Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2026-000500
UI-2026-000502

First-tier Tribunal Nos: HU/01821/2024
HU/01841/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th April 2026

Before

DEPUTY UPPER TRIBUNAL I. LEWIS

Between

ENTRY CLEARANCE OFFICER
Appellant
and

(1) SAMRAWIT TESFAY
(2) YAFET TESFAY
(NO ANONYMITY ORDERS MADE)
Respondents

Representation:
For the Appellant: Ms A Nolan, Senior Home Office Presenting Officer
For the Respondents: Mr R Solomon of Counsel, instructed by Ernst Law Solicitors

Heard at Field House on 10 April 2026

DECISION AND REASONS

1. These are linked appeals against the decisions of First Tier Tribunal Judge Degirmenci, allowing the appeals of Samrawit Tesfay and Yafet Tesfay against decisions to refuse them entry clearance.

2. Although before me the Entry Clearance Officer is the appellant, and the Tesfay siblings are the respondents, for the sake consistency with the proceedings before the First Tier Tribunal, I shall hereafter refer to the ECO as the ‘Respondent’ and the Tesfay siblings as the ‘Appellants’.

3. The Appellants are nationals of Ethiopia, born on 30 November 2007 and 26 November 2006 respectively. They are sister and brother. They made applications for entry clearance when both still minors, on 1 July 2024. Those applications were sponsored by a paternal uncle, Mr Fasil Tesfay (date of birth 27 January 1974), a British citizen living in the United Kingdom (‘the Sponsor’).

4. Both applications were refused by the Respondent on 2 September 2024. Although a number of matters were raised in the refusal, all those matters were resolved in favour of the Appellants before the First Tier Tribunal. The focus of the Respondent's challenge before the Upper Tribunal relates only to one such issue. In the circumstances, it is unnecessary for me to rehearse the full details of the refusals; it is approp simply to focus on the area of the challenge.

5. By way of brief background, the mother of the Appellants had died in December 2022 and the father in September 2023. Prior to the deaths of the parents, the Sponsor had assumed some financial responsibility for the children, being in a better position to do so because of his relative economic advantage and the difficulties that the parents had arising from their illnesses. Immediately following the deaths of the children, there was some involvement by a woman described as a paternal aunt, although in fact a significantly older half-sibling of the Appellants. That assistance, guidance, and support came to an end when she relocated to Italy. Otherwise, the Sponsor made arrangements for the accommodation of the Appellants, and a neighbour looked in to check on them.

6. The Sponsor also undertook an adoptive process in Ethiopia. In the event, however, that was not a procedure recognised in the United Kingdom in such a way to avail the Appellants by reference to Appendix: Adoption of the Immigration Rules. Accordingly the focus was essentially on paragraph 297 of the Immigration Rules, with particular reference to paragraph 297(i)(f) - and it is in this respect that the challenge arises.

7. For completeness, the relevant wording in paragraph 297(i)(f) is:

"One parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child's care."

8. There are of course other requirements within paragraph 297, but, as said previously, the First-tier Tribunal Judge was satisfied those requirements were met, and they are not the subject of challenge before the Upper Tribunal.

9. The favourable conclusion in respect of the Immigration Rules was held by the Judge to be a complete answer to any issue in respect of proportionality under Article 8, it being found by the Judge that family life existed between the Appellants and their uncle.

10. Before me, Ms Nolan recognised and acknowledged that any challenge in respect of ‘proportionality’ is essentially contingent upon the success of the challenge to the Judge's findings under the Rules.

11. The Respondent's challenge relies significantly on the decision of Mundeba (s.55 and para 297(i)(f)) [2013] UKUT 00088 (IAC). In particular, the Respondent emphasises paragraph (iv) of the headnote, which is in these terms:

"Family considerations require an evaluation of the child's welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child's life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances for the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:

(a) there is evidence of neglect or abuse;

(b) there are unmet needs that should be catered for;

(c) there are stable arrangements for the child's physical care;

The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission."

