Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000681
First-tier Tribunal No: HU/58945/2024
LH/07380/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7 May 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

Entry Clearance Officer
Appellant
and

Elena Bezrukova
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms M Knorr, counsel instructed by Birnberg Peirce LLP
For the Respondent: Mr J Holborn, counsel instructed by GLD

Heard at Field House on 1 May 2026

DECISION AND REASONS

1. I shall refer to the parties as they were before the First-tier Tribunal, while being mindful that this is the Entry Clearance Officer’s appeal. The appellant is a 48 year old Russian citizen who lived in Ukraine until driven by war to relocate to Poland. She applied on 16 March 2022 for entry clearance to join her sister, Tatiana Bezrukova, a British citizen (“the sponsor”). The respondent refused the application on 20 November 2023 and the appeal against that decision was allowed by the First-tier Tribunal (“FTT”) on 9 August 2025.
2. The respondent sought permission to appeal on five grounds, being that the FTT erred in: (1) finding that the FTT had jurisdiction to decide the appeal; (2) finding that there was family life between the appellant and sponsor such as to engage Article 8(1) ECHR; (3) finding that refusing the appellant entry to the United Kingdom disproportionately interfered with that family life; (4) the approach to the medical evidence; and (5) the relevance afforded to the finding that the appellant would meet the requirements of the Ukrainian resettlement scheme but for lacking Ukrainian citizenship. The FTT granted permission on ground 2 only. On the respondent’s renewed application, Upper Tribunal Judge Norton-Taylor held that the remaining grounds were without arguable merit and refused permission.
The FTT’s decision on Article 8(1)
3. The FTT Judge gave a detailed record of the background facts and resolved such matters as were in issue between the parties. She then set out the following self-direction:
28. The authorities on this issue are well known. The key points are as follows:
(a) Whether or not family life exists is a question of fact, to be determined having considered all the circumstances of the case. It is for the Appellant to show that Article 8(1) ECHR is engaged and the factual circumstances on which she relies.
(b) There is no presumption that relationships between adults acquire the protection of Article 8 without evidence of something more than normal emotional ties. It is necessary to show real or committed or effective support. The relevant factors “…include identifying the near relatives of the Appellant, the nature of the links between them, the age of the Appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life” Kugathas v Secretary of State for the Home Department [2003] EWCA CIV 31.
(c) What may constitute an extant family life may fall well short of what constitutes dependency: Patel v. Entry Clearance Officer, Mumbai [2010] EWCA Civ 17.
(d) The potential for the development of family life is relevant to whether family life already exists, but some degree of family life must already be established: Singh v Entry Clearance Officer [2004] EWCA Civ 1075.
(e) There is no requirement for exceptionality, but something more than love and affection is required: Singh v Secretary of State for the Home Department [2015] EWCA Civ 630.
4. I agree with Mr Holborn that this self-direction cannot survive the subsequent judgment of the Court of Appeal in IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516:
10. … the consistent jurisprudence of the European Court of Human Rights (the ECtHR) has been that "family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate "additional elements of dependence, involving more than the normal emotional ties"" (see Kumari v. The Netherlands 44051/20, 10 December 2024 (Kumari) at [35], and Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 (Beoku-Betts) at [39]). The FTT did not apply that test, but instead asked itself whether the sponsor had provided "real, effective or committed support" to his brother and the family (see [18] and [25] of the FTT decision). The real, effective or committed support test is lower than the additional elements of dependence test. Applying the proper test, neither the brother nor his family had shown that they had family life with the sponsor for the purposes of article 8(1).
5. It is clear that the Judge asked herself the same question as did the FTT in IA. In particular, placing reliance upon Patel v. Entry Clearance Officer, Mumbai [2010] EWCA Civ 17 for the proposition that “an extant family life may fall well short of what constitutes dependency” was specifically disapproved by the Court:
72. The facts of Patel are accepted by the family to be far removed from this case. Nonetheless, they rely upon it for what Sedley LJ said at [14] about family life. He said that “what may constitute an extant family life [between parents and adult children] falls well short of what constitutes dependency”. We do not think that this dictum sought to alter in any way the long-established jurisprudence.
