Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000830
UI-2026-000831, UI-2026-000832

First-tier Tribunal No: HU/65382/2024, HU/65378/2024, HU/65381/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10th June 2026

Before

UPPER TRIBUNAL JUDGE LANE
DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

(MISS) KAELA KISAKYE NAKITTO (FIRST APPELLANT)

(MISS) ZELENA CORTILDA NAMUGENYI (SECOND APPELLANT)

(MR) JOSHUA TRENT IRIGE (THIRD APPELLANT)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kasusula, Solicitor, Kas & Co, Solicitors
For the Respondent: Ms Karini, Senior Home Office Presenting Officer

Heard at Edinburgh on 20 May 2026

DECISION AND REASONS

Introduction & Background

1. The appellants are citizens of Uganda. The appellants made an application for entry clearance to come into the UK under Family Reunion (Protection) under the Immigration Rules (“the Rules”). The claims were made on 11th March, 2024. Their applications were refused (all on the same basis) by the respondent on 1st November, 2024 on the ground that the Rules were not met and that there were no exceptional circumstances.

2. The sponsor and his wife had cared for the appellants in Uganda prior to both the sponsor and his wife coming to the United Kingdom in 2021. The sponsor and his wife were subsequently granted asylum in the United Kingdom.

3. The appellants appealed to the First Tier Tribunal (“FtT”) against the decision of the respondent to refuse their applications. The appeals were on the grounds that the respondent’s decision was an infringement of the right to family life under Article 8 of the European Convention on Human Rights (“ECHR”). By a decision dated 23 November 2025 Judge Clapham (“the Judge”) dismissed the appellants appeals (“the FtT Decision”). The appeals by the appellants were dismissed on the basis that the Judge did not accept that family life under Article 8 ECHR had been established.

4. On 22 February 2026, the appellants were granted leave to appeal against the FtT Decision.

Error of Law

5. The appellants in their grounds of appeal set out nine separate grounds of appeal. At the outset of the hearing, we notified the parties that our preliminary view was that there was an arguable case that in light of the decision of the Cout of Appeal in IA and Others -v- SSHD [2025] EWCA Civ 1516 there was an error of law in that the Judge, at paragraph 37 of the FtT Decision, found that there was no family life under Article 8 ECHR on the basis that the appellants had not been formally adopted. The Judge stated:-

I can only deal with the matters as they stand now and as matters stand now there is no formal adoption order and there is no documentation to confirm that the children are free for adoption. While Article 8 is concerned with respect for family life there is no documentation to show that these children are in any formal sense part of the family of the Sponsor. I see no reason why the matter cannot be revisited at a later stage once formal processes have been completed. The matter would have been entirely different if the children had been formally adopted and had adoption certificates showing the Sponsor as adoptive parents.

6. The approach by the Judge was arguably contrary to the approach set out in IA and Others where, at paragraph 137 of that decision, the Court of Appeal states –

The evaluation of whether family life exists is a fact-sensitive exercise where many factors may be relevant including financial support, physical and psychological health and a combination of other factors.

7. Whilst we accept that IA and Others was a case dealing with the existence of family life as between adult siblings, it is clear that, in order to determine family life in all circumstances, a fact-sensitive exercise does require to be carried out. In particular, when dealing with the issue of family life involving foster children it will be necessary to consider all the evidence to establish whether the close personal ties necessary to constitute family life existed. It was not evident to us that the Judge had carried out that fact sensitive exercise and had instead relied solely upon the fact that there was no formal adoption order.

8. We invited submissions from both Ms Karini and Mr Kasusula. Mr Kasusula agreed with our preliminary view. For the respondent, Ms Karini submitted that, when read in the round, there was no error of law in the decision by the Judge although she accepted that the absence of a formal adoption order should not be determinative. Ms Karini also submitted that, in any event, if there was an error it was not material as there was insufficient evidence to establish family life under Article 8 ECHR in any event.

9. After consideration of the submissions we determined that there was an error of law in the approach taken by the Judge to establish family life under Article 8 ECHR. It was not disputed by the parties that this was a case that involved non-core family members. In those circumstances, it was necessary in our view to carry out a fact-sensitive exercise to determine whether or not family life was established. The Judge had not carried out that exercise. The Judge had simply relied upon the absence of a formal adoption order without taking into consideration the broader relationship between the sponsor and the appellants. That was an error of law. It was a material error because, in the absence of that exercise being carried out, it could not be said what view a judge would have come to on the question of whether or not family life is established.

