Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001266
First-tier Tribunal No: PA/53482/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 August 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

ADEWALE ISMAHEEL KOMOLAFE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Moksud, IIAS Solicitors
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 28 July 2026

DECISION AND REASONS

1. This is the re-making of the decision in the appellant’s appeal, following the setting aside of the decision of First-tier Tribunal which had dismissed the appellant’s appeal on protection grounds but had allowed the appeal on Article 8 human rights grounds.

2. The appellant is a citizen of Nigeria, born on 8 August 1977. He arrived in the UK on 10 October 2019 with a valid visa but overstayed and claimed asylum on 1 November 2022 on the basis of a fear of being persecuted in Nigeria as a result of his previous political activities in that country. His claim was refused on 25 January 2024 in a decision in which the respondent did not accept any of his claim to be credible.

3. The appellant appealed against that decision. His appeal came before the First-tier Tribunal Judge initially on 1 May 2025 and was adjourned part-heard, resuming on 8 December 2025.

4. At the hearing on 1 May 2025 the judge noted that the appellant had since got married on 24 February 2025 to his wife, Maryam Sanni, who had been recognised as a refugee in the UK in 2020 and who had been granted indefinite leave to remain. The judge recorded Ms Sanni’s evidence that she had given notice of intention to marry to the Home Office, that she had been interviewed by the respondent to ensure that the marriage was not a sham, and that she had received a letter from the Home Office permitting the marriage to proceed. The judge indicated that if the respondent was aware of the appellant’s status as an asylum-seeker and gave a positive approval of the marriage, he would be minded to grant the appeal on Article 8 grounds outside the rules because his wife could not return to Nigeria herself. The judge indicated that he considered the respondent’s positive approval of permission to marry was at the very least tacit acceptance that Article 8 rights should continue in the UK. He adjourned the appeal with directions for the appellant to provide copies of the letters and other evidence relating to the marriage approval process and any evidence of his status he had relied on, and for the respondent, if content with the representations made in obtaining marriage consent, to consider making an Article 8 grant outside the rules and withdrawing the decision, failing which the appeal would be listed for a full hearing.

5. In the absence of submissions from the respondent the appeal proceeded on 8 December 2025 on both protection and human rights grounds. The judge was not satisfied that the appellant had given a credible or consistent account of what happened in Nigeria and did not accept that he was at any risk on return to Nigeria. The judge did not accept that the appellant’s removal to Nigeria would breach his Article 8 rights on private life grounds as it was considered that there were no very significant obstacles to his integration in that country. However the judge allowed the appeal on Article 8 family life grounds in relation to the appellant’s marriage to his wife, with whom it was accepted he had a genuine and subsisting relationship. The judge considered that the fact that permission was granted for the couple to marry was a tacit acceptance that Article 8 family life was to continue in the UK in some shape or form and was satisfied that the permission to marry was a matter of some weight to be considered in the balance sheet approach. The judge considered that the rules could not be met on relationship as there was no Appendix FM application but that little weight should be attached to that because permission has been granted to marry. The judge was satisfied there were exceptional circumstances that merited consideration outside of the rules, and considered that the issue that tipped the balance in the appellant's favour was the state's recognition that he was permitted to marry his wife under English law, which was a prima facie recognition of Article 8 rights being accepted as continuing in the UK. The respondent considered that that struck a fair balance between competing interests and led to a proportionate outcome, and he allowed the appeal outside the rules on Article 8 family life grounds.

6. The Secretary of State sought permission to appeal to the Upper Tribunal against the judge’s decision on the grounds that there had been a failure to have regard to Part 5A of the Nationality, Immigration and Asylum Act 2002 and that the judge had given consideration to irrelevant matters and had failed to consider relevant matters.

7. Following the grant of permission in the First-tier Tribunal, the Upper Tribunal heard the Secretary of State’s appeal and, in a decision promulgated on 10 June 2026, set aside the First tier Tribunal’s decision on the following basis:

“DISCUSSION AND FINDINGS

9. The Appellant had originally sought protection on Convention and Article 3 grounds but these claims along with his article 8 “private life” claim had been dismissed by the FtT and no challenge had been made to those findings.

