Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001291
First-tier Tribunal No: HU/60135/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SK
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Nolan, senior presenting officer
For the Respondent: Mr Bazini, counsel

Heard at Field House on 13 July 2026

Order Regarding Anonymity

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent is granted anonymity. No-one shall publish or reveal any information that is likely to lead members of the public to identify her, including her name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. On 22 January 2026, the First-tier Tribunal allowed the Respondent’s appeal against the Secretary of State’s 12 August 2024 decision to refuse her 15 May 2024 human rights claim, made in the form of an application for entry clearance.

2. Thereafter, the Secretary of State applied for permission to appeal. Permission was granted by the Upper Tribunal on 29 April 2026. The appeal came before me for an error of law hearing on 13 July 2026.

Background

3. The Respondent is a female national of Afghanistan aged 30 years. She applied for entry clearance to join her Sponsor, her brother Mr IJ, as his adult dependant relative. He is a national of Afghanistan aged 28 years who was granted five years’ leave to remain as a refugee on 1 April 2022.

4. In short summary, the claimed circumstances of the Respondent’s application were as follows:

a. The Respondent and Mr IJ are two of three siblings. Their brother, Mr AJ, is also national of Afghanistan. His age is not apparent from the papers before me, though it is said that he is older than Mr IJ. He was granted five years’ leave to remain as a refugee on 24 December 2021.

b. The three siblings lived together with their parents in Nangarhar Province. Then, in around 2006, Mr IJ, Mr AJ and their parents fled the family home because the Taliban wished forcibly to recruit the two boys. The Respondent was left with an uncle.

c. The Taliban caught the family as they fled and abducted Mr AJ. Shortly thereafter, Mr IJ became separated from his parents and then spent several years in domestic servitude. The parents’ whereabouts remain unknown. Mr IJ was able to make his way to the UK and claim asylum in 2012. He was reunited with Mr AJ by social services in around 2013. Mr AJ had also been able to make his way to the UK and claim asylum. Their respective claims both took many years to resolve. Ultimately, Mr AJ’s was granted in 2021 and Mr IJ’s was granted in 2022.

d. The Respondent lived with the uncle until 2020, when he also left the country. Since then, she has been living with a distant relative. Also in 2020, Mr IJ and Mr AJ were able to re-establish contact with the Respondent. Since 2023, when he was able to secure lawful employment, Mr IJ has supported the Respondent financially. She is in a poor state of mental health and has difficulty in accessing adequate treatment under Taliban rule. She is reliant on her brothers for emotional support.

5. In refusing the application, the Secretary of State did not accept that the Respondent and Mr IJ were related as claimed, that the requirements of the adult dependant relative Immigration Rules were met or that the refusal of the application would result in a breach of Article 8 ECHR. The Respondent duly appealed.

6. By the time of the Respondent’s First-tier Tribunal appeal hearing on 5 January 2026, the issues had narrowed. Having considered DNA evidence adduced by the Respondent, the Secretary of State now accepted that she and Mr IJ were related as claimed. For her part, the Respondent accepted that she did not meet the financial requirements of the adult dependant relative Immigration Rules at the date of application. Therefore, it was agreed that the single issue before the Judge was whether the refusal of entry clearance would be disproportionate in breach of Article 8 ECHR.

7. By a decision dated 22 January 2026, the Judge allowed the Respondent’s appeal. In short, the Judge decided that: (1) the relationship between the Respondent and Mr IJ was an Article 8 ECHR family life relationship; and (2) the Respondent’s circumstances taken together meant that the refusal of entry clearance was disproportionate.

8. The Secretary of State applied for permission to appeal on a single ground broadly drafted, namely a “Material Misdirection of Law on a Material Matter”. Permission was ultimately granted by the Upper Tribunal on 29 April 2026, on all of the arguments advanced by the Secretary of State. No rule 24 response was filed on behalf of the Respondent.

Hearing

9. Before me, the documentation was contained in a composite hearing bundle. It was in two sections of 281 and 124 pages, respectively.

10. Mr Bazini applied for anonymity for the Respondent. Ms Nolan did not oppose the application. I acknowledge the importance of the principle of open justice. However, I have decided to make an anonymity order because the Respondent is a lone woman living under Taliban rule and I therefore consider that disclosing her identity could give rise to an unacceptable risk of harm to her.

11. At the outset of the hearing, Ms Nolan agreed with my delineation of the specific errors of law alleged by the Secretary of State which was as follows:

a. Ground 1(a). The Judge misdirected themselves in law as to the correct approach to assessing whether Article 8 ECHR family life existed between the Respondent and Mr IJ.

b. Ground 1(b). The Judge’s conclusion that the refusal of entry clearance was disproportionate was inadequately reasoned.

