rather had sought reunion as a refugee spouse, he placed reliance on the fact that the appellant was a child, together with the fact that there was evidence concerning abandonment, family relationships and personal identity documents.

18. I have balanced the principle of open justice against the appellant's interests and am satisfied that any interference with open justice is limited and justified. The appellant was advanced as a child throughout these proceedings and the evidence concerns his welfare, family circumstances, refugee status in Uganda and personal information of a sensitive nature. In addition, an anonymity order was made in these proceedings. Accordingly, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I maintain the anonymity order.

19. In addition, I noted that the Tribunal received a bundle of authorities together with an appeal skeleton argument on the day of the hearing. Mr Otchie explained there had been a transfer of late instruction via direct access and the documents had been served on 6 August 2026, one day out of time. However, I note that there was no objection from Mr Nappey, who confirmed he had considered the documents and was happy to proceed. I was satisfied that there was no prejudice to the respondent and given the nature of the documents, the appellant’s skeleton largely expanded upon the case law relied upon in the grant of permission while the authorities bundle provided copies of the relevant authorities. In those circumstances, I admitted the documents notwithstanding the procedural breach.

20. As highlighted at the hearing before me, I had before me a composite bundle of 178 pages, together with the recently served appeal skeleton argument and authorities bundle, as well as the respondent's Rule 24 response. Mr Otchie relied upon the appellant's skeleton argument and grounds of appeal and developed the submissions therein. In relation to Ground 1, he highlighted the appellant's background, namely that he claimed a date of birth of 10 December 2009, that his mother had not been involved in his life since 2021, that he had subsequently lived with his paternal grandmother and that he was presently living in Uganda, having been recognised as a refugee there.

21. Turning to the visa application form, Mr Otchie highlighted that the appellant had stated:

"I only have a certificate issued by the Government of Uganda confirming that I am an asylum seeker... I do not have an Eritrean passport because I fled Eritrea without an exit visa due to fear of being forced into national service. I had to make an illegal exit. If I applied for a passport they would take me to fight in national service and I did not want to participate in national service."

22. Mr Otchie submitted that the Judge's findings at [12] proceeded on the basis that a child aged 13 or 14 would not ordinarily be concerned with military service and therefore that the explanation given by the appellant tended to indicate that he was older than claimed. However, he submitted that this conclusion was inconsistent with the background evidence before the Tribunal.

23. In particular, he relied upon MST and the passages identified in the grounds of appeal and by Lavender J. He submitted that the country guidance established that although the general age for national service was 18, younger children could be affected by the national service system and that the evidence did not support the proposition that concerns regarding national service were confined to adults. Reference was made to the headnote in MST together with the relevant passages concerning national service and the treatment of younger persons.

24. Further, Mr Otchie relied upon the discussion in MST concerning lawful and unlawful exit from Eritrea. Referring to paragraph [328], he submitted that only a limited and exhaustive category of persons could ordinarily leave Eritrea lawfully. He referred to the CPIN evidence identifying categories of individuals who would experience difficulties obtaining lawful exit documentation. He submitted that the appellant's explanation for the absence of a passport was therefore consistent with the background evidence and that the Judge was wrong to draw an adverse inference from it.

25. Turning to Ground 2, Mr Otchie submitted that the Judge had failed to engage with material evidence relating to the appellant's age. In particular, he relied upon documentation concerning the transfer of custody of the appellant in Uganda in 2024, together with other documentary evidence contained within the composite bundle, including baptismal material. He submitted that the transfer of custody document was contemporaneous evidence relevant to the appellant's claimed age and that it was not mentioned in the decision. Accordingly, the failure to engage with that evidence constituted a further material error.

26. Mr Nappey relied upon the Rule 24 response and opposed the appeal. In particular, he drew attention to [11] of the First-tier Tribunal's decision, where the Judge stated that the evidence provided by the appellant since his application had been "considered in the round" and that it was "a combination of several pieces of evidence that lead me to the conclusion on the evidence before me that the appellant was over 18 at the date of application". He submitted that this passage provided the context for the findings which followed and demonstrated that the Judge had not reached her conclusion on the basis of any single factor.

27. With reference to Ground 1, Mr Nappey submitted that the findings at [12] concerning military or national service could not be divorced from the remainder of the Judge's assessment. He noted that the appellant had stated in his visa application form that he did not possess a passport because he feared being required to undertake national service. The Judge had observed that there was no indication that children as young as 13 would be taken for military service. Mr Nappey submitted that this was a finding which was open to the Judge on the evidence before her.

28. In that regard, he relied upon the CPIN, in particular paragraph 3.2.4, which indicated that national service was compulsory for Eritrean citizens aged 18 to 40. He submitted that the appellant's expressed concern about being required to undertake national service was capable of supporting the Judge's conclusion that he was older than claimed. Further, the inference drawn at [12] had to be viewed alongside the Judge's wider assessment of the evidence.

29. Mr Nappey highlighted that, following [11], the Judge considered a range of evidence including the school evidence, baptism certificate, birth certificate and asylum-related evidence between [14] and [18]. Accordingly, he submitted that Ground 1 was not made out. In the alternative, even if there was an error in the Judge's reasoning concerning national service, it was not material in light of the Judge's broader assessment of the evidence.