10. The FtT had allowed the Appellant’s appeal on Article 8 “family life” grounds, and it was this decision that the Respondent had challenged and been granted permission to appeal.

11. There were in effect two grounds of appeal. Firstly, the weight the FtT placed on a letter (pages 40 to 41 of the bundle) permitting the parties to marry and the fact it had treated this letter as a “prima facie recognition” of family life continuing in the United Kingdom and secondly, a failure to apply Part 5A of the Nationality, Immigration and Asylum Act 2002.

12. The FtT stressed the significance and importance of the aforementioned letter in four
paragraphs of its own decision:

a. In paragraph [15], the FtT said, “The fact that permission was granted for the couple to marry was a tacit acceptance that article 8 family life was to continue in the UK in some shape or form. To conclude otherwise would be perverse.”

b. In paragraph [16] the FtT said, “I am satisfied that the respondent, albeit with a different hat on, having conceded that the appellant's marriage is permitted to take place in the UK under English law renders a primary facie case that his article 8 rights to family life have been accepted as continuing in the UK. It is difficult to conclude anything else, albeit that this decision will have been made under a different legal regime. I am satisfied the permission to marry is a matter of some weight to be considered in the balance sheet approach.”

c. In paragraph [17], the FtT said, “… inability to meet the rules is a matter on the other side of the balance sheet but little weight is attached to this because permission has been granted to marry.”

d. In paragraph [20], the FtT said, “… the issue that tips the balance in the appellant's favour is the state's recognition that the appellant was permitted to marry his wife under English law. That is a prima facie recognition of Article 8 rights being accepted as continuing in the UK.”

13. Mr Tan referred us to the fact such letters were administrative and limited in scope. The letter, he pointed out, stated as much. Such letters reflected that, on the information available at the time, the Secretary of State chose not to exercise powers to investigate further or to prevent the marriage. The letter made it clear the decision was not a determination of genuineness and did not preclude later enforcement or refusal decision.

14. We are satisfied this letter is neither a finding for Article 8 purposes, nor an acceptance of the durability or substance of the relationship. The letter clearly stated that “it (the consent) did not constitute a determination as to the genuineness of your relationship.”

15. We are satisfied the findings, referred to in paragraph [11] above, point to the fact that the FtT did the opposite and attached significant weight to the letter. At paragraph [19] the FtT went on to state the case was stuck at 50/50 and at paragraph [20] the FtT made it clear it was this letter that tipped the balance in the Appellant’s favour.

16. Mr Moksud argued the Respondent should have set out her position in a letter as directed to do so by the FtT, but even if that was the case it did not alter the fact the FtT interpreted the content of the letter incorrectly and therefore placed far too much weight it.

17. Having erred here we were further satisfied the FtT’s assessment under Part 5A of the Nationality, Immigration and Asylum Act 2002 (s.117 A-C) and Article 8(2) was also flawed.

18. Part 5A of the Nationality, Immigration and Asylum Act 2002 sets out the statutory public interest considerations which a Tribunal must have regard to when determining Article 8 claims. It requires a structured assessment of proportionality, including that the maintenance of effective immigration control is in the public interest, that little weight should ordinarily be given to private life or relationships formed when a person’s immigration status is precarious or unlawful, and that factors such as English language ability and financial independence weigh in an individual’s favour where established. Sections 117A–C thereby provide a mandatory framework within which Article 8(2) balancing must be conducted.

19. The FtT’s findings on Part 5A were limited. Whilst the FtT concluded unlawful status “had some weight against him”, the FtT failed to place any weight on Section 117B (1) to (3) of the 2002 Act. Section 117B(1) makes it clear when balancing all the arguments weight must be given to the importance of maintaining immigration control. Whilst the FtT referred in general terms to competing factors, there was no structured assessment by reference to the statutory public interest considerations, nor any express Article 8(2) analysis. Given that the appeal was allowed outside the Rules, it was incumbent upon the FtT to carry out an analysis under article 8(2).

20. Mr Moksud argued that even if there was an error it would not be material because family life could only take place in this country because the Appellant’s partner could not return to Nigeria. Whilst the point made is noted this argument overlooked the fact that this submission is one which would have to be balanced by the FtT hearing the appeal and simply having a British partner did not entitle the Appellant to live here.

