Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2026-001100
First-tier Tribunal No: HU/62047/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1st September 2026

Before

Deputy upper tribunal JUDGE Kelly

Between

ELIZABETH AKINYI McKEE
(ANONYMITY NOT ORDERED)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr Diwcynz, Senior Home Office Presenting Officer

Heard at Bradford on the 22nd May 2026

DECISION AND REASONS
Introduction
1. The appellant is a female citizen of Kenya. The respondent refused her human rights claim (application for leave to remain in the United Kingdom outside the Immigration Rules) on the 10th September 2024, and her appeal against that refusal was dismissed without a hearing by First-tier Tribunal Hillis on the 2nd December 2025. Judge Pickering granted permission to appeal against Judge Hillis’ decision on the 9th March 2026 and hence the matter came before me.
The respondent’s reasons for refusing the human rights claim
2. The respondent noted that the appellant had not suggested that she had “a partner, parent or dependent children in the United Kingdom”. The respondent therefore only considered the application under the ‘private life’ route to settlement, which they refused for the following reasons –
(1) It was noted that the appellant had entered on the 17th March 2022, that she had thus been in the United Kingdom for only 16 months at the date of her application, and that she did not therefore meet any of the qualifying periods of residence to render her eligible for leave to remain under paragraph 276ADE of the Immigration Rules.
(2) There would not be very significant obstacles to her integration on return to Kenya.
(3) The appellant’s mother was receiving charitable support as a survivor of domestic violence that would continue following the appellant’s return to Kenya and there was in any event no reason why her mother could not return with the appellant to Kenya should she so choose. It was also open to the appellant to apply for entry clearance from Kenya as a student or a visitor. The fact that the appellant had paid a total of £6,000 to meet the cost of her student visa application and part of her university course fees suggests that she would be able financially to support herself on return to Kenya. The appellant was a heathy female of working age who had demonstrated “extreme fortitude by travelling to an unknown country in the UK”. There were accordingly no ‘exceptional circumstances’ that would render refusal of the application unjustifiably harsh.
3. The respondent also noted, at paragraph 19 of the Reasons for Refusal Letter, that the appellant had stated that she did not have any relatives in the UK even though Home Office records showed that her mother had entered the UK on the 10th December 2020. It was therefore “not clear why [the appellant] failed to disclose that [her] mother was living in the UK at the time of [her] application”.
The decision of the First-tier Tribunal
4. The judge began my making findings of fact. This included the following at paragraph 16 -
I conclude it is highly unlikely that the Appellant did not know that her mother was the subject of domestic violence at the hands of her British subject when she made her student visa application. I conclude, on the balance of probabilities, that the Appellant would have been fully aware if she disclosed in her application for her student visa that her mother had been in the UK for eleven months when her mother reported the domestic violence to the police, this would have caused difficulties with her visa application as it would call into question the genuine reason for her wishing to come to the UK.
5. The judge thereafter concluded that the appellant’s right to respect for private and family life under Article (1) of the European Convention of Fundamental Rights and Freedoms was not engaged by the facts of the appeal but that, even if it was, the public interest in maintaining immigration controls outweighed that right [23].
The grounds of appeal.
6. The grounds may conveniently be summarised as follows –
1. The judge erred in concluding that Article 8(1) of the Convention was not engaged and failed properly to assess whether family life existed between the appellant and her mother.
2. The judge considered the appellant’s circumstances in isolation rather than cumulatively.
3. It was procedurally unfair to make adverse credibility findings without giving the appellant an opportunity to address matters at an oral hearing.
4. The judge gave insufficient weight to “the impact of removal on the appellant” and excessive weight to “public interest considerations”.
Error of law by the First-tier Tribunal
7. Given that I have decided to allow the appeal on ground 3 and redetermine the appeal on the papers, it is both inappropriate and unnecessary for me to determine whether grounds 1, 2 and 4 disclose errors of law in the judge’s reasoning. It is however necessary to explain why i have concluded that not only does the third ground disclose an error of law, but that it was material to the outcome of the appeal.
8. At paragraph 19 of the letter explaining the reasons for refusing the application, the respondent noted as follows:
On your student visa application form lodged in January 2022 … you stated clearly that you had no family member in the UK, yet in November 2020 your mother was issued a Spouse of a Settled Person Visa and according to Home Office records she entered the UK on 10th December 2020. It is not clear why you failed to disclose that your mother was living in the UK at the time of your application.
