Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001347
First-tier Tribunal No:
HU/01925/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE NAIK KC

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FOS (anonymity order made)
Respondent

Representation:
For the Appellant: Mr Ojo, Senior Home Office Presenting Officer
For the Respondent: Ms Wass, Counsel

DECISION AND REASONS

Heard at Field House on 26 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, consistent with and for the reasons given in the order made below in the First-tier [paragraph 4].

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
Introduction
1. This is an appeal by the Secretary of State for the Home Department (SSHD) ‘the Appellant’ against the determination of the First-tier Tribunal Judge Latta (the Judge) who allowed the Respondent’s appeal against the decision of the SSHD of 11 September 2024 refusing her human rights claim on Article 8 ECHR grounds in a determination dated 30 December 2025. Permission to appeal was granted by FTTJ Rodger on 13 March 2025. There was no rule 24 response from the Respondent to the notice of appeal filed with the Tribunal.
Background
2. The Respondent is a citizen of Eritrea (DOB 01.02.2008). On 09 May 2024 the Respondent a minor then aged 16 made an application for entry clearance under the Family Reunion (Protection) Rules to join the sponsor in the UK who is a recognised refugee. This was refused by the SSHD in a decision dated 2 October 2024 on the basis that the requirements of the immigration rules were not met and there was no breach of Article 8 ECHR.
3. The issue between the parties was whether or not the Sponsor was the legal guardian of the Respondent. The SSHD accepted that in principle that a legal guardian could be a parent for the purpose of the Family Reunion rules.
4. The sponsor is the only sibling of the Respondent and it was accepted that both of her parents have died when she was aged 4.
5. In the in the decision letter the Secretary of State stated that on the 9th of May 2024 the Respondent made an application for entry clearance to the UK under Appendix Family Reunion (Protection) of the Immigration Rules on the basis that you are the child of your sponsor who has protection status or settlement on a protection route in the UK. She concluded that the Respondent did not qualify for entry clearance on that route. For the following reasons.
“You have told us that you are the child of Simon Okubay. I have therefore considered whether your application meets the relationship requirements. You do not meet the relationship requirements because you are not the child of your sponsor. By your own account, your sponsor is your older sibling.
You are an applicant under the age of 18 applying to join your sibling who has leave to remain until the 5th of May 2027. FRP 4.1 and 5.1 of the Immigration Rules only allows for a spouse or partner and children under the age of 18 to be issued entry clearance to join their sponsor in the UK. Therefore your application fails to meet these requirements…
I have considered on the basis of the information provided whether there are exceptional circumstances in your case which would mean that refusal of your application is a breach of Article 8 [ECHR] because it would because it would result in unjustifiably harsh consequences for you or your family.
I am not satisfied that it would be a breach of Article 8 to refuse your application. It is noted that in their LTR claim, your sponsor claims to have left Eritrea in January 2015, nearly 10 years ago, and the only evidence of a relationship from this time period submitted with their application is a brief untranslated message log. I therefore have no reason to believe why you cannot continue this arrangement.
Having regards to the above discussed factors. I am satisfied there is not a day-to-day bond between you and the sponsor which goes beyond the normal ties of siblings and that in these circumstances the Article 8 rights of the sponsor in the UK are not engaged.
Furthermore, you failed to provide any evidence that would give reason as to why the sponsor cannot visit you in a neighbouring country and support you from there, especially as on the 05/10/2023, the sponsor has been issued with a Travel Document. There is therefore no evidence to suggest that you and the sponsor cannot create a life together in a neighbouring country should you wish to do so. Therefore, a refusal to reunite you and the sponsor would not constitute a disproportionate breach of your family life in accordance with Article 8 ECHR….
I am satisfied there are no circumstances which would make this refusal a breach of Article 8, nor would the refusal result in unjustifiably harsh consequences for you or your sponsor.
Your entry clearance application under Appendix Family Reunion (Protection) route to the Immigration Rules has therefore been refused. You have not raised any compelling compassionate factors. Therefore, I have not considered you for a granted permission outside of the requirements of the immigration Rules (LOTR).”
6. In the skeleton argument before the Judge at paragraph [3] it was submitted to him by the Respondent that there is an alternative route to entry under Appendix Child staying with or joining a Non-Parent Relative (Protection)(“CNP”)) and that the Tribunal has jurisdiction to consider the alternative route since the best interests of the child are a primary consideration, those interests are best served by reuniting the family without further delay, family reunion has been suspended with effect from 4 September 2025 (apart from application made before this date), and no prejudice or unfairness to the respondent arises given the issues are similar and the substance of the claim is considered in the refusal.