21. We therefore found that there was a material error of law in so far as article 8 family life was concerned and we set aside that part of the decision. The decisions under the Refugee Convention, article 3 ECHR and article 8 private life shall stand.

22. Both parties agreed that in the event of an error, the case should remain in the Upper
Tribunal..”

8. The matter then came before me to re-make the decision in the appellant’s appeal, following the issue of a transfer order.

9. The appellant and his wife gave oral evidence before me. The appellant adopted his statement as part of his evidence and confirmed that he lived with his wife and her three children aged 13, 12 and 10 years, and that he had four children of his own in Nigeria. Two of his wife’s children were British and one had ten years’ leave to remain. His wife had indefinite leave to remain. The appellant said that the proposed removal to Nigeria would impact on his family life as his wife could not go back and start a new beginning in Nigeria. His step-children had never been to Nigeria. The appellant said that he contributed to his step-children’s upbringing as they lived together and he helped in any way he could. It would affect his wife emotionally if he was not in the UK. She had had a miscarriage last year and they supported each other in every way. She worked as a kitchen assistant in a school and also did agency work as a support worker. She could not really continue working if he was not there as he was at home when she was at work and he helped looking after the children. It would be difficult for her.

10. When cross-examined the appellant said that he moved to his current address in November 2024 before he and his wife were married and he had lived there since. The appellant gave the names of his wife’s two older children and the names of their schools. When asked why there was no evidence form the elder children’s school, the appellant said that he did not go there but only went to the youngest’s school as he would take her to school. He did not usually attend parents evenings. The appellant said that the children did not see their biological fathers and did not communicate with them. When asked why he was enrolled on a course in Manchester if he lived in Liversedge, the appellant said that it was because he had been there since 2023 and so he would go there by train on Wednesdays and Thursdays. In response to my enquiry, the appellant explained that one of his step- children had a different father to the other two.

11. The appellant’s wife adopted her statement and was cross-examined by Mr Tan. She said that she and the appellant moved into their address together in November 2024 and that he would go to his classes in Manchester. When asked why she had only produced a letter from the youngest child’s school, she said that that was because the appellant took her to school when she was at work. The older children went by themselves, although the younger one was also able to go by herself except when they came back from a school trip. The appellant’s wife said that she did not have any contact with the biological fathers of her children and so the appellant was the one responsible for them. He was a loving, responsible father. He could not go back to Nigeria because it was a terrible place and he came here to save his life. When re-examined, Ms Sanni said that she earned £900 from her two jobs. It would be very bad if her husband was removed by the respondent as she could not go back there and it would affect the children. They were born here and they did not know anything about Nigeria.

12. Both parties then made submissions.

13. Mr Tan submitted that the only issue to be re-determined was Article 8 outside the rules. No reason had been provided as to why the appellant should not be required to return to Nigeria to make the correct entry clearance application. His wife had managed before she met him. Their relationship began some way through these proceedings and the earlier evidence made no reference to the relationship. There had been a late avalanche of evidence. There was very little evidence of interactive family relationships. The appellant’s GP records showed his address as Manchester and his bank statements showed transactions in Manchester. There was scant evidence about the children and no evidence of the appellant’s step-father role. The appellant could not meet the requirements of the immigration rules. There was no evidence of financial capabilities. The appellant had failed to show why a temporary separation for him to make an entry clearance application would be disproportionate. The appellant had not made an application on the basis of his relationship, as his application pre-dated the relationship, so he could not benefit from EX.1.

14. Mr Moksud submitted that the appellant and his wife had a genuine and subsisting relationship. The younger child’s school had confirmed that the appellant was recorded as the step-father and residing at the same address, and he was also on their GP records. There was clear evidence that the appellant was contributing to the children’s education and health. Mr Moksud said that the relevant question was whether the appellant could make an entry clearance application to return to the UK, but it was clear that he could not succeed as his wife did not earn sufficient to meet the requirements of the rules. It was questionable if his wife could manage without him and so it was disproportionate to expect him to go back to Nigeria and make an entry clearance application. Mr Moksud submitted that section 117B(6) of the NIAA applied as the appellant had a genuine and subsisting relationship with his wife’s children. There was no public interest in separating the family. The appeal should be allowed.

Consideration and findings

15. No challenge was made to the First-tier Tribunal’s finding at [17] that the appellant could not meet the requirements of the immigration rules because he has not made an application on the basis of his marriage to Ms Sanni. Although Mr Moksud sought to argue before me that the appellant’s protection claim made in 2022 constituted an application, that is not the case for the purposes of Appendix FM paragraph R-LTRP.1.1(b) and was not the finding of the First-tier Tribunal Judge. It has always been the case that the appellant’s Article 8 human rights claim was to be considered outside the immigration rules. It is therefore on that basis that I re-make the decision in this appeal.

16. It was made clear by the Upper Tribunal, in the error of law decision, that the Home Office letter of 3 February 2025 went no further than confirming a decision not to exercise powers to investigate further or to prevent the marriage, and that it did not constitute an acceptance of the genuineness of the relationship or the appellant’s ability to remain in the UK on the basis of his marriage. Those are matters which are for me to decide, in the absence of any decision made by the respondent on the marriage and the appellant’s relationship.

17. Mr Tan did not go so far, in his submissions, as to suggest that the appellant’s relationship with his wife was not a genuine and subsisting one, and that there was no family life existing between them. However his submission was that the quality of the family life was limited, given the dearth of supporting evidence of the family relationships. I have to agree. I accept that there is a genuine and subsisting relationship between the appellant and Ms Sanni and that family life exists in that respect, but on the limited evidence available before me I am unable to accept that the strength of that family life is as claimed by the appellant and Ms Sanni. The evidence originally before the First-tier Tribunal made no mention of the relationship – there was no reference to it in the appellant’s statement of 19 September 2024 or the skeleton argument for the appeal or the original appeal bundle, and it was only in a subsequent appeal bundle filed on 6 May 2025 that evidence of the relationship emerged. Other than a short letter and statement from Ms Sanni providing the most limited details, the marriage certificate and the limited oral evidence of the appellant and his wife, there was no other evidence of the relationship at that time. I note that the appellant’s statement of 19 September 2024 referred to his address being his former address in Manchester.

18. There remains no information as to when and how the relationship began, although the oral evidence of the appellant and his wife was that they moved in together at their current address in November 2024. As Mr Tan submitted, whilst the appellant’s bank statements give his current address as Liversedge, the transactions shown therein appear to have taken place mostly in Manchester, both before and after November 2024, and the GP records show that the appellant remains registered with his GP in Manchester, with no evidence that he has registered with a GP in Liversedge. In addition, the appellant’s educational certificates show him studying in Manchester, a matter that he accepted, with the explanation that he wanted to maintain continuity of his previous studies and that the studies only consisted of two days a week. The only evidence placing the appellant at his current address with Ms Sanni consists of limited additional evidence produced on 30 June 2026 for the appeal before me, namely a letter from Ms Sanni’s youngest child’s school and Ms Sanni’s GP referring to the appellant as the step-father to the children, together with a letter from a local shopkeeper. Although Mr Moksud submitted that the school and GP letters were sufficient in themselves to show the parental relationship between the appellant and Ms Sanni’s children, I agree with Mr Tan that they are of limited weight. The letter from the school is brief and refers simply to the appellant dropping off Ms Sanni’s youngest child on ‘multiple occasions’ over the past year and being recorded as the stepfather, and the GP letter confirms only that he is authorised to take the children to GP appointments. There is nothing from the children’s schools to suggest that the appellant was involved in their schooling or attended parents’ evenings, and indeed the appellant’s own evidence was that he did not attend them. The fact that he is recorded as the children’s step-father and accompanies them on occasions is of little weight in attesting to the role he plays in their lives. The shopkeeper’s letter merely confirms the appellant’s appearance in his shop in Liversedge on occasions. Aside from Ms Sanni’s simple assertion that the appellant is a loving father to her children, there is no evidence to indicate any bond between them and the appellant other than him being the husband of their mother. There was no mention of the children in Ms Sanni’s supporting letter and statement from 2025. There is nothing from the children themselves. There are no photographs of the appellant with the children and no statements from family or friends to attest to the relationships. In such circumstances I am not prepared to accept the word of Ms Sanni and the appellant in isolation as reliable evidence of the relationship between the appellant and her children and the role that he plays in their lives.

19. In the circumstances, and given that the appellant clearly spends much of his time in Manchester, although I am prepared to accept that there is family life between the appellant and Ms Sanni, I am not prepared to accept that the appellant has established a parental relationship with her children. In terms of proportionality, therefore, and the factors within Part 5A of the Nationality, Immigration and Asylum Act 2002, I do not accept the submission made by Mr Moksud that the evidence sufficiently establishes that the requirements of s117B(6) are met.

20. As for the other factors relevant to a proportionality assessment, the fact that the appellant cannot meet the requirements of the immigration rules weighs against him in the balancing exercise, as against the public interest in maintaining an effective immigration control. The strongest point in the appellant’s favour is that family life cannot be carried out in Nigeria, given that Ms Sanni has been recognised by a refugee by the respondent and therefore cannot return there herself. However the appellant cannot rely upon EX.1(b) of Appendix FM in isolation and that is therefore not determinative of his claim, as the First-tier Tribunal Judge erroneously considered it to be. As made clear in the error of law decision, a proper balancing exercise has to be undertaken weighing the factors in favour of the appellant and those against him. The appellant is a long-term overstayer who has been found to have made an asylum claim which lacked credibility. His relationship with Ms Sanni was established when he was in the UK without any leave and therefore carries little weight, as per s117B(4). Although the appellant is, as far as I am aware, supported by Ms Sanni and not dependent upon the state, and speaks English, those are neutral matters in the balance.

21. There is no good reason why the appellant cannot return to Nigeria and make an entry clearance application to join Ms Sanni in the UK. He has been found not to be at any risk on return to Nigeria and the First-tier Tribunal’s finding, that there would be no very significant obstacles to his integration in that country, has been preserved. Despite being asked the question several times by Mr Moksud, Ms Sanni failed to provide any reason why there would be a disproportionate impact on her or her children as a result of a temporary separation to enable the appellant to make an entry clearance application. She was asked several times by Mr Moksud about the difficulties she and the children may face if the appellant was required to leave the UK and each time she referred only to the difficulties arising from the entire family relocating to Nigeria. There is no evidence of any exceptional circumstances which would lead to unjustifiably harsh consequences for the appellant or Ms Sanni and her children if the appellant was required to leave. Ms Sanni managed by herself prior to the appellant’s involvement in her life. She was able to look after the children and provide for them financially and there is no reason why she could not do so again if the appellant returned to Nigeria. On her own evidence her two eldest children go to school by themselves and even her youngest is able to, except on occasions such as when she would return to school late from a school trip. There is no evidence to suggest that Ms Sanni has no other means of support from friends and family for assisting with looking after the children when occasionally needed. Further, and as already mentioned, there is no reliable independent evidence suggesting that the appellant plays any significant role in the children’s lives or that they would be adversely affected by either a temporary or longer term separation from him.

22. It was Mr Moksud’s submission that the appellant would not be able to meet the financial edibility requirements of the immigration rules to enable him to return to the UK, given Ms Sanni’s limited income. However it is not disproportionate to expect him to be able to comply with the financial requirements and it would be open to Ms Sanni to find a better paid job in order to facilitate the application. It may be that the separation is lengthened by the time taken to establish an ability to meet the financial requirements of the rules, but that is not, in my view, disproportionate, given the overall circumstances. In so far as Mr Moksud suggested that the appellant’s departure would impact upon Ms Sanni’s ability to work enough hours to earn the required income, there is no evidence to show that she would be unable to obtain sufficient work and income and no reasons have been provided why she could not do so.

23. Accordingly, given that this is a claim made and considered outside the immigration rules, with all the accompanying requirements and considerations, and on the basis of the very limited evidence before me, I am unable to find any reason for concluding that it would be disproportionate to require the appellant to leave the UK.

DECISION

24. The making of the decision of the First-tier Tribunal involved an error on a point of law and has been set aside. I re-make the decision by dismissing the appeal on all grounds.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 August 2026