Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000944
First-tier Tribunal No: HU/62740/2023
LH/04720/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

[E B]
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Chakmajian of Counsel, instructed by SWM Solicitors
For the Respondent: Ms McKenzie Senior Home Office Presenting Officer

Heard at Field House on 5 May 2026

DECISION AND REASONS

1. The appellant, who is a citizen of Albania, appeals with permission against the decision of First-tier Tribunal Judge Oxlade (“the Judge”) promulgated on 25 November 2026 dismissing his appeal against the respondent’s decision dated to refuse his human rights claim.

2. The appellant’s immigration history is clearly unsatisfactory. He first came to the UK on 15 May 2012, was detained on 18 November 2012 and made a claim for asylum on 29 November 2012 which was refused on 8 January 2013. He was removed from the UK on 9 February 2013 and returned to the UK in June 2013 illegally. He was served with RED.0001 on 1 October 2020. He made this application on 21 June 2023.

3. Permission to appeal was granted on 18 November 2025 by First-tier Tribunal Judge Oxlade on three grounds. In essence, it was arguable that although the Judge accepted that the appellant played an active role in his child’s life, he failed to undertake any assessment of the child’s best interests under Article 8 of the European Convention on Human Rights. Instead, having found that the appellant did not meet the requirements of Appendix FM, the Judge treated that conclusion as determinative of the appeal.

4. At the hearing before the Upper Tribunal, Ms Everett, on behalf of the respondent, properly accepted that the decision contained a material difficulty. She acknowledged that while the Judge had accepted the appellant’s involvement in the child’s life, he made no findings in relation to the child’s best interests. She therefore conceded that the decision involved a material error of law. Mr Chumaujian, on behalf of the appellant, accepted that concession.

5. In light of the respondent’s concession, our own assessment of the decision, we are satisfied that the Judge made a material error of law by failing to address the Article 8 rights of the child.

6. The Judge accepted that the appellant is the biological father of the child, a finding supported by the DNA evidence before the Tribunal. The Judge further accepted that the appellant has direct contact with the child and plays an active role in her upbringing, including undertaking school runs and providing childcare.

7. Having found, however, that the appellant did not meet the requirements of paragraph E‑LTRP.3.2 of Appendix FM, the Judge concluded that there were “no exceptional circumstances” for the purposes of GEN.3.2, and stated that the appellant could return to Albania and make an application for entry clearance. The decision effectively ended at that point.

8. That approach was flawed. The Judge’s bare assertion that there were no exceptional circumstances failed to engage with the evidence relevant to the child’s best interests, or to consider whether the outcome would be compatible with those interests. The Judge appears to have treated the appellant’s failure to meet the Immigration Rules as determinative of the Article 8 assessment.

9. As confirmed by the Court of Appeal in TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109, the Immigration Rules do not constitute a complete code. Even where an appellant fails to meet the Rules, the Tribunal must still conduct a full proportionality assessment under Article 8, taking account of all relevant circumstances, including the likelihood of leave being granted outside the Rules.

10. There was substantial and uncontested evidence before the First-tier Tribunal that the appellant has had an ongoing and meaningful relationship with the child since her birth. That evidence included the appellant’s involvement in routine childcare, school runs, attendance at medical appointments, and other day-to-day activities.

11. There was also evidence that the child’s mother relies on the appellant’s practical and emotional support. The evidence indicated that she is caring for the children alone and suffers from fragile mental health. The Judge did not reject this evidence or make adverse credibility findings in relation to it.

12. Despite this, the Judge failed to conduct any meaningful proportionality assessment under Article 8 and failed to take into account all the evidence before him. The jurisprudence is clear that a failure to engage with material evidence, or to explain how it has been weighed, constitutes an error of law.

13. While the Judge was entitled to conclude that the appellant did not meet the requirements of the Immigration Rules, that did not absolve him of the obligation to consider the best interests of the child, as required by section 55 of the Borders, Citizenship and Immigration Act 2009.

14. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, the Supreme Court emphasised that decision‑makers and tribunals must conduct a focused evaluation of a child’s welfare and must explain, by reference to the evidence, how the child’s best interests have been assessed and weighed. No such evaluation was undertaken in this case.

15. The Judge appears to have treated the conduct or immigration history of the father as weighing against the child. That approach is legally erroneous. In KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, the Supreme Court confirmed that, in cases involving children, statutory provisions must be read consistently with the general principle that a child should not be held responsible for matters such as the conduct of a parent.

16. Accordingly, we find that the decision is infected by a material error. Both parties agreed that the appeal should be remitted to the First-tier Tribunal for a de novo hearing by a different Judge. We preserve the finding of the First-tier Tribunal that the appellant is the biological father of his child living in the United Kingdom.

Sureta Chana
Deputy Judge of the Upper Tribunal
7th day of May 2026