7. I note that Under Appendix CRP, a child may apply for either entry clearance or permission to stay with or join their close relative who has protection status in the UK and is not settled. Hence this is clearly not applicable to the circumstances in this case. However the relationship requirements are:
CRP 4.1. The decision maker must be satisfied that the applicant has an existing, genuine family relationship with their close relative in the UK1; and per CRP 4.2. the person with protection status in the UK must be a close relative of the applicant. Moreover per CRP 5.1.
8. NB Under that rule the close relative in the UK must be able to provide adequate maintenance and accommodation for the applicant without reliance on public funds, and per CRP 5.2. The applicant must provide evidence of funds as specified in Appendix FM-SE.
Findings of the Judge
9. The Judge found that the Sponsor’s evidence which was tested in cross-examination was candid and credible (paragraph 28 and 29). He noted that the veracity of the guardianship order was not challenged in the SSHD’s decision letter and he concluded that the Sponsor was on balance of probabilities the legal guardian and that therefore he is the parent of the Respondent for the purposes of Appendix Family Reunion and that the requirements of FRP 5.1 were met (paragraph 33).
10. In the alternative he found that even if the Respondent did not qualify as the child of the sponsor that it would be possible for her to qualify under paragraph FRP 7.1 of Appendix Family Reunion, which makes provision for where those who do not qualify under the rules including 5.1 that the decision-maker must consider whether there are exceptional circumstances which would make refusal a breach of Article 8 ECHR because it would result in unjustifiably harsh consequences (para 34). At paragraph 35 her concluded that even if his view the Sponsor could be classed as the parent of the Respondent was incorrect then the evidence points to the Sponsor being her de facto parent. He found that there were exceptional circumstances in this appeal that would make refusal a breach of Article 8, due to the refusal resulting in unjustifiably harsh consequences for the Respondent and the Sponsor (paragraph 36). Hence in the alternative he concluded that the requirements of 7.1 were met (paragraph 37).
11. In the further alternative the Judge evaluated the case under Article 8 ECHR extensively (paragraphs 38 to 58) including with reference to TZ (Pakistan) v SSHD [2018 EWCA Viv 1109 at [34] in respect of where the requirements of the rules are met then this will be positively determinative of the Article 8 appeal. He concluded at paragraph 59 that on the facts of this case, balancing in the private interests of the Respondent as against the public interest and public policy in maintaining immigration control, the balance is un favour of allowing the application given the strength of the Respondent’s Article 8 case.
12. Hence, he allowed the appeal on human rights grounds (which of course was the only ground open to him under section 84(1)(c)).
Grounds of Appeal
13. The SSHD appealed on three grounds:
(i) (a) That the Judge had erred in concluding that Sponsor could be treated as the parent of the Respondent under paragraph FRP 5.1 based on a guardianship order as it was not a formal adoption order and does not render a guardian a “parent” for the purposes of FRP 5.1.
(b) The immigration rules draw a clear and deliberate distinction between biological parents and parents by way of formal adoption under the rules and that distinction was not respected by the FTT.
(c) Hence the judge misapplied paragraph 5.1 by conflating legal guardianship and concluding that the Respondent met the requirements of the Immigration Rules when on his own findings, she did not and that finding was determinative of the appeal outcome and was not legally sustainable.
(ii) In the alternative the Judge’s conclusion on FRP 7.1 were perverse or irrational.
(iii) (a) Further his findings on Article 8 ECHR from paragraph 38 were materially flawed. The Judge failed to apply the principles confirmed by the Court of Appeal in IA and others and did not properly identify the family life relied on. The FTT failed to recognise that the Sponsor and not the Appellant should have been the primary family life assessment. The Judge failed to clearly articulate the test for establishing family life beyond normal emotional ties nor explain how the test was met on the evidence. The proportionality assessment was internally inconsistent at [52] to [59] and the reliance on the Appellant meeting the rules and in turn on TZ was legally flawed.
(b) Finally, his findings at [59] and reference to the private interests of the Appellant was in conflict with the Court of Appeal in SSHD v Abbas [2017] EWCA Civ 1393 and the necessary jurisdictional requirement which was absent for a person who has never lived in the UK. Hence this was a material misdirection of law.
14. In granting permission to appeal, FTTJ Roger granted permission to appeal on all three grounds stating in Ground one, the respondent contends that the judge materially misdirected himself by concluding that the sponsor could be treated as the parent of the appellant for the purpose of FRP 5.1 based on a guardianship order. At paragraph 31, the judge notes that the HOPO conceded that the sponsor could qualify as the parent of the appellant, but it was maintained that the guardianship document was not reliable. At paragraph 32, the judge found that the sponsor is the legal guardian of the appellant and accepted the HOPO’s concession. FTTJ Rodger concluded:
(i) It is arguable that the judge erred in accepting that a legal guardian can qualify as a parent under FRP 5.1 as no legal adoption had taken place.