12. Ms Nolan made oral submissions, which may be summarised as follows:

a. Ground 1(a). The Judge had expressly referred to IA v SSHD [2025] EWCA Civ 1516, [2026] 2 WLR 1001 and correctly stated the legal test for whether Article 8 ECHR family life exists between adult siblings, i.e. “additional elements of dependence involving more than the normal emotional ties” (IA at §60). However, in substance, the Judge misapplied IA by failing to undertake the requisite fact-sensitive enquiry (IA at §119). The Respondent and Mr IJ had not cohabited since around 2006, they had been out of contact between 2006 and 2023, and there was only limited evidence before the Judge of contact since 2023.

b. Ground 1(b). The Judge failed to identify any exceptional circumstances that were capable of rendering the refusal decision unjustifiably harsh and therefore disproportionate.

13. Mr Bazini made oral submissions in response, which may be summarised as follows.

a. Ground 1(a). The Judge had identified and applied the correct legal test. The Judge found that the Respondent’s only immediate family was Mr IJ and Mr AJ and that she placed “greater value” on her relationships with them as a result. Further, the Judge found that she was both financially and emotionally dependent on them, the latter particularly so given her poor mental health state and the difficulty she was facing in accessing adequate treatment as a lone woman under Taliban rule. These were all lawful findings. The Secretary of State’s reliance on IA was misconceived. The Judge had applied IA correctly and the facts of the Respondent’s case were very different to those of IA in any event. This ground of appeal was nothing more than a disagreement with the Judge’s conclusion.

b. Ground 1(b). It was necessary to read the decision as a whole. The exceptional circumstances relied on by the Judge in their conclusion were all of those described in detail earlier in the decision.

14. Ms Nolan made further oral submissions in reply, which may be summarised as follows.

a. Ground 1(a). The Judge’s reasons for finding that Article 8 ECHR family life existed between the Respondent and Mr IJ were not sustainable in light of IA.

b. Ground 1(b). It was not sufficient for the Judge to refer to the Respondent’s “circumstances taken together”; rather, it was incumbent upon the Judge to identify which of her circumstances specifically amounted to the exceptional circumstances that rendered the refusal decision unjustifiably harsh and therefore disproportionate.

15. In terms of disposal, both representatives agreed that, if I were to find a material error of law in respect of either or both of the Secretary of State’s grounds of appeal, the appeal should be retained in the Upper Tribunal for re-making. However, Ms Nolan submitted that a further hearing would be necessary for the decision to be re-made, whereas Mr Bazini submitted that the decision should be re-made without a further hearing.

16. At the conclusion of the hearing, I reserved my decision.

Decision and reasons

Ground 1(a)

17. In my judgment, Ground 1(a) does not disclose an error of law.

18. I remind myself that the First-tier Tribunal is charged with administering a complex area of law in challenging circumstances and it is probable that, in understanding and applying the law in its specialised field, the Tribunal will have got it right (AH (Sudan) v SSHD [2007] UKHL 49, [2008] 1 AC 678, per Baroness Hale at §30).

19. In this case, as Ms Nolan fairly acknowledged, the Judge expressly referred to IA and correctly stated the legal test for whether Article 8 ECHR family life exists between adult siblings, i.e. “additional elements of dependence involving more than the normal emotional ties” (IA at §60). Indeed, the Judge correctly stated the test twice, at both §§11 and 19.

20. As for the correct approach to the application of this test, the Court of Appeal held in IA that the “exercise of deciding whether there are the necessary additional elements of dependence involving more than the normal emotional ties is a fact-sensitive exercise that is to be decided on a case-by-case” (§119) and, beyond that, “it is undesirable to lay down hard and fast rules as to how the additional elements of dependency test should be applied” (§125).

21. I do not accept Ms Nolan’s submission that the Judge misapplied IA by failing to undertake the requisite fact-sensitive enquiry. On the contrary, I consider that the Judge undertook a careful, individualised assessment of the relationship in question and all of the relevant circumstances of the case (see Kumari v The Netherlands (44051/20) (10 December 2024) at §43, cited with apparent approval in IA at §50).

22. In concluding that there were additional elements of dependence involving more than the normal emotional ties between the Respondent and Mr IJ, such that they shared an Article 8 ECHR family life relationship, the Judge took the following factors into account.

a. The Judge accepted that the Respondent was living in Afghanistan without any members of her immediate family, that her parents had been missing for many years, and her brothers (i.e. her only remaining immediate family members) were both in the UK (§12). She was thus “a lone woman in Afghanistan” (§13).

b. The Judge accepted that Mr IJ had manage to re-establish contact with the Respondent in 2020 and had been supporting her financially since 2023, when he was able to secure lawful employment (§13). The Judge found that “there is financial dependency, and […] the appellant currently requires the support of the sponsor to meet her essential living needs, at least in part” (§16).

c. As for the level of emotional dependency, again, the Judge noted that the Respondent’s brothers (i.e. her only remaining immediate family members) were both in the UK. The Judge referred to evidence of contact between the Respondent and Mr IJ by WhatsApp and noted that it had not been suggested that they were not in contact as claimed. Further, the Judge found that “Being without her parents, and living with a distant relative, I accept the appellant will place greater value on the relationship with the sponsor, being one of two immediate family members she is in contact with” (§17).