10. In our opinion there was a material error of law in the FtT Decision. We accordingly set aside the decision. We invited submissions from the parties as to further procedure. The parties accepted that the factual grounds were as set out in paragraphs 13 to 29 of the FtT Decision and neither party sought to provide further evidence. In those circumstances we determined that it was appropriate for us to preserve the findings at paragraphs [13 – 29] of the FtT Decision and for us to remake the decision at this hearing having heard further submissions from the parties.

Remaking the Decision

The Law

11. In remaking the decision we bear in mind that this is an appeal based on Article 8 ECHR outside the Rules. It is for the appellants to show that article 8(1) of the ECHR is engaged and if so, it is for the respondent to show that the decision was in accordance with the law, made in pursuance of a legitimate aim and that it was proportionate to the legitimate aim. The standard of proof is the balance of probabilities. Sections 117A to 117D of the 2002 Act are relevant to any assessment under Article 8 ECHR outside the Rules.

Submissions

12. We heard submissions from Ms Karini. She submitted that there was insufficient evidence to establish family life under Article 8 ECHR and that following IA and Others the threshold to establish family life was a high one. She further submitted that, in any event, if family life were established that interference with the family life of the sponsor would not be disproportionate. In relation to the best interests of the children under section 55 Borders, Citizenship and Immigration Act 2009 (“section 55”), she submitted that the appellants had been in the care of the sponsor’s sister in Uganda and there was no evidence to suggest that that arrangement would not continue. The appellants could continue to enjoy family life with the sponsor, albeit remotely.

13. Mr Kasusula submitted that we should find that Article 8 ECHR was engaged. The appellants were de facto adopted and this was the best way to understand the relationship. The appellants had been taken off the streets and given protection by the sponsor and his wife since 2014. They had lived as a family unit. In his submission, Article 8 ECHR family life was fully engaged. It was in the best interests of the appellants under section 55 to come to live in the UK. It was submitted that there was no rule of law in Uganda. The sponsor’s sister was not in a position to look after the appellants and, if they did not come to the United Kingdom, they would be left to go back on the streets in Uganda. This would emotionally impact the sponsor. It would be disproportionate to refuse the appellants entry.

Established Facts

14. The parties were content to accept the factual matrix as being contained within [13 – 29] of the FtT Decision. It was common ground that the appellants were found by the sponsor and his wife on the streets in 2014 and 2015 and that they were cared for within the sponsor’s family from those dates until the sponsor and his family left Uganda to come to the UK in 2021. In Uganda, the sponsor and his wife fostered abandoned children. The appellants had been cared for since 2021 (some 5 years) by the sponsor’s sister whilst continuing to reside in the house previously occupied by the sponsor and his family. The appellants had been registered with the local authority in Uganda but their natural parents had not been identified. The sponsor and his wife had not formally adopted the appellants. The sponsor from time to time sent money to his sister which she used to support the appellants with food and medicines. There was an agreement with the school regarding the payment of fees (but it was not clear what this agreement was).

Discussion and Decision

15. This is an appeal under Article 8 ECHR. We have to be satisfied on the balance of probabilities that family life is established under Article 8(1) of the ECHR. We must undertake a factual analysis to determine, in the case of non-core family, whether the relationship between the appellants and the sponsor is sufficient to constitute family life under Article 8(1) of the ECHR. We take into consideration that the sponsor and his wife fostered abandoned children in Uganda (see [16] of the FtT Decision). The appellants were three of those children. When the sponsor and his immediate core family left Uganda in 2021, the appellants continued to be looked after by the sponsor’s sister. The sponsor described this as a temporary arrangement but it strikes us that it has continued for five years and that, in effect, the sponsor’s sister is now acting as foster mother to the appellants. There was no evidence that established to our mind that there were the close personal ties between the sponsors and the appellants that would constitute family life. There is no evidence from the appellants themselves. The mere fact of cohabitation was not, In our opinion, sufficient to establish family life.

16. In the circumstances we do not find that there is family life between the sponsor and the appellants such as is entitled to protection under Article 8 ECHR.