9. The reason for making this observation is obscure, but some clue may be derived from the fact that it appears within the section of the decision that is headed, “exceptional circumstances”. Certain it is, however, that the respondent’s assessment of the existence or (as the respondent concluded) absence of exceptional circumstances was not based upon the appellant’s claim in her student visa application that she was without family members in the United Kingdom. To the contrary, the respondent’s consideration was based upon the appellant’s claim in the letter she filed in support of her human rights claim that she and her mother were, “acting as each other’s support system” in the United Kingdom [paragraph 11]. Equally certain is that the respondent did not draw any adverse conclusion from the apparently false statement and/or failure of disclosure concerning her mother’s current country of residence at the time when she made her student visa application. If there were any doubt about this it is dispelled by the respondent’s express statement that the appellant’s application did, “not fall for refusal on grounds of suitability in Section S-LTR of Appendix FM” [paragraph 4, emphasis added]. The respondent’s Rule 24 Notice is accordingly correct in stating that the appellant’s credibility was not “a material issue or fact”. However, this begs the question as to why the judge not only chose to treat it as such, but also proceeded to determine it adversely to the appellant. Thus, at paragraph 16 of the First-tier Tribunal’s decision, the judge made the following finding –
I conclude, on the balance of probabilities, that the Appellant would have been fully aware if she disclosed in her application for her student visa that her mother had been in the UK for eleven months when her mother reported the domestic violence to the police, this would have caused difficulties with her visa application as it would call into question the genuine reasons for her wishing to come to the UK.
10. I am thus satisfied that in making an adverse credibility finding that was irrelevant to any of the issues in the appeal, the judge fell into legal error. That error was compounded by not having first listed the appeal for an oral hearing so as to provide the appellant with an opportunity to answer the supposed charge of deceit that was being levelled against her. Whilst it is true that the parties had given their consent to the appeal being determined without a hearing, that consent was given on the understanding that any proportionality assessment would be undertaken upon what were essentially unchallenged facts. I therefore turn to consider the question of whether the error was material to the outcome of the appeal.
11. The respondent’s Rule 24 argues that the judge’s adverse credibility finding did not “factor into the Article 8(1) & (2) findings from [18] – [23]”. This is certainly true on the face of the decision, in that the judge did not expressly mention his finding of deliberate deceit or non-disclosure in the course of undertaking his proportionality assessment, thereby highlighting still further its irrelevance to the true issues in the appeal. However, having noted the finding that the appellant had effectively lied in her student visa application form for the purpose of securing an immigration advantage, I am concerned that a fair-minded and informed observer would consider there to be a real risk of subconscious bias in the subsequent proportionality assessment under Article 8. Given that my concern about perceived (rather than actual) bias is one that deviates (albeit only slightly) from the pleaded ground of procedural unfairness, I asked Mr Dywcnz whether he objected to my determining the materiality issue on this basis. He indicated that he did not object to my doing so given (a) the overarching requirement of fairness, and (b) the fact that the appellant was unrepresented.
12. I therefore set aside the decision of the First-tier Tribunal and proceed to redetermine the appeal in the Upper Tribunal. Given that the true issues are not concerned with with the appellant’s credibility, together with the fact that both parties have consented to this course, I am satisfied that I can justly redetermine the appeal without a further hearing.
Reconsideration of the appeal in the Upper Tribunal
13. The appellant is currently aged twenty-seven. She has been in the United Kingdom for a little over 4 years, having previously spent the entirety of her life in Kenya, the country of her nationality. She sets out her case in an undated statement entitled, ‘Letter of Consideration’. She says in that statement that she has, “no home or family to return to”. However, I am unable to accept the generality of this statement given the lack of detail concerning (a) the number and whereabouts of her family members other than her mother, and (b) her circumstances in Kenya prior to her following her mother to the United Kingdom over a year later. I have moreover noted that she says in her statement that she worked part-time in the United Kingdom to clear her debts and to ‘provide’ (presumably financially) for her mother. I am not therefore satisfied that she would face “very significant obstacles” to her integration on return to Kenya amounting to a disproportionate breach of her right to respect for private life under Article 8 of the Human Rights Convention. I therefore turn to the question of whether the appellant enjoys ‘family life’ with her mother in the United Kingdom.