6. I agree with Ms Knorr that the decision should remain undisturbed if its reasoning is nonetheless consistent with the law as stated in IA, but it is clear that the Judge measured the facts against a “real, effective or committed support” test that did not include “additional elements of dependence”. The core analysis of Article 8(1) is at [34], which concludes:
34. … In my judgment the impact upon both the Appellant and the Sponsor of the outbreak of war in Ukraine and the upheaval in the Appellant’s life and mental health as a result of fleeing to Poland has significantly deepened their bond as the Sponsor described in her evidence. That this is the case is in my judgment apparent from the adverse impact of their separation upon the mental health of both. In the context of the trauma that the Appellant has experienced, their particular vulnerabilities identified above, their poor mental health, the debilitating effect of the war upon the Appellant and her isolation in Poland, their daily supportive contact despite being in different countries and the financial support that the Sponsor provides for the Appellant, I find that their relationship is one where each provides the other with real, committed and effective support such that Article 8 is engaged
7. The Judge centres her analysis on the provision of support, and neither in the above extract or elsewhere is dependence mentioned. I have no doubt that if the Judge had taken dependence into account then she would have said so; the decision is impressively reasoned and expressed with commendable clarity, precision and structure.
8. Mr Holborn argued that no facts were found by the Judge that could stand as additional elements of dependence according to the test described in IA, so the decision should accordingly be set aside and re-made by the appeal being dismissed. I reject that argument. The reason why no findings were made on dependence is that without the benefit of the guidance IA this was not thought necessary. I also disagree that the evidence is manifestly incapable of establishing the necessary additional elements of dependence in any event – whether it does so must be decided as part of the holistic fact-sensitive assessment required.
9. Ms Knorr took me on a tour of the underlying evidence in an attempt to show that the Judge had implicitly accepted the parts of it that relate to dependence and the decision could be upheld on that basis. While some parts of the evidence may, or may not, be capable of establishing dependence, they were not evaluated on that basis.
10. For the above reasons, an error of law is established. The FtT’s conclusion on family life, and the weight afforded to it in the subsequent proportionality assessment, must be set aside.
11. I should end my consideration by making clear that the Judge cannot be personally criticised for applying the law as it had often been expressed by courts and tribunals prior to IA. Indeed, the Court of Appeal had to disapprove dicta in its own previous judgments as having “lost sight” of the correct test: see at [77], [79] and [84], and in similar terms at [72].
12. After pronouncing my decision at the hearing, I canvassed with the parties whether the appeal should be remitted to the same Judge to be re-decided in accordance with the principles set out in IA. Neither could identify any principled objection and accepted that this could achieve the fastest and fairest way for the parties to obtain a final outcome on an application that, despite the continuing consequences of separation, is now over four years old. While such disposal is less often indicated in this jurisdiction than others, it may plainly be appropriate in some circumstances: see, for example, SSHD v Kapp [2025] EWCA Civ 1203 at [103] and IA at [130]. Given the evaluative and fact-sensitive nature of Article 8, and that my subsequent enquiries with the FtT have confirmed that the Judge can hear the appeal within a reasonable time, I consider this to be the case here.
13. The Judge’s findings of fact are all preserved, and it will be for her to decide the extent of any further necessary fact-finding. Reconsideration of Article 8(1) should not be taken as an opportunity to re-argue points already decided against the respondent and made final by the refusal decision of UTJ Norton-Taylor.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal makes the following directions pursuant to section 12(3)(b) of the Tribunal, Courts & Enforcement Act 2007:
a. All findings of fact are preserved.
b. The remitted appeal shall be heard by Judge Neave, unless the Resident Judge at Hatton Cross considers that she cannot do so within a reasonable time and transfers the case to another judge.
c. The appeal shall be heard at Hatton Cross on 20 May 2026 at 10am;
d. The parties shall provide any further evidence by 4pm on 15 May 2026, by such means as the First-tier Tribunal may direct.
e. The First-tier Tribunal may vary, set aside or supplement the above directions.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 May 2026