(ii) It is arguable that any concession made by the HOPO is not binding on the respondent if it results in an error in the. Application of the immigration rules.
(iii) It is also arguable that the assessment under paragraph FRP 7.1 did not make clear findings as to why there were unjustifiably harsh consequences for refusal of entry clearance, and it is arguable that the Article 8 assessment was affected by the findings relating to FRP 5.1 and 7.1, for which permission has been granted.
Legal Framework
15. The immigration rules per HC217 laid on 10 September 2024 are the relevant rules at the date of decision.
16. In the interpretation section of the rules at Paragraph 6.1. In these rules, unless the contrary intention appears, references to paragraphs are to paragraphs of the Immigration Rules (HC 395 as amended):
“Parent” means:
(a) biological parent; and
(b) legal parent, including birth mother where the child is not genetically related, spouse or civil partner of the birth mother at the time of the child’s birth, and person with a parental order under section 54 Human Fertilisation and Embryology Act 2008; and
(c) adoptive parent:
(i) who, when habitually resident outside the UK, adopted a child in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK; or
(ii) whose adopted child has been granted permission under Appendix Adoption, and, if applicable, the adoption has been formally completed in the UK.

“Child” means a person who is aged under 18 years….
17. Relationship requirement for a child applying for Family Reunion
FRP 5.1. The applicant must be the child of a person (P) who has protection status or of P’s partner
18. Eligibility requirements for Family Reunion based on Article 8 European Convention of Human Rights (ECHR)
FRP 7.1. Where an applicant does not meet the requirements for a partner under FRP.4.1. or for a child under FRP.5.1. to FRP 6.2., the decision maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would make a refusal of the application a breach of Article 8 of the ECHR, because such refusal would result in unjustifiably harsh consequences for the applicant or their family member, whose Article 8 rights it is evident from the information provided would be affected by a decision to refuse the application.
19. I note that the definition of who could be a ‘legal parent’ is followed by the word “includes”. This version was changed on 10 September 2024 by HC217 Statement of Changes.
20. After the hearing in response to oral directions yesterday, Mr Ojo filed a copy of the archived rules applicable to the date of the Reasons for Refusal letter on 11 September 2024.
Submissions
21. For the appellant SSHD Mr Ojo relied on the grounds of appeal filed.
22. The SSHD submits that the Judge misdirected himself in law in stating that the sponsor as a de facto parent met the requirements of the rules. It was submitted that this issue could be cleared up by reference to paragraph 6 of the Immigration Rules as they were at 2 October 2024 which give a clear definition of the parent. It was accepted that at the date of application paragraph 6 was more expansive.2 He submitted that at the date of decision there were three main definitions what constituted a parent and de facto parent under the rules and that the guardianship order does not form any part of those categories. Therefore the Respondent cannot meet the requirement of the immigration rules.
23. Mr Ojo submitted that the concession at paragraph 14 that a legal guardian could be a parent under paragraph 6 was wrong and that this was not contained in the decision letter. He relied on MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 351 headnote 3(iv) for the proposition that if the SSHD makes a concession, but for example the immigration rules state the contrary, then that if the position is wrong in law it will lead to a material error:
(IV) An application to withdraw a concession may be more readily found to encompass good reasons if the concession has resulted in a decision which is demonstrably wrong in law. An example may be where a concession has resulted in a manifestly incorrect interpretation of the relevant Immigration Rules.
24. Mr Ojo further submitted that with reference to para 35 of the determination that the Judge had looked at the case in the alternative. The Judge essentially based his finding that the sponsor was a de facto parent on the basis that he found that the sponsor was credible witness at paragraph 28 and 30 and the reasons for refusal letter did not challenge the veracity of the guardianship order. At para 16 and 17 the PO had made submissions on the point that between 2015 and 2024 that the Sponsor’s wife had cared for the Appellant. He noted that at paragraph 17 it was submitted there was limited evidence of ongoing contact and there was limited evidence of financial transfers.
25. Mr Ojo also submitted that the SSHD had challenged the determination on the basis of inadequate reasoning but also failure to resolve a conflict of evidence in relation to exceptional circumstances and unjustifiably harsh consequences (Ground two).
26. His submission was that given the errors the entirety of the decision should be set aside with no findings preserved and remitted to the First-tier Tribunal.
27. He noted that there were no express reasons by the Judge as to why the situation vis a vis sponsor and respondent could not continue as noted in decision letter at page 128:
… consequences for you or your family. I am not satisfied it would be a breach of Article 8 of the ECHR to refuse your application. It is noted that in their L TR claim your sponsor claims to have left Eritrea in January 2015, nearly 10 years ago, and the only evidence of a relationship from this time period submitted with your application is a brief and untranslated message log. I therefore have no reason to believe why you cannot continue this arrangement. Having regard to the above discussed factors, I am satisfied that there is not a day-today bond between you and the Sponsor which goes beyond the normal ties of siblings and that in these circumstances the Article 8 rights of the Sponsor in the UK is not engaged.
28. His submission was that this was a straightforward matter: if the Judge’s view was that the Respondent’s circumstances were so extreme such as to demonstrate unjustifiably harsh circumstance this should have been clearly expressed and it was not. This goes back to the Judge’s finding on the guardianship order and his reliance on that, there were no findings as to why that situation as to adoption could not continued.
29. The Judge had concluded that the Respondent had not challenged the veracity of the guardianship order but the SSHD had not conceded the reliability of the order. Whilst the decision letter could have been better expressed, and authenticity was not challenged per Tanveer Ahmed, there was an implicit challenge to the reliability of the guardianship order.
30. There was limited evidence of the relationship between the sponsor and respondent based on brief and untranslated messages. This was an implicit challenge in the decision letter, for 10 years there is limited evidence of relationship.
31. Mr Ojo further noted that the respondent’s skeleton argument arrived on the day of the hearing, and there at paragraph 7 this addresses the status of the guardianship order as part of the evidence as to relationship.
32. The Judge failed to take into account the SSHD’s submissions at paragraph 20 of the determination.
33. As to ground three, Mr Ojo relied on the judgment of the Court of Appeal in SSHD v IA [2025] EWCA 1516 at [125] that family life is usually limited to core, cohabiting family and that additional elements of dependency were required not the test of real committed or effective support. He submitted that the Judge had materially erred at paragraphs 41 and 42 of the determination with reference to and reliance on Kugathas. He found that there is a dependency between the appellant and the sponsor that is real, committed and effective, which has existed since 2012, at which time the appellant was only four years old. The appellant is still a minor, and the sponsor is her only sibling. The sponsor fled Eritrea in 2015 but continued to exert control over the key decisions in the event's life, including her fleeing Eritrea. And assisting in finding temporary accommodation in Uganda. As a result, in my opinion, the family circumstances go beyond normal emotional ties. Based on the judge’s findings he has found the sponsor to be a de facto parent. Because there are problems with this findings for the reasons already outlined that affects the question of the true test re: dependency which is not clear cut.
34. Mr Ojo submitted that the Judge at paragraphs 53 and 55 of the determination further erred in finding that the Appellant met the requirements of the immigration rules and the Judge reiterates this error in his application of TZ(Pakistan).
35. Ms Wass for the Respondent submitted as to ground one that it had been advanced by counsel at the appeal that the definition of parent did not restrict the definition of parent so as to exclude a guardian. There has been a clear finding on that by the Judge. She agreed that the definition is as Mr Ojo submits, hence the only argument is whether a legal parent can include an adoptive parent as here with a guardianship order which the Judge accepted as genuine and reliable.
36. Ms Wass noted that the submissions from the SSHD made today go well beyond what is set out in the grounds of appeal, in particular the Respondent’s relationship to the sponsor.
37. As to ground 2 as to what the Judge has failed to reconcile the guardianship document, he dealt with this at paragraph 15 of his determination. The decision letter did not deal with this document, and nor did the skeleton argument make the bold assertion that the document was accepted. Hence the SSHD is raising this issue for the first time and after the veracity of the document was not challenged before the Judge by her. Beyond the question of whether the document is real , there was no expert or essentially verification as to its validity or status. As Mr Ojo notes the SSHD did not go that far. In any event the Judge does reconcile this position at paragraph 30. The Judge correctly says that it was not challenged before in the decision letter and indeed he finds that the sponsor was a credible witness. There were formal court proceedings which recorded and placed the Sponsor as Respondent’s legal guardian. In paragraph 6 at page 42 of his appeal witness statement at page 141, this document gave the sponsor legal responsibility for the respondent.
38. Moreover this was not in issue before the appeal hearing. It became an issue in the appeal hearing. That issue has been dealt with by the Judge. He made findings made in relation to that document. The Judge did not simply say that was not in issue before so I accept it, rather he says he has seen no evidence fraud and that he found that the sponsor is credible and therefore weight can be placed on the document.