17. We have taken into consideration the best interests of the children under section 55. In considering the best interests of the appellants as children we note that of the appellants at the date of the hearing, only two were children. The first appellant is 18 years of age (date of birth 29 November 2007); the second appellant is 17 years of age (date of birth 4 February 2009) and the third appellant is 14 years of age (date of birth 19 November 2011). All the appellants have lived in Uganda for their entire lives. They have been educated in Uganda. They lived with the sponsor and his family from 2014/15 to 2021. They have since 2021 been living with the sponsor’s sister at the same location in Uganda. The sponsor’s sister has been caring for them during that period. There is no evidence to suggest that the current arrangements cannot continue. Based on these facts, we consider that it is in the best interests of the appellants to remain in the country within which they have been raised and within the cultural norms of that country.

18. Although we are not satisfied that family life under Article 8 has been established we have, in any event, given consideration to whether, if it had been established, interference would have been proportionate under Article 8(2) of the ECHR. For these purposes we proceed on the basis that the respondent’s decision was made in accordance with the law and in pursuit of a legitimate aim.

19. The public interest lies in the maintenance of effective immigration controls. To strike a fair balance between the competing public and individual interests involved, we adopt a balance sheet approach.

20. We weigh the following factors against the appellant:

a. The appellants have failed to satisfy the Immigration Rules, which carries significant weight.
b. The respondent has a specific policy and on de facto adoptions and the Rules provide for that – but the sponsor and the appellants have opted not to apply through that route. We attach considerable weight to this.

21. We weigh the following factors in the appellant’s favour:

a. The Sponsor will not be able to return to Uganda. We attach some weight to this.
b. There is (assumed for present purposes) family life established under Article 8 ECHR. We attach some weight to this.

22. We take into consideration the weight that we must attach to the Rules and policy of the respondent having regard to what was said at paragraphs 158 and 159 in IA and Others:-

158. It is necessary, in this as in other connections, to consider closely the actual wording of article 8(2) itself. As we pointed out at [8] above, article 8(2) prohibits interference by a public authority with the exercise of the right to family life, except “such as is in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country … or for the protection of the rights and freedoms of others”. As Lord Reed made clear in Agyarko (see [109]-[112] above), in considering how the balance is struck in individual cases, the courts “have to take the [SSHD’s] policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case”. The requirement for “exceptional circumstances” for leave to remain (and therefore also entry clearance) to be granted outside the rules was not inconsistent with either the ECtHR or domestic authorities, and section 117B(1) of the Nationality, Immigration & Asylum Act 2002 required consideration to be given to the maintenance of effective immigration controls.

159. The SSHD’s point is that it is not her policy (as represented by the Rules) to admit all persons who share family life with a person lawfully settled in the UK. That is not a question of floodgates or numbers likely to apply from war zones across the world. It is a question of respect for the UK’s laws and democratic process, and for what the Government determines is necessary in that society to protect the economic well-being of the UK and the rights of citizens of the UK. The courts must always, as Lord Reed said, attach considerable weight to the SSHD’s immigration policies at a general level, alongside considering all the factors which are relevant to the particular case.

23. We also take into consideration that in carrying out the proportionality test we must look primarily at the Article 8 rights of the person within the jurisdiction of this court, the sponsor – see IA and Others at [11].

24. We find that the factors raised by the sponsor/appellants do not outweigh the public interest because the sponsor can continue to have contact with and support the appellants as he has done over the last five years and the appellants can complete their education in Uganda whilst remaining in the care of the sponsor’s sister. There is no evidence that the sponsor’s sister will cease to provide support (despite what Mr Kasusula submitted) and there is no evidence that the appellants are at any risk by continuing to reside in Uganda.

25. We find that the respondent’s decision does not give rise to unjustifiably harsh consequences for the appellants. We find that the respondent’s decision is proportionate and that it is lawful under section 6 of the Human Rights Act 1998.

26. We dismiss the appeal against the decision of the respondent dated 1 November 2024.

Notice of Decision

The FtT Decision did involve the making of a material error on a point of law and the decision is set aside.

The findings in paragraphs 13 to 29 of the FtT Decision are preserved.

We have remade the decision. The appellant’s appeal against the decision of the respondent dated 1 November 2024 is dismissed.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
26.05.26