d. The Judge further found that the Respondent’s “poor mental health will be a factor which increases her [emotional] dependency upon the sponsor” (§18). The Judge referred to extensive medical evidence concerning the Respondent’s mental ill-health, including evidence from a psychiatrist and a specialist in mental health diseases (§18). The Judge accepted that the Respondent “spends most of her time in a room crying” and “needs to be prompted to eat, and to wash and change her clothes” (§19). The Judge also accepted, based on evidence contained in the Secretary of State’s ‘Country policy and information note: healthcare and medical treatment, Afghanistan’ (October 2025), that the Respondent would face “difficulties with obtaining the medication required […] for an improvement in her mental health” as a lone woman in Afghanistan (§20).

e. More generally, the Judge noted that the Respondent is “is a woman in Afghanistan, with all of the difficulties and restrictions imposed by the Taliban” (§19).

23. For the avoidance of doubt, the Judge was perfectly entitled to take these factors into account. In particular, the Court of Appeal held in IA that “financial dependency and dependency created by physical or mental disability both play a part in the evaluation” (§120).

24. I am satisfied that the Judge identified the correct test, applied it correctly and reached lawful conclusions. Respectfully, I accept Mr Bazini’s submission that this ground of appeal is nothing more than a disagreement with the Judge’s conclusion.

Ground 1(b)

25. In my judgment, Ground 1(b) does not disclose an error of law.

26. I remind myself that the decision must be read as a whole and in context, purposefully, with the object of obtaining an understanding of the decision and its basis; it should not be read or construed in a manner more appropriate to a contract or statute (MN (Vietnam) v SSHD [2026] EWCA Civ 485, per Dove LJ at §35). What is required is a “straightforward down to earth reading” (Clarke Homes Limited v SSE [1993] 66 P&CR 263 (CA), per Lord Bingham MR, as he then was, at p.272).

27. Ms Nolan did not seek to suggest that the Judge’s summary of the relevant legal framework at §10 was in any way incorrect:

“The question is whether the refusal breaches the appellant’s right to respect for private and family life under Article 8 ECHR. That right is qualified. The appellant must establish on the balance of probabilities the factual circumstances on which they rely and that Article 8 (1) is engaged. If it is, then I have to decide whether the interference with the appellant’s right is justified under Article 8 (2). If an appellant does not meet the immigration rules, the public interest is normally in refusing leave to enter or remain. The exception is where refusal results in unjustifiably harsh consequences for the appellant or a family member such that refusal is not proportionate. I take into account the factors set out in s.117B Nationality Immigration and Asylum Act 2002 and balance the public interest considerations against the factors relied upon by the appellant.”

28. At §25, the Judge reached the following conclusion on the issue of proportionality:

“I have taken into account the public interest in maintaining effective immigration control, and I bear in mind the appellant did not meet the Immigration Rules at the time her application was made, and I would not have found she satisfies them at the date of the hearing. Nonetheless, I find the appellant’s circumstances taken together mean the decision to refuse her entry is a disproportionate interference with her right to family life with the sponsor.”

29. Though briefly-stated, I consider that the Judge’s reasoning was clearly intelligible and enabled the reader to understand why the matter was decided as it was (see South Bucks District Council v Porter (No. 2) [2004] UKHL 33, [2004] 1 WLR 1953, per Lord Brown at §37). The Judge took into account the public interest in maintaining effective immigration control and the Respondent’s failure to meet the requirements of the Immigration Rules. Nevertheless, they concluded that “the appellant’s circumstances taken together” – i.e. all of the (exceptional) circumstances previously stated – meant that the refusal of entry clearance would be unjustifiably harsh and so disproportionate. I note that all of the Judge’s findings appear under the sub-heading “Are there exceptional circumstances which would render refusal a breach of Article 8?”, above §11. Thus, it can readily be inferred that all of the reasoning that follows was intended to be relevant to the resolution of that issue (i.e. proportionality).

30. In short summary, the exceptional circumstances on which the Judge relied were that: (1) the Respondent was a lone woman living in Afghanistan under Taliban rule without any immediate family members, her parents having been missing for many years (§§12-13); (2) the Respondent placed “greater value” on her relationships with Mr IJ and Mr AJ as a result of them being her only remaining immediate family members (§17); (3) the Respondent was financially dependent on Mr IJ (§16); (4) the Respondent was in a very poor mental health state and that was unlikely to improve given her circumstances and the difficulty in accessing adequate treatment as a lone woman under Taliban rule (§§18-19); (5) the Respondent was emotionally dependent on her brothers (§§17-19); and (6) Mr IJ was in a position to adequately maintain the Respondent without recourse to public funds (§24).

31. I am satisfied that, when the decision is read as a whole and in context, the Judge’s conclusion on proportionality is adequately reasoned.

Conclusion

32. For the reasons set out above, I dismiss the Secretary of State’s appeal. The decision of the First-tier Tribunal does not contain any material errors of law and so it stands.

Notice of Decision

The appeal is dismissed. The decision of the First-tier Tribunal does not contain any material errors of law and so it stands.

B. Hoshi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 September 2026