30. Turning to Ground 2, Mr Nappey relied upon Budhathoki v SSHD [2014] UKUT 00341 (IAC) and submitted that a judge is not required to refer expressly to every piece of evidence or every document placed before the Tribunal. Accordingly, the Judge's failure to refer specifically to the transfer of custody documentation did not disclose a material error of law.

31. In relation to disposal, Mr Nappey submitted that, if an error of law were found, the appeal should be remitted to the First-tier Tribunal. He noted that no alternative findings had been made in relation to the issue of sole responsibility.

32. Mr Otchie briefly responded to the respondent's submissions. He referred to the CPIN, in particular paragraphs 3.2.5 and 9.6.2, and submitted that the background evidence demonstrated that, in recent years and particularly in the context of the Tigray conflict, children between the ages of 15 and 18 had also been conscripted into national service. He submitted that this supported the appellant's stated fear of conscription and that the Judge had failed properly to engage with that aspect of the country evidence.

33. Mr Otchie further submitted that the Judge's assessment of the remaining documentary evidence was affected by the erroneous premise adopted in relation to national service. Having begun from that mistaken starting point, the Judge then assessed the other documents through that lens. Accordingly, the error identified in Ground 1 was material to the outcome of the appeal.

34. In relation to disposal, Mr Otchie agreed that, if a material error of law were found, the appeal should be remitted to the First-tier Tribunal, as no findings had been made on the remaining issues. At the end of the hearing, I reserved my decision.

Analysis

35. As emphasised in Volpi v Volpi [2022] EWCA Civ 464 at [2] to [3], findings of fact made by a judge are entitled to considerable respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct legal test, a material misdirection or inadequate reasoning. I therefore approach this appeal with appropriate judicial restraint, bearing in mind that the decision of the First-tier Tribunal must be read fairly and as a whole, that reasons need not be elaborate and that there is no requirement to give reasons for reasons. Nevertheless, having considered the decision in its entirety and in the context of the evidence before the Judge, I am satisfied that it contains a material error of law for the following reasons.

36. In relation to the first ground, the Judge’s reasoning at [12] and [13] proceeded on the basis that the appellant was over the age of 18 having made the presumption based on what was said in his visa application form, against reference made by the Presenting Officer to the CPIN and case law, concluding that there was “no indication that children as young as 13 are taken for military service”. However, I am satisfied having considered the country guidance in MST that the judge failed adequately to engage with the country guidance before reaching those findings.

37. The country guidance of MST at [328] sets out the categories of those who would have no difficulty lawfully exiting Eritrea. The appellant aged 13 or 14 on his account clearly does not fall within those categories. His explanation in the visa application form that he left Eritrea without a passport and by unlawful means was therefore capable of being consistent with the background evidence. Further, his stated fear of being required to undertake national service was not unsupported by the country evidence. In those circumstances, the Judge's conclusion that his explanation tended to indicate that he was older than claimed was not adequately reasoned.

38. In particular, the country guidance in MST and the CPIN evidence demonstrated that the effects of the national service regime could not be viewed as relevant only to adults aged 18 and over. The headnote in MST at [3] recognised that the lower age limit relevant to children was likely to be 5, whilst the December 2025 CPIN records evidence that children between the ages of 15 and 18 have also been conscripted in recent years. That material was capable of supporting the appellant's explanation for his fear of future national service and required consideration before an adverse inference was drawn from it.

39. I am satisfied that the findings at [12] were a material component of the Judge's conclusion that the appellant was over 18 at the date of application. In drawing an adverse inference from the appellant's explanation concerning national service and his lack of a passport, the Judge failed to engage with the relevant country guidance in MST and the CPIN evidence concerning national service and unlawful exit from Eritrea, both of which were capable of supporting that explanation. In those circumstances, the reasoning at [12] is undermined and the error is material. Ground 1 is therefore established.

40. In relation to Ground 2, I am also satisfied that the Judge failed to engage with material evidence that was relevant to the appellant's claimed age. In particular, the bundle contained what appears to be an official document entitled "Transfer of Child Custody", dated 12 February 2024, which records the appellant's date of birth as 10 December 2009 and documents the transfer of his care to his paternal grandmother. That document was capable of supporting the appellant's account and does not appear to have been challenged before the First-tier Tribunal. Whilst a judge is not required to refer to every item of evidence, this was a potentially significant document bearing directly on the central issue in dispute, namely the appellant's age. In the circumstances, the failure to engage with it further undermines the assessment of the evidence as a whole. Ground 2 is therefore also made out.

41. For the reasons outlined above, I am satisfied that the Judge’s decision to dismiss the appeal should be set aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Having therefore considered paragraph 7.2 of the Senior President's Practice Statements and having due regard to what was said in the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and by the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046, I have carefully considered whether to retain the matter for remaking in the Upper Tribunal.

42. I am satisfied, consistent with the submissions made by both representatives on the issue of disposal, that the appropriate course is to remit to the First-tier Tribunal. Given the nature and extent of the fact-finding now required, together with the absence of findings on other material issues including sole responsibility and serious and compelling circumstances, I am satisfied the appropriate course is to remit the appeal to the First-tier Tribunal to be heard afresh by a judge other than the Judge who previously determined the matter. The appeal shall be heard de novo.

Notice of Decision

1. The decision of the First-tier Tribunal dated 8 October 2025 contained material errors of law and is set aside.

2. The matter is remitted to be heard by a different judge of the First-tier Tribunal.

Judge Iqbal

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 October 2026