39. Even if the Tribunal does not agree that the definition includes someone such as the sponsor, the judge still goes on to consider what the alterative situation is in paragraph 34, the Judge addresses what happens if the Appellant does not succeed in qualifying under the rules as a child i.e. under 5.1 to 6.2.
40. Hence she submitted that this was not a material error in this instance because the Judge specifically looks at the circumstances if he had erred in finding that the rules were met. Although the Judge does make to reference to TZ, he goes further. The Judge then went on to look at the Article 8 balancing exercise. His finding that the rules are met influenced the balancing exercise under Article 8. However the question is whether this was in fact material.
41. The Judge adopted the balance sheet approach if 5.1 was not determinative. As the Judge states that if he were legally wrong to find that 5.1 was met, he noted that the SSHD did not challenge the sponsor as the de facto parent for the appellant. The caselaw clearly establishes that it is possible for an adult to have parental responsibility for someone who is not their biological child who is under 18 and that is an additional level of dependency as now required by IA and the Judge referred to the Kugathas test.
42. Whilst the Judge did not go into detail go through every submission in the determination it is clear that the findings that he accepted the submissions that were made on behalf of the appellant at paragraph 34 with reference to FRP 7.1.
43. It was contended that the sponsor supports the appellant financially, emotionally, and morally. He makes the important decisions in the life of the appellant including her living arrangements and that this is unsurprising given the death of their parents, he is the older sibling, and the existence of the legal guardianship order. They lived together as a close family unit with the sponsor’s wife until the sponsor fled Eritrea in 2015 to avoid indefinite national service. Ground two required the SSHD to meet the high threshold of irrationality which she could not make out. The structured approach did not necessarily need to taken by the Judge given that he found that the requirements of the rules were met. Under Article 8 he addresses the section 117 factors and Razgar. Finally his decision was not entirely dependent or materially or dependent on his alternative finding that the definition in 5.1 being met.
44. The SSHD’s position in the decision letter was that there was nothing before the tribunal to show that the current care arrangements could not continue. However on the case and evidence as presented by the Sponsor at the appeal hearing and on the evidence before the Judge contained in the witness statements the respondent’s current temporary care giver could no longer continue. He accepted that evidence. The respondent and the sponsor’s wife left Ethiopia together but they have now become separated and the wife has left Uganda for Kenya, as she could not be registered by UNCHR, and the sponsor is now in the UK. The respondent was moved to Uganda by the sponsor with a view to her seeking entry to the UK and is cared for by a temporary carer. The position set out is credible and the evidence as to the respondent’s situation in Uganda was resolved by the Judge. The SSHD’s position asked why cannot this continue as it was, however, the Judge accepted the respondent’s account and evidence on this.
45. The SSHD’s grounds say that the sponsor should have been the focus, but emotional dependency flows both ways and the impact on the sponsor in the UK. In any event in paragraph 58 the Judge does address unjustifiably harsh consequences and emotional dependency. He noted that the sponsor has no right to reside to live with the appellant in Uganda. Ms Wass submitted that Article 8 is mirrored within paragraph 7.1 of the immigration rules.
46. In reply, Mr Ojo submitted that the information relied on by the Judge under paragraph 7.1 comes later in the decision under Article 8 and that this was not dealt with by the Judge under the rules with reference to paragraphs 34 to 36. Hence, he contends that this is inadequately reasoned and that the Judge does not resolve the conflict as to the limitation of the evidence which was not dealt with by the Judge there. He accepted that paragraph 7.1 of the rules does take account of the public interest by reference to the test of “unjustifiably harsh”.
Analysis
47. This is an unfortunate way for this appeal to have proceeded by way of a legal concession under the immigration rules at the hearing before the Judge which was only very belatedly before me withdrawn.
48. In my judgment the SSHD’s ground one of appeal is made out however for the reasons I set out below, the SSHD’s appeal is dismissed on grounds two and three and hence the error on ground one is not material.
49. I note that the respondent’s submissions are recorded by the Judge at [27] that all aspects of the rules under appendix FR(P) could be met apart from the relationship requirements, by that I take it to mean that she was not the child of the sponsor (as noted by the SSHD in the decision letter. However, the respondent went on to submit that the Sponsor could come within the definition of parent as the legal guardian of the respondent his younger sister. In doing so the respondent relied on the wording of the SSHD’s guidance on that “proof of relationship” can be established by “adoption orders or court documents (where the child is not a biological child”). As a result, as recorded by the Judge, the respondent argued that the sponsor could qualify as a parent. First this can only have been as an “adoptive” parent under 6 (c )(i) as no other limbs were capable of being applicable. In my judgment this conclusion cannot be seen isolation of the wording of the immigration rules themselves.
