Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001075
UI-2026-001077
First-tier Tribunal No: HU/52503/2024
HU/52500/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 August 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

SS & IS
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Saifolahi, counsel
For the Respondent: Ms McKenzie, Senior Presenting Officer

Heard at Field House on 3 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants and members of their family, likely to lead members of the public to identify the appellants and members of their family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction and Background

1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘the FtT’) because one of the appellants is a child. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellants’ case at its highest for these purposes, that the child’s right to privacy outweighs the interests of the public to know of the appellants’ identities.

2. This decision should be read in conjunction with my previous decision where I found an error of law in how the FtT assessed the best interests of the child appellant IS. Where relevant, such as in setting out the background and legal framework, I have reproduced in substance what I previously included in the error of law decision. The underlying appeal came back before me to be remade.

3. The factual basis for the appeals is that the appellants, a mother (SS) and her minor child (IS), both Afghan nationals, applied for entry clearance to join the child’s father and SS’s husband (the sponsor) in the UK, where he has resided for several years. The applications were refused in February 2024 because they could not meet the requirements of Appendix FM. The appeals therefore proceeded solely on Article 8 grounds outside of the Immigration Rules with the appellants relying on the factual circumstances that, following the Taliban reclamation of power in August 2021, they had unsuccessfully attempted to flee to Pakistan and later returned to Afghanistan where they lived with family in difficult conditions said to involve general restrictions on women and hardship arising from separation from the sponsor who was unable to relocate due to very significant obstacles to reintegration in Afghanistan.

The Remaking Hearing

4. At the remaking hearing, I heard oral evidence from the sponsor. He was not assisted by an interpreter and gave evidence in English. At the outset of the hearing, I clarified whether he felt comfortable giving evidence in his second language. He was clear that he had no need for an interpreter. Over the course of his evidence, he sometimes had to answer a question several times to make himself fully understood, but I remained satisfied that he did not require an interpreter and no application was made for such assistance on his behalf. However, I have taken these language issues into account in my assessment of his evidence.

5. In the error of law decision, I preserved the following findings of fact from the FtT decision:

i. The sponsor and SS are partners and are in a genuine and subsisting relationship.

ii. IS is the son of SS and the sponsor.

iii. It would be unjustifiably harsh for the sponsor to return to Afghanistan and that there would be very significant obstacles to his integration if he returned.

I clarified at the outset of the hearing that (iii) above referred to the sponsor returning to Afghanistan to live as a permanent resident. The facts as found by the FtT, and preserved, plainly did not preclude the prospect of him visiting the country as he has done on a regular basis over recent years.

6. Ms McKenzie ultimately accepted during preliminary discussions about the issues to be resolved in the appeal that there was no dispute that Article 8 of the ECHR was engaged on the facts notwithstanding that the family had always lived apart. It was recognised that, in the absence of any dispute that the appellants were the sponsor’s wife and minor biological child, this was a sufficiently cohesive and core family unit with which the refusal decision would amount to a sufficiently consequential interference. It was agreed that the only meaningful question to be resolved in the proceedings was whether the refusal decision amounted to a disproportionate interference when all relevant factors, including the primary best interests of IS as a child, were weighed in the balance.

7. I address any submissions of significance in the discussion section below.

Discussion

8. Article 8 of the ECHR provides:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

9. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society. The executive’s policy, as reflected in the rules approved by Parliament are deserving of considerable respect in any balancing exercise (SSHD v IA & Others [2025] EWCA Civ 1516; [2026] W.L.R. 1001 at [109]-[110], [142] and [158]-[169])

10. S.117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.  

11. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue. It is well-settled in this jurisdiction that the assessment of proportionality is best undertaken by adopting a balancing exercise which takes into account the factors weighing in favour of the appellant’s and their family’s personal interests against the public interest in maintaining effective immigration controls.

12. If the fifth question relating to proportionality is reached, Lord Bingham, in his judgment in Huang v SSHD [2007] 2 AC 167 at paragraph 20, provided further guidance as to how this should be assessed:  

[…] the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. 

13. In CAO v SSHD [2024] UKSC 32, the Supreme Court recently considered how tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment:

[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.

14. In the reported Presidential decision of the Upper Tribunal, E-A (Article 8 – best interests of child) Nigeria [2011] UKUT 00315 (IAC), the following principles were decided:

(i) The correct starting point in considering the welfare and best interests of a young child would be that it is in the best interests of a child to live with and be brought up by his or her parents, subject to any very strong contra-indication. Where it is in the best interests of a child to live with and be brought up by his or her parents, then the child’s removal with his parents does not involve any separation of family life.
(ii) Absent other factors, the reason why a period of substantial residence as a child may become a weighty consideration in the balance of competing considerations is that in the course of such time roots are put down, personal identities are developed, friendships are formed and links are made with the community outside the family unit. The degree to which these elements of private life are forged and therefore the weight to be given to the passage of time will depend upon the facts in each case.
(iii) During a child’s very early years, he or she will be primarily focused on self and the caring parents or guardian. Long residence once the child is likely to have formed ties outside the family is likely to have greater impact on his or her well being.
(iv) Those who have their families with them during a period of study in the UK must do so in the light of the expectation of return.
(v) The Supreme Court in ZH (Tanzania) [2011] UKSC 4 was not ruling that the ability of a young child to readily adapt to life in a new country was an irrelevant factor, rather that the adaptability of the child in each case must be assessed and is not a conclusive consideration on its own.