12. Ms Nolan realistically accepts that the items listed at sub-paragraphs (a), (b), and (c) are not specified as absolute requirements but are parts of the matters in respect of which there should be appropriate inquiry. That is to say, it is not a prerequisite of the Rule that, for example, an applicant be able to establish as a matter of fact that there is either neglect or abuse.

13. The Respondent's Grounds - which have been briefly expanded upon by Ms Nolan before me - cite by way of example a passage from paragraph 32 of the Decision of the First Tier Tribunal The Grounds at paragraphs 1(d) and (e) are in these terms:

"(d) For example, at [32] of the determination the FTTJ finds the following.

“I therefore accept that the children are living in an apartment arranged by the sponsor in the same complex as Mr Bedada and that Mr Bedada and his wife help care for them until the sponsor is able to bring them to the UK.”

(e) It is submitted that the FTTJ has failed to identify any evidence that the Appellants are subject to neglect or abuse, instead finding that the Appellants are currently residing in an apartment paid for by the sponsor with care provided by Mr Bedada and his wife. There is no finding that the Appellants are subject to neglect or abuse or that they have any unmet needs. Additionally, there is no finding that there are not stable arrangements for the Appellants' physical health. As a result, it is submitted that the FTTJ has materially erred in law by failing to undertake the enquiries outlined in Mundeba."

14. I have noted above that Ms Nolan accepted that the references at (a), (b), and (c) of the paragraph (iv) of headnote in Mundeba did not constitute absolute requirements. It does seem to me that there is an element of the pleading in the Grounds that appears to elevate the reference to neglect or abuse to a requirement. Be that as it may, Ms Nolan has not pursued such a point before me, but has sought to emphasise a submission to the effect that the nature of the Judge's enquiry fell short of the benchmark that might reasonably be required to satisfy the requirements of the Rule - that the Judge has failed in making a full and proper enquiry within the guidance of Mundeba.

15. I note one further passage in Mundeba - at paragraph 34 it is said that "the analysis is one of degree and kind". As with all cases of this nature, any analysis will be fact sensitive and very much depend upon the particular circumstances of the case.

16. In this particular appeal, the key findings of the First Tier Tribunal Judge seem to me to be as follows:

(i) That the parents died in December 2022 and September 2023.

(ii) At paragraph 22 of the decision, "I also find that the sponsor has been instrumental in the upbringing of the appellants since his brother became ill and that following his brother's death that he took complete financial, practical and emotional responsibilities for the appellants". In this context and generally, it should be noted that the First Tier Tribunal judge “found the sponsor to be an entirely credible witness”.

(iii) At paragraph 23, the Judge found that the sponsor had "obtained an Adoption Contract for the care of the appellants".

(iv) At paragraph 26, the Judge, after a number of paragraphs of analysis of the evidence and the submissions of the parties, made findings in respect of the living arrangements of the children since the time of their parents' deaths. This is perhaps summarised best in the following passage from the end of paragraph 26: "In particular, [the Sponsor] explained that when his brother died, the children were still living in the family home. However, he moved them to another apartment in the same area where the rent was more affordable. The children lived alone. However, their aunt would come and stay with them and make sure they were okay. He also asked his friend, Thomas Bedada, and his wife, Ngisti, to help look after them. This was under the sponsor's instruction."

(v) Further reference to the living arrangements is made at paragraph 32. Indeed, it is this that is quoted in the Respondent's grounds of appeal. I repeat it again here: "I therefore accept that the children are living in an apartment arranged by the sponsor in the same complex as Mr Bedada, and that Mr Bedarda and his wife help care for them until the sponsor is able to bring them into the UK."

(vi) The Judge also found that the aunt had left. This is explored at paragraph 33, the opening and final sentences of which are in these terms: "I accept that the aunt has left Ethiopia and has gone to Italy. … I accept the sponsor's evidence that the aunt is no longer involved in the care of the appellants."