50. First as to ground one in my judgment although the issue of the status of the guardianship order and its relevance to the immigration rules was not raised in the decision letter, it is relevant to the determination of whether the sponsor is or can be properly regarded as a legal parent that the Appendix FR rules under make provision for biological parents; legal parents, and adoptive parent within the formal requirements set out there, but not de facto parents nor non-parent relatives of child applicants (which are made provision for in other parts of the rules (as noted above).
51. Whilst the SSHD accepted before the Judge that in principle that a legal guardian such as the sponsor could be a ‘parent’ for the purpose of the Family Reunion rules, she did not accept that the rules were met here on the basis she did not accept that there was a relationship of dependency between the sponsor and the respondent despite the existence of the guardianship order, even if that were a genuine document.
52. The SSHD’s contention before me was that any legal guardian would have to meet the requirements of the adoptive parents rules out above at 6 (c) (i). Hence whilst the Judge reached his own conclusions (which I find) he was entitled to as to the veracity of the document and that the sponsor was indeed the legal guardian of the respondent at [32], it does not follow without more that the sponsor is therefore the parent of a child adopted in accordance with a decision taken by the competent administrative authority or court in a country whose adoption orders are recognised by the UK.
53. Further whilst I note the word “including” in rule 6 (b) re: legal parents, this does not in my view permit a wider interpretation there to allow for the inclusion of a person with a legal guardianship order under rule 5.1.
54. The issue between the parties was whether or not the Sponsor was the legal guardian of the Respondent. That issue has been resolved in the Sponsor’s favour but it does not resolve the issues in the appeal, namely whether the respondent can succeed under the immigration rules 5.1 (she cannot as I have found above), or in the alternative under rule 7.1, and/or Article 8 ECHR.
55. By contrast this on the facts of this case, the findings as to the Sponsor being the respondent’s legal guardian and de facto parent however could clearly in my judgment properly form the foundation of the appeal under rule 7.1. Here the findings by the Judge both as to the veracity of the guardianship document and his credibility findings as to the evidence of the sponsor clearly support that conclusion that there was a relationship of additional dependency between the sponsor and the respondent.
56. In relation to ground one I accept the principles relied on by Mr Ojo in MH, and further note that set out at V and VI:
(V) In the assessment of whether good reasons exist, prejudice to the party who benefitted from the concession is always to be considered. Prejudice will generally harden over time and particularly if an appeal has been wholly decided on the strength of a concession. A concession which effectively disposes of an appeal is an important factor weighing against the existence of good reasons. The withdrawal of such a wholesale concession will often involve significant prejudice to the affected party and the wider interests of justice because it necessarily undermines the principle of finality and legal certainty in final decisions of the tribunal. In adversarial proceedings, the considered position of a party not to contest an appeal weighs heavily. Where there is no prejudice, justice may require a concession to be withdrawn if it should never have been made but bad faith is likely to prove fatal to any application.
(VI) The party seeking to withdraw a concession is under a procedural duty to clearly and expeditiously apply for the tribunal's permission to do so and must clearly set out their claimed good reasons which will necessarily involve a clear articulation of why the concession was made (supported by evidence if not agreed between the parties), why the concession was wrong and the extent of any prejudice.
57. As noted above, the concession before the Judge was not withdrawn in the grounds of appeal, nor following the grant of permission to appeal, nor was it made until the day of the hearing. Whilst this is not the responsibility of Mr Ojo, the SSHD as the appellant in this appeal and given how she frames her case, does bear the responsibility for the concession and the consequences of the late withdrawal. Whilst I accept that this falls within the terms of Headnote 3(IV) of MH, namely that it is a concession as to the rules which is incorrect as a matter of law, it would be capable of sounding in costs.
58. As to ground two however and his findings in respect of paragraph 7.1 of the rules in my judgment the Judge was entitled to find as he did that:
(i) The sponsor as her only sibling is the legal guardian of the respondent
(ii) That the sponsor is her de facto parent following the death of both of their parents in 2012 when she was 4 years old
(iii) They resided together from 2012 to 2015 until the sponsor fled the country
(iv) The respondent is now a vulnerable 17 year old girl living with a carer in accommodation in Uganda temporarily which was arranged by the sponsor
(v) There is ongoing and regular contact between the sponsor and respondent, they speak every couple of days [58] and he was providing her with ongoing support and there was two way emotional dependency
(vi) That he was in any event her legal guardian as noted in the document dated 18 December 2012
(vii) It is not reasonable to expect the sponsor as a recognised refugee in the UK to move to another country to live with her and in any event he has no right to live in Uganda where she is currently residing [58]
(viii) Those findings demonstrated that there were additional elements of dependency, such that refusal was capable of breaching the sponsor’s Article 8 rights
59. Whilst the Judge was clearly influenced by the concession that has now been withdrawn by the SSHD that the ability of a legal guardian to satisfy the rule 5.1, that concession does not infect his findings under 7.1. At paragraph 35 he states: “Even if this is incorrect then in my view all of the evidence before the Tribunal points to the Sponsor being her de facto parent”, i.e. a person who does not satisfy the definition under 5.1. This does not arise from the SSHD’s concession. It was in those circumstances, i.e. de facto dependency as parent and child, that the Judge found that there were unjustifiably harsh consequences for the respondent and the sponsor occasioned by the refusal.
60. The sponsor’s evidence which the Judge accepted as credible set out in his witness statement from paragraphs 9 to 20 where addressed the reasons for refusal letter:
9. In relation the length of period we lived apart: The ECO failed to understand that it was not our choice to live apart, we were forced to live apart due to the Eritrean regime action. I also left my sister with my wife who took full responsibility to look after my sister. My wife and my sister attempted to leave Eritrea unfortunately they were caught by the Eritrean border control unit. My sister managed to escape, but my wife was arrested. My wife have now managed to escape and left the country. My wife submitted family reunion application and the application is pending. I confirm that I am responsible for the day to day activities of my sister and all decision relating my sister is done by myself.
10. In relation why I was unable to visit my wife in Uganda: We were hoping that my sister application will be successful and my sister will join me in the United Kingdom. Unfortunate the application was refused, I have travelled to Uganda to be with my sister and I made all the necessary temporary arrangement for my sister stay in Uganda.
11. In relation my sister why the temporally living arrangement cannot continued. I provided witness statement from the person who temporary looking after my sister, but the ECO failed to consider the evidence provided.
12. In relation adequate maintenance, I am working and earning sufficient finance to support my sister. I produced salary payslips and bank statement 13.1 confirm that after our parents deceased I took full responsibility and I looked
13. I confirm that after our parents deceased I took full responsibility and I looked after my sister, I was forced to leave the country.
14. I continued to support my sister financially and emotional. I also make all decision relating my sister.
15. In relation seriously and compelling family or other consideration, I am the only responsible adult have my sister in these world. My sister was unable to continue to live in Eritrea and forced to leave Eritrea. As the current country information confirm Uganda and especially for Eritrean refugee is not safe. My sister took risk to leave Eritrea in order to join me in the United Kingdom and I am restless and concern my sibling safety.
16. I confirm that my sister is only staying temporally with the person I arranged named Andaom Weldeabzgi Habteyponas. I am the only person who is making all decision relating my sister.
17. I confirm that I maintained and continued contact with my sister and a single day never passed without remembering and concerning about my sister. We are dearly missing each other and we cannot wait the day to reunite with my sister.
61. The evidence of the respondent was that she travelled the difficult and dangerous journey to Uganda in order join her brother in the United Kingdom. Her brother supports her finically, emotionally and morally. When she submitted application to join her brother, her application for family reunion was refused she was devastated and was unable to cope with life in Uganda. She stated that she has nothing in Uganda, no job, no education and that she is just waiting for her brother Simon to send her money every month which she is surviving on. She stated that she lives every day in fear because, her brother’s friend Andom who is looking after her, is forced to do so only until her case concludes. He only accepted responsibility temporarily. Every day he warns her to urge her brother to speed up the process, he will not continue to look after her because if anything happens to her, he will be responsible. Every time her brother telephoned, he asked her when he was going to take her with him and he is threatening to throw her out on the street in a strange country. She emphasised in line with the sponsor’s evidence that her current stay arrangement was done by her brother Simon with Andom who only took temporary responsibility. Moreover, there was a statement from Andom himself before the Judge to similar effect as to the temporary nature of the arrangement and the precarious situation in Uganda.
62. At para 16 of the decision letter, it was said that the sponsor had had little involvement in the upbringing of the respondent. But at para 43 and 42 the Judge accepted that he made key decisions for her, found her accommodation, took the decision that she leave Eritrea. This is all beyond normal emotional ties and clearly demonstrates elements of additional dependency on the accepted facts. The implications of IA do not undermine the approach of the Judge as to dependency. The Judge made a finding there is a family life and gives reasons including but not limited to based on the acceptance of the guardianship order. At paragraph 43 he noted even though the sponsor had fled in 2015 that he continued to exert control over key decisions in her life over that length of time as to her fleeing Eritrea, her accommodation, and support.
63. The Judge was clearly entitled to make the findings of fact that he did having heard evidence from the sponsor and considered the documents before him. Whilst there was an absence of further reasoning at [35-36] as to why this would constitute unjustifiably harsh consequences for the sponsor or the respondent, given his findings above, in my judgment the SSHD cannot show that that his findings were irrational or perverse as alleged by her in ground two.
64. In response to the SSHD’s criticism of that the reasons relied on by the Judge to justify his conclusions under paragraph 7.1 come later in the decision under Article 8 and were not dealt with by the Judge under the rules to paragraphs [34 to 36], can be address that Mr Ojo accepted that paragraph 7.1 of the rules does take account of the public interest by reference to the test of “unjustifiably harsh”. Moreover, the Judge did address that test of unjustifiably harsh in substance when dealing with Article 8 and gave detailed reasons and made clear findings there.
65. Whilst in that context and as to ground three, the Judge erred in identifying the test of “real, committed or effective” at [42] in his assessment of Article 8 ECHR in this appeal, rather than additional elements of dependency this error did not in fact materially infect his findings at [42] to [59].
66. The articulation of the test was of course understandable, given the timing. The appeal before the Judge was heard on 12 November 2025 and determined on 30 December 2025. The Court of Appeal heard the SSHD’s appeal in SSHD v IA [2025] EWCA Civ 1516 was heard on 4-5 November 2025, and judgment was handed down on 26 November 2025. However, I find that that articulation as to the test applied in the Judge’s determination on Article 8 are not material, given his actual findings and acceptance of the evidence and when read with findings on ground two with respect to the immigration rule 7.1. being satisfied.
67. As the Court of Appeal said in IA, that the consistent jurisprudence of the European Court of Human Rights has been that "family life" for the purpose of Article 8 is normally limited to the "core" family and there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence, involving more than the normal emotional ties. Hence in IA the FTT and UT had applied the wrong test, that is the "real, effective or committed support" test. The Court held that that test is lower than the additional elements of dependence test, which is the correct test.
68. However, as the Court explained, at para 121, "exclusive or complete dependency is not required." Nevertheless, as the Court said at para 125, it obviously requires some dependence, and "dependence is more than the existence of support, even if that support is qualified by the adjectives real, committed or effective." Whilst one person being completely dependent on another "might normally satisfy the additional elements of dependency test, it is not the only way that the test can be satisfied…"
69. Finally, the Court said at para 128:
"… dependency is different from support. Establishing real, committed or effective support by itself may or may not be sufficient to establish additional elements of dependency for the existence of family life between adult siblings."
70. First here the Judge found at [42] that there was a “dependency” between the respondent and the sponsor that had existed since 2012 when she was 4 years old. This was on his findings in substance that there were additional elements of dependency over and above normal emotional ties.
71. The Judge did in fact find in substance that there were additional elements of dependency as he noted at [42] which was real, effective and committed. His findings that follow at [43] as to their family history, at [44] as to their relationship and at [58] as to their current inter-dependency clearly demonstrate that met the test of additional elements of dependency over and above normal emotional ties, and that the elements of Article 8 are met here. Moreover it cannot be said as alleged that the Judge erred in focussing on the respondent rather than the sponsor. In any event his reasoning on Article 8 and proportionality was primarily based on the respondent being able to come within paragraph 7.1 of the immigration rules.[58].
72. As to the Judge’s comment at [59] where he states that he is balancing the private interests of the respondent as against the public interest, whilst this is an unfortunate turn of phrase it does not show that he was as contended by the SSHD equating the respondent with ‘private life’ rights which conflict with the principle in Abbas. In my judgment having found that there was a relationship of de facto parent with the sponsor who was her legal guardian, and the respondent as a minor, that this was sufficient to satisfy the jurisdictional peg required by Abbas per paragraph 25 of the judgment of Burnett LJ (as he then was) to found an Article 8 claim here.
Notice of Decision
1. The Secretary of State’s appeal is dismissed.
2. The decision of the First-tier Tribunal Judge involved the making of an error of law on ground one with respect to the determination of the appeal under the Immigration rules 5.1 and that aspect is set aside.
3. There was no material error of law by the Judge in allowing the appeal on the alternative basis under the immigration rule 7.1.
4. The errors identified above as to the Judge’s conclusions on Article 8 ECHR were not material to the determination of the appeal.

S Naik KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 August 2026