15. The above principles were plainly decided in the context of a challenged decision which might result in the child being removed from the UK. The present proceedings are different in that IS is seeking entry clearance, with his mother, to join his father in the UK. As IA recently made clear, tribunals must be disciplined in maintaining the appropriate focus on the UK-based sponsor in any balancing exercise. That being said, there can be no doubt that EA articulated the rather uncontroversial proposition that, as a starting point, it will be in the best interests of a child to be brought up by both parents. I am unaware of any authority which says anything different and I certainly was not directed to any such statement of principle. It is well-established that children are best placed to thrive and develop when under the care of both parents when the parental couple are in a subsisting relationship. The bonds forged between a child and their parents at the beginning of that child’s life shape the people they become. This is when children begin to understand the world around them through the prism of their nuclear family. This immediate family structure is the bedrock of an infant child’s early development and social growth and is the paradigm family unit. Ms McKenzie maintained the position that it would be in IS’ best interests for him to remain in Afghanistan living with mother and that his continued separation from his father did not have a meaningful bearing on his best interests as a child. I am unable to accept that it is the best interests of IS for him to remain living in circumstances where he does not have the benefit of his father’s regular presence, guidance and love in a shared family home. Ms McKenzie’s argument appeared strained and divorced from reality. It is almost self-evident that it is in IS’ best interests for him to live in the UK, the only country this family can feasibly and permanently live together as a family. On the preserved findings of fact, this family cannot live together permanently in Afghanistan. The best interests of IS is a primary factor in the balancing exercise.

16. In addition to the above assessment of the best interests of IS, an intimately related point in favour of the appellants is that the family cannot share a permanent family home in Afghanistan. This is because the sponsor has been found in previous judicial rulings to be unable to integrate into Afghan society due to the existence of very significant obstacles, and that he would face unjustifiably harsh consequences should he attempt to do so. However, it is relevant to assess how long this state of affairs might persist. The sponsor is a matter of months away from accruing 10 years’ lawful leave to remain in the UK which will entitle him to apply for indefinite leave to remain. As it was only his immigration status which prevented these applications succeeding under the Immigration Rules, and with no obvious reason why a future application for entry clearance for his wife and child would not succeed in the near future once he has secured ILR, there is every reason to think that the separation of this family is likely to be relatively short-lived. Ms Saifolahi argued that this forward looking relatively brief period must be considered in tandem with the several years which have elapsed since these applications were made and refused by the respondent. This background is relevant but, in my view, outweighed and overtaken by the circumstances which presently apply. Ms McKenzie was correct, in my judgement, to observe that the tribunal must be cautious not to effectively allow the queue to be jumped in circumstances where the application demonstrably fell short of the requirements of the Immigration Rules when they were made and have since come closer to a breed of ‘near-miss’ argument now that the sponsor is a matter of months away from securing ILR. It strikes me as unprincipled to conclude that proximity to a point in time when future applications are likely to succeed should weigh in favour of the applicants. The more powerful point is that the separation of the family is no longer open-ended and may only continue for a matter of months. The continuation of this status quo for a limited period necessarily diminishes the weight to be attached to the fact that the refusal decision has the effect of separating this family unit only for the time being.

17. Turning to the matters set out in s.117B of the 2002 Act, no issue was taken about the ability of the appellants to speak English nor that the sponsor would be able to provide for them such that they would be financially independent. Strictly speaking, s.117B(4) has no application in this case because the first appellant is not a qualifying partner for the purposes of the Act. However, the broader point falls to be made that this family life came into being at a time when the adult partners lived in separate countries and it was known that the sponsor had succeeded in arguing that it would breach his Article 8 private life rights to permanently live in Afghanistan. Neither could have had any legitimate or realistic expectation that they could choose to live in the UK with their child unless they met the applicable Immigration Rules. The adult choices they made weigh heavily in the assessment of whether they should be permitted to circumvent the Immigration Rules today. While IS bears no responsibility for the adult choices made by his parents, this factor is plainly relevant in striking a fair balance which includes the primary factor that his best interests lie in sharing a home with both parents in the UK.

18. Ms Saifolahi rightly did not emphasise the struggles SS faces as women trying to navigate the oppressive regime now in place in Afghanistan. This is because IA made it tolerably clear that such emphasis runs the risk of shifting the proper focus of the proportionality balancing exercise. The focus must remain on the UK-based sponsor as he provides the jurisdictional peg on which these Article 8 claims proceed. Of course, I bear in mind that conditions for the appellants are almost certainly very challenging in Afghanistan, but this only attracts moderate weight in a balancing exercise which must focus on the sponsor’s family life with his wife and child. To that end, I have no hesitation in concluding that he is suffering emotionally due to the continued absence of his most immediate family. However, there was nothing of substance to indicate that his distress went beyond emotional upset. A psychiatric report was provided from 2015 but this was so distant in time that it could only attract limited weight as background material which fed into a previous judicial decision that he would encounter very significant obstacles to integration if he returned to Afghanistan.

19. Turning to the public interest, both legislation and recent pronouncements of the Court of Appeal could scarcely be clearer that maintenance of effective immigration controls is a powerful factor in a case such as this. The Immigration Rules reflect the state’s policy position in this field and demand considerable respect. The applications unarguably could not meet the requirements of Appendix FM of the Immigration Rules. The Secretary of State has constitutional competence to determine where the limits should fall in applications such as these and here the applications fell considerably short because the sponsor simply did not have the immigration status needed to sponsor entry clearance on behalf of his wife and child. Notwithstanding that it is in the best interests of IS to share a home with both parents in the UK, I find that the balance favours the public interest in maintaining the refusal decisions. The best interests of the child is a primary factor but this strong factor together with other weaker factors in the appellants’ favour is outweighed by the stronger and weightier public interest in maintaining the refusal decisions which accord with the Immigration Rules. None of the factors I have considered, either individually or cumulatively, amount to unjustifiably harsh consequences.

Notice of Decision

I dismiss the appeals on Article 8 human rights grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 August 2026