17. Those matters were brought together and taken forward at paragraph 35 of the decision. The first sentence of that paragraph recognises, correctly, that mere financial support will not satisfy the requirements of ‘serious and compelling family or considerations which would make exclusion of the children undesirable’. However, the Judge goes on to say this:

"However, I take into consideration that at the date of application the appellants were children, aged 16 and 17, and that they were living alone with no parents, with Ms Gesese [the ‘aunt’] and their Mr and Mrs Bedada looking in on them. I take into consideration that they did not have an adult relative living with them to provide them with the care and love that comes with such a relationship. I take into consideration that the sponsor adopted the appellants according to Ethiopian law, and I accept that he took responsibility for their care. This included not only financially supporting them, but also finding them accommodation and making arrangements for adults to check in on and help care for them. I find that he stepped in as a parent. I find that they have a strong family life as a result. I accept that the arrangements for others to help the appellants were only temporary, with Ms Gesese travelling to Italy and Mr Bedada confirming that he agreed to assist on a temporary basis until the sponsor could arrange for the appellants to join him in the UK."

18. Paragraph 36 is in these terms:

"I take into consideration that the appellants were left in a precarious and dangerous situation as a result of their parents' deaths. The claim that the first appellant was kidnapped from school and held for ransom and that the second appellant was attacked were not challenged or disputed by [the Respondent’s Presenting Officer]."

19. The finding at paragraph 36 is not the subject of challenge in the grounds before the Upper Tribunal. Although Ms Nolan, when invited to address that paragraph, directed my attention to the materials in the bundle before the First Tier Tribunal that related to these incidents and, in substance invited me to downplay such matters, it seems to me that there is no real challenge as a matter of error of law in the First Tier Tribunal judge characterising the children's situations in Ethiopia as ‘precarious and dangerous’.

20. Paragraph 37 is, in part, in these terms:

"Whilst the sponsor has been able to maintain communication with the appellants by regular visits and telephone/digital communication, this is absolutely no substitute for the in-person relationship that children need with their parent or, as in this case, adopted parent/guardian."

21. These matters, particularly the summaries of paragraphs 35 to 37, inform the favourable conclusion at paragraph 38:

"I therefore find that at date of application there were serious and compelling family considerations in the appellants’ cases and that it was undesirable to exclude them from entering to the UK and that paragraph 297(f) of the rules is met."

22. In my judgement, the evaluation of the First Tier Tribunal Judge of the particular evidence and circumstances of the Appellants in this case was in accordance with the requirement to consider matters as a matter of degree and kind. Moreover, and more particularly, such assessment encompasses an evaluation of the children's welfare, including their emotional needs. The focus of the First Tier Tribunal judge's assessment was on the circumstances of the children, and engaged with the matters raised against them by the Respondent.

23. Whilst immediate material needs were being met, financed by the Sponsor, the children did not live with an adult. The input of the aunt proved only temporary, and the Bedadas seemingly only undertook a role on the understanding it was similarly to be temporary. The circumstances of the children were sustainably characterised as precarious and dangerous. Further, the judge particularly emphasised that "an in-person relationship that children need with their parent or… parent/guardian" was missing.

24. Nothing in any of that analysis, in my judgement, contravenes or falls short of the exercise recommended in Mundeba. I find that the judge has made sustainable findings of facts which in themselves are not challenged and has taken those findings of fact forward into a sustainably reasoned evaluation of the requirements of the Rule.

25. In all such circumstances, I find that there is no error of law as argued by the Respondent, and the decision of the First Tier Tribunal in both appeals is to be upheld.

Notice of Decision

26. The decisions of the First-tier Tribunal contain no errors of law and stand accordingly.

27. The challenge of the Entry Clearance Officer is dismissed. Both appeals remain allowed.

I. Lewis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 April 2026