14. The grounds of appeal note that the threshold for engagement of Article 8 is low. However, the first question is whether family life exists at all. The leading case is now IA & others v Secretary of State for the Home Department [2025] EWCA Civ 1516. This confirms that family life for the purpose of Article 8 is normally limited to the core family and that there will not be family life between parents and adult children unless they can demonstrate, “additional elements of dependence involving more than normal emotional ties”.
15. As previously noted, the appellant is the adult child of Rosemary Adhiambo. Rosemary Adhiambo has also written a ‘Letter of Consideration’. However, the source of their financial support remains unclear. As noted above, the appellant claims that she was at one time ‘providing’ for her mother through part-time work, although this appears to have ceased after they took, “shelter and refuge at the Angelou Centre”. The claim made in the ‘Appeal Reasons’ to the First-tier Tribunal - that the appellant, “remains entirely dependent on the family unit [whatever that may mean] to meet her essential living needs” - has not therefore been substantiated by evidence. I am accordingly not satisfied that the appellant is financially dependent on her mother or vice versa. There is simply no evidence before me as to the source of financial support for either of them.
16. Both the appellant and her mother have experienced emotional trauma since coming to the United Kingdom: domestic violence in the case of the appellant’s mother, and exclusion from Northumbria University in the case of the appellant. I do not therefore doubt that they have each provided the other with solace during difficult times. I am not however satisfied that the source of that solace derives from more than normal emotional ties between a mother and her adult daughter.
17. I am accordingly not satisfied that the relationship between mother (Rosemary) and adult daughter (the appellant) amounts to ‘family life’ for the purpose of Article 8 of the Human Rights Convention. I have nevertheless considered the position (in the alternative) on the assumption that it does.
18. I am satisfied that the possible disruption to assumed family life occasioned by the appellant’s removal to Kenya suffices to surmount the low barrier necessary for engagement of Article 8 of the Convention. I am equally satisfied that the decision to refuse leave to remain was made in accordance with the law as expressed in the Immigration Rules. The remaining question is whether the consequences of removal would be ‘unjustifiably harsh’; or, to put it another way, a disproportionate interference with the appellant’s assumed family life in furtherance of the public interest in consistent application of immigration controls.
19. I am satisfied, from the admirably clear manner in which the appellant presented her arguments at the hearing, that she is fluent in the English language. The weight attaching to the public interest in this regard is neither enhanced nor diminished by this factor.
20. For reasons already given, I am not satisfied that the appellant is currently of independent means. This factor enhances the weight attaching to the public interest.
21. Leave to enter and remain was granted to the appellant’s mother on the basis of her marriage to a person with settled status in the United Kingdom. That leave is now liable to be curtailed (because the marriage has irretrievably broken down) unless she is able to prove to the respondent that the cause of the breakdown was domestic violence (something that I have assumed for the purposes of this appeal). The appellant’s leave to remain, on the other hand, has already been curtailed due to her exclusion from Northumbria University. Their assumed family life was accordingly established at a time when the immigration status of the appellant, and arguably also her mother, was precarious. I therefore attach less weight to it than otherwise.
22. In Arshad v Secretary of State for the Home Department [2025] EWCA Civ 355, Elisabeth Laing LJ noted [at 118] that the core of family life is parents who live together with their young children and that such family life is self-evidently entitled to greater weight in any proportionality balance than more distant relationships where the family members have lived their adult lives in different households. This reality is implicit in the decision of the appellant’s mother to start a new life with her husband in the United Kingdom whilst the appellant remained in Kenya.
23. Finally, I remind myself that Article 8 does not guarantee the right to enjoy family life in the country of choice. Neither the appellant nor her mother have advanced reasons why they could not enjoy assumed family life in their country of origin.
24. Having considered matters on both sides of the balance sheet, I conclude that the decision to refuse the appellant’s application for leave to remain represents a fair balance between, on the one hand, the public interest in the consistent application of immigration controls and, on the other, the appellant’s right to respect for private and family life.
25. I am conscious that the outcome of this appeal is no different to that which was determined by the First-tier Tribunal. It is nevertheless important that justice is not only done, but that the process by which it is achieved is manifestly seen to be fair.
Notice of Decision
1. The decision of the First-tier Tribunal contained a material error of law and is set aside.
2. The appeal from the respondent’s decision to refuse leave to remain in the United Kingdom is dismissed upon fresh consideration by the Upper Tribunal

David Kelly Date: 25th May 2026
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber