Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001372
First-tier Tribunal No: HU/54674/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

ANILA NOKU
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Fisher, Counsel instructed by AJ Jones Solicitors
For the Respondent: Mr A Sheilh, Senior Presenting Officer.

Heard at Field House on 10 July 2026

DECISION AND REASONS

1. The appellant is a citizen of Albania. She arrived in the UK on 13 November 2022 as a visitor. She applied on 21 March 2024 for leave to remain based on her relationship with her British partner and child. Her human rights claim was refused, and her appeal to the First-tier Tribunal was dismissed by the First-tier Tribunal in a decision dated 16 December 2025. The appellant now appeals to the Upper Tribunal.

Background

2. The appellant is an Albanian national. She met her partner whilst he was on holiday in Albania. She came to the UK as a visitor in November 2022 and overstayed her visa. She married her partner on 26 August 2023. The couple have a child born in August 2024. The appellant applied for leave to remain in the UK.

3. The respondent refused the human rights claim. The appellant did not meet the Immigration Status Requirement of Appendix FM as she had overstayed her visa; it was accepted that all the other substantive requirements of Appendix FM were met. The respondent did not accept that EX.1. was met as there were no insurmountable obstacles to the appellant’s family life with her partner continuing in Albania (the appellant’s child was not born at the date of the respondent’s decision).

4. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Wilding on 16 October 2025.

5. Judge Wilding dismissed the appellant’s appeal in a decision dated 16 December 2025.

6. The appellant submitted grounds of challenge. These were rejected by the First-tier Tribunal. However, on renewal to the Upper Tribunal, by decision dated 29 April 2026 Judge Lodato granted permission on the following terms:

The applicant seeks permission to appeal against the decision to dismiss her appeal on Article 8 human rights grounds. The central argument which overlaps across the first and third grounds is that the judge did not adequately or lawfully assess the best interests of her British infant child or the reasonableness of him being required to leave the UK with his mother while an application for entry clearance was pursued. There is arguable force to the suggestion that the judge has unlawfully downplayed the impact on the child of being separated from his British father while an application was made from Albania to return. The characterisation of the relationship between the father and his 15-month child as merely embryonic arguably unlawfully minimises a relationship of fundamental importance to the child. The judicial analysis arguably did not grapple with the proposition that an uncertain period of separation from his father would be contrary to the child’s best interests, which is a primary consideration which must be carefully and fully evaluated. It is also arguable that the balancing exercise did not adequately reflect the facts which weighed in favour of the appellant’s family life continuing in its current form in circumstances where the child could not be held responsible for the unwise immigration decisions made by his parents.

I have my doubts about the strength of ground 2 in the absence of any indication that the judge was directed to the nuanced interpretation of the Immigration Rules which might mean a period of separation would be lengthier than the anticipated 12 weeks. I do not restrict the grant of permission, but the appellant may need to provide an evidential foundation for any suggestion that the judge disregarded a point which was advanced. If the point was not raised, it is likely to fall foul of the issues-based approach which parties should be following in this jurisdiction.

7. Thus, the matter came before me to determine whether Judge Wilding’s decision involved the making of an error on a point of law.

The Hearing

8. Ms Fisher relied on the grounds and her skeleton argument. She submitted that the Judge had failed to make a proper assessment of the best interests of the child. She submitted that the Judge had impermissibly minimised the role of the father in the child’s development.

9. Ms Fisher submitted that the Judge had failed to consider exceptional circumstances as per GEN.3.2. of Appendix FM. There was no assessment of whether there would be unjustifiably harsh consequences if the appellant were removed to Albania.

10. Mr Sheikh relied upon the Rule 24 Response which he had drafted. He submitted that the Judge had adequately considered the best interests of the child. Mr Sheikh submitted that the grounds were a mere disagreement with the decision. He submitted that the findings were open to the Judge in the evidence presented.

11. Mr Sheikh submitted that the Judge had looked at proportionality and exceptional circumstances. He accepted that the findings were not set out in an ideal manner, but, when read holistically, the decision is sufficient.

12. Ms Fisher briefly responded. She stated that the findings were not adequate. The crucial factor is that the child is British. She submitted that there was a lack of reasoning, particularly on GEN.3.2. and the best interests of the child.

13. After hearing the submissions, I reserved my decision.

Discussion and Analysis

14. When considering whether the judge made a material error in law in dismissing the appellant’s appeal, I have reminded myself of the following principles.

15. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached (see paragraph 36 of South Bucks County Council v Porter [2004] UKHL 33).

16. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal confirmed that unless the First-tier Judge’s findings are “rationally insupportable”, the Upper Tribunal should not interfere with findings of fact by the First-tier Judge who had seen and heard the oral evidence.

17. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in paragraph 26 of Ullah v SSHD [2024] EWCA Civ 201.

18. I have carefully considered the Judge’s decision in the round, bearing the above guidance in mind. However, I find that the decision is not sustainable and must be set aside.

19. The Judge has failed to adequately consider the best interests of the child. The Judge states that it is “plainly” in the best interests of the child to remain with the appellant. The Judge describes the child as “entirely dependent on the Appellant for his every need.” The Judge then states that the child’s relationship with his father is “embryonic.”

20. I find that the Judge has failed to adequately consider the role the father plays in the child’s life. There is no assessment of the impact on the child of any separation from his father and whether this would be contrary to the child’s best interests. I find that the characterisation of the relationship between the father and his child as merely “embryonic” unlawfully minimises a relationship of fundamental importance to the child.

21. In my judgment, had proper consideration been given to the significance of the child's relationship with his father and the consequences of separation, the outcome of the proportionality assessment could realistically have been different.

22. Therefore, I find that Ground 1 is made out as the Judge has materially erred in law in the assessment of the best interests of the child.

23. Ms Fisher’s skeleton argument deals next with Ground 3, and I agree that this is a sensible order in which to approach matters.

24. I find that Ground 3 is made out. The Judge neither referred to GEN.3.2 of Appendix FM nor engaged with the substance of the assessment required by that provision. There was no clear assessment as to whether there were exceptional circumstances in this case such that refusal would result in unjustifiably harsh consequences for the appellant, her partner or her child.

25. There is no reference to this test and no consideration of the relevant issues. I accept the premise of Mr Sheikh that the decision must be read as a whole and that it is not legally essential to set out the relevant law. If the correct principles had been applied in practice, then this would be sufficient.

26. However, the Judge neither referred to GEN.3.2 nor engaged with the substance of that assessment. It is not possible to read the decision as addressing this matter, which is essentially the same as the usual Article 8 proportionality assessment.

27. The decision contains no meaningful assessment of the consequences for the child of either accompanying the appellant to Albania or remaining separated from his father during any period in which an application for entry clearance was pursued. Nor does it engage with whether the disruption to the existing family unit would result in unjustifiably harsh consequences for the child or either parent. Those were centrally relevant matters in assessing whether exceptional circumstances existed and in conducting the balancing exercise required by Article 8.

28. The Judge reaches a conclusion in [27] that it is “entirely proportionate” for the appellant to be removed to Albania, but there is insufficient reasoning provided to be able to understand how that conclusion was reached.

29. In my judgment, had these matters been properly considered, the outcome of the proportionality assessment could realistically have been different. The omission is therefore material.

30. I agree with Judge Lodato in his grant of permission that Ground 2 is less clear cut. The Immigration Rules changed on 11 November 2025, which was some weeks after the hearing but some weeks before the decision was promulgated. It would certainly have been preferable if the parties had drawn the Judge’s attention to the change in the Immigration Rules prior to the finalising of the decision. However, there is no obligation on a judge to trawl through every change in the Immigration Rules to see if there is anything that will impact on their decision; the obligation in this regard remains with the parties.

31. Thus, I find that Ground 2 does not disclose an error of law. However, as the appeal succeeds on the other grounds and will need to be reheard, the impact of change in the Immigration Rules can be considered at that stage.

32. Overall, I find that Grounds 1 and 3 succeed and I find that the decision is legally flawed and must be set aside.

33. I have carefully considered the issue of disposal. There is a significant amount of fact-finding to be undertaken. Thus, applying the guidance in paragraph 7 of the Senior President's Practice Statement and AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), given the issues and the extent of fact-finding that will be required, I am satisfied that the appeal should be remitted to the First-tier Tribunal.

Notice of Decision

The First-tier Tribunal has been shown to have made an error of law material to the decision to dismiss the appeal. The determination is set aside. The appeal is remitted to the First-tier Tribunal, Taylor House for a de novo hearing before any judge other than Judge T S Wilding.

C R Cole

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 July 2026