Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001399
UI-2026-001401
UI-2026-001402

FtT No: HU/52635/2024
LH/02017/2025
HU/52650/2024 LH/02150/2025
HU/52638/2024 LH/02018/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 October 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA
DEPUTY UPPER TRIBUNAL JUDGE BIBI

Between

Latifa Hasib
Qareebulah Hasib
Samiulah Hasib
(ANONYMITY ORDER NOT MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Mohammed Osmani, Counsel
For the Respondent: Mr Kevin Ojo Senior Home Office Presenting Officer

Heard at Field House on 27 July 2026

DECISION AND REASONS
1. The appeal before us concerns the decision of First-tier Tribunal Judge Mulholland (‘the Judge’) promulgated on 09 December 2025.
Background to the appeal
2. The appellants are nationals of Afghanistan. They are the spouse and adult children of the sponsor. Their appeal before the FtT concerned the respondent’s decisions dated 7 February 2024. The respondent refused the appellants’ applications for entry clearance for Family Reunion (Protection) under the Immigration Rules.
3. In summary the respondent was not satisfied that the appellants meet the validity requirements set out in the Immigration Rules. The respondent noted that the sponsor was naturalised on 27 February 2008 and he does not therefore have protection status in the UK. The respondent also noted that the appellants live in Afghanistan, a country listed under Appendix Tuberculosis (TB) of the Immigration Rules. The appellants were required to provide a TB Certificate from an approved test clinic as part of their application. The respondent said the appellants had failed to provide a valid TB Certificate with their application.
4. As the application was made before 12 April 2023, the respondent considered whether that are any compelling compassionate factors which may warrant a grant of leave outside the Immigration Rules. The respondent concluded that there are no exceptional circumstances which would make this refusal of the applications a breach of Article 8 ECHR, nor would the refusal result in unjustifiably harsh consequences for the Appellants and their Sponsor.
The decision of the First-tier Tribunal (IAC)
5. The appellants appeals were heard by the judge on 30 October 2025. The appeals were dismissed for reasons set out by the judge in a decision dated 9 December 2025.
6. The judge outlined the issues in the appeal at paragraph [3] of the decision. They include (i) whether the appellants meet the Immigration Rules; (ii) whether the refusal constitutes a breach of the appellants’ Article 8 ECHR right outside of the Rules; and (iii) whether the appellants have provided a valid TB Certificate from an approved test clinic under Appendix TB of the Immigration Rules.
7. At paragraph [12] of the decision, the judge recorded:
“It is not in dispute that the Appellant’s cannot succeed under the Family Reunion Rules as the validity requirements are not met as the sponsor does not currently have protection status in the UK. Home Office records show that he was naturalised on 27 February 2008. As the applications were made before 12 April 2023, I have to consider whether there are any compelling compassionate factors which may warrant a grant of leave outside the Immigration Rules.”
8. The judge concluded the appellant’s cannot meet the requirements set out in the Immigration Rules, Appendix Family Reunion (Protection). Furthermore, at [16], the judge said:
“The 1st Appellant has not satisfied the English language requirement or provided a TB certificate for any of the Appellants. They cannot meet the financial requirements of Appendix FM as the sponsor is not working.”
9. The judge summarised the claim made by the appellants at paragraph [15] of the decision:
“The Appellants live in Afghanistan. They claim that they are at risk from the Taliban and have been in hiding after one of the children was assaulted because of his father’s activity. Their father came to the United Kingdom in 2002 and was given limited leave to remain for 4 years, as was common at that time. He claimed a fear of the Taliban at that time however has since returned to his country of origin and visited them for a period of 8 months without incident. The 1st Appellant is the children’s mother. It is said that she has health issues and that she requires medical treatment that is not available in Afghanistan. The children’s uncle is a Major in the Taliban and will attempt to recruit the children, which is not in their best interest. Their interest lies in coming to the United Kingdom to be with their father.”
10. The judge set out her analysis of the Article 8 claim made by the appellants at paragraphs [17] to [35] of the decision. In summary, the judge rejected the claim made by the first appellant that there are no facilities in Afghanistan to obtain a clear TB certificate. She noted the sponsor’s claim that he had recently spent eight months in Afghanistan, supported by an e-ticket. She rejected the claim made that the passport obtained by the first appellant that was used for travel to Pakistan in 2022, was obtained through the payment of a bribe. The judge said that the fact that the first appellant had obtained a passport after the Taliban took control in August 2021, had been able to travel to attend medical appointments, and travel to Pakistan, strongly indicates that the appellants are not in hiding as they claim. The judge noted that having been granted exceptional leave to remain in the UK in 2002, the sponsor returned to Afghanistan recently, was able to travel to and from Afghanistan, and remain there for eight months without incident.
11. The judge referred to s117B of the 2002 Act and again noted that insofar as the public interest in effective immigration control is concerned, the appellants are unable to satisfy the requirements for a grant of leave to remain under the rules. The judge found that Article 8(1) is engaged. In striking the balance between the competing public interest and individual interests, the judge said that she was not satisfied that the appellants are in hiding or at risk from the Taliban. She was not satisfied that their uncle is a ‘Taliban Major’. She was satisfied that the appellants can access medical treatment as they have in the past.
12. The judge concluded there is insufficient evidence to show that there would be a detrimental effect on the children (now adults) should the appeal be refused and that it would not be unduly harsh for the appellants to remain in Afghanistan. The judge concluded:
“35. I have considered the objective country information. It shows in general, difficult circumstances. However, the Appellants have managed to live there without the Sponsor since 2002 and there is only 1 incident complained of relating to one of the children hurting his head. This provides a strong indication that they can manage there without it being unduly harsh. The CPIN does not say that women are at risk only on account of their sex. The 1st Appellant has 2 adult son’s to provide protection. More is needed. I have not been provided with a sufficiency of evidence to demonstrate that they would be at risk.
36. Given the above findings and conclusions, I find that the Appellants have failed to discharge the burden of proof to show that refusal of entry clearance would give rise to unjustifiably harsh consequences to them and/or the Sponsor and would not be disproportionate to the legitimate public end sought to be achieved. I find that the Appellants have not discharged the burden of proof that such refusal would cause the United Kingdom to be in breach of its obligations under Article 8 and therefore the appeals are dismissed.”
Appeal to the Upper Tribunal
13. The appellants sought permission to appeal on six grounds. The appellants claim the judge materially erred in the assessment of the evidence and conclusions she reached.
(i) First, the judge failed to engage adequately with the evidence and submissions concerning the risk of gender-based harm to the first appellant in Afghanistan.
(ii) Second, the judge erred in placing undue weight on the appellants’ separation from the sponsor since 2002. The appellants claim that this approach failed adequately to assess their present circumstances and the current conditions in Afghanistan.
(iii) Third, the judge failed to apply or adequately consider the Court of Appeal’s guidance in IA & Others v SSHD [2025] EWCA Civ 1516 when conducting the Article 8 proportionality assessment.
(iv) Fourth, the appellants claim the judge misdirected herself as to the applicable legal framework, in the Article 8 assessment by treating the appellants’ inability to satisfy the English language, financial, and tuberculosis-testing requirements set out in the Immigration Rules, as matters weighing against them within the broader assessment of proportionality.
(v) Fifth, the appellants claim the judge provided inadequate findings and reasons in relation to Article 8 family life and proportionality, including the nature and extent of the dependency between the sponsor and his adult children.
(vi) Sixth, the appellants claim the judge drew irrational or otherwise “unsafe adverse inferences” concerning risk, the appellants’ ability to remain in hiding, and the wider country context in Afghanistan, and that those findings materially influenced the proportionality assessment.
14. Permission to appeal to the Upper Tribunal was granted on all grounds by Upper Tribunal Judge Meah on 6 May 2026.
15. The respondent has filed a Rule 24 response dated 21 May 2026, opposing the appeal.
Submissions
16. At the outset of the hearing, we observed that the grounds of appeal are lengthy and lack focus. Mr Osman nevertheless confirmed that he relies upon all six grounds.
17. In advancing Ground 1, he submitted, in substance, that the judge had erred in her assessment of the first appellant’s circumstances as a woman living in Taliban-controlled Afghanistan. He referred us to paragraphs [26], [28] and [30] of the decision. He accepted that paragraph [28] did not disclose an error. Rather, he submitted that the judge had approached the case through the lens of appellants’ inability to satisfy the requirements of the Immigration Rules. He argued that this approach permeated the judge’s reasoning and improperly influenced the Article 8 assessment. In essence, he submitted that the judge placed excessive weight on appellants’ failure to meet the requirements of the Rules. We pointed out that an appellant’s inability to meet the requirements of the Immigration Rules is a matter that undoubtedly weighs against the appellants in the Article 8 proportionality assessment. Mr Osman accepted the reasoning at paragraphs [32] to [36] of the decision are concerned with matters outside the Immigration Rules.
18. In relation to Ground 2, Mr Osman submitted that the first appellant’s position as the sponsor’s spouse, is different from that of the two adult children, although all three appellants form part of the same family unit. Referring to the decision of the Court of Appeal in IA, he submits the assessment of family life required consideration of the nature of the separate relationships. Whilst the two adult children had not lived with their father for most of their lives, they remained dependent on their parents. He submitted that the judge failed properly to take account of the family’s circumstances, and the involuntary nature of the separation. Although not challenging the primary findings of fact, he submits the reasoning at paragraphs [34] and [36] of the decision is flawed because insufficient weight was given to the depth of the family relationships and the consequences of continued separation, leading the judge to conclude, erroneously, that refusal would not result in unjustifiably harsh consequences. Mr Osman placed considerable reliance on the fact that the first appellant’s marriage to the sponsor had survived the separation.
19. Turning to Ground 3, Mr Osmani submitted the judge failed to apply, or adequately consider, the guidance of the Court of Appeal in IA when carrying out the Article 8 proportionality assessment. He acknowledged that the appeal was heard by the judge on 30 October 2025 and that the decision was promulgated on 9 December 2025. Although the judgment in IA was handed down on 26 November 2025, prior to the First-tier Tribunal's decision being issued, he submitted that the judge did not take account of the guidance contained in that judgment.
20. Mr Osman acknowledged that the judge was entitled to make the findings that she did at paragraphs [32] and [33] of the decision and the appellants do not seek to challenge them. In particular, the judge had found that she was not satisfied that appellants’ uncle was a Taliban Major and that the appellants had access to medical treatment. Mr Osman’s disagreement lay not with those findings themselves, but with the weight attached to those finding in the overall assessment of proportionality.
21. Mr Osman made no further submissions on Grounds 4, 5 and 6 and relied on the grounds of appeal.
22. In response, Mr Ojo relied on the Rule 24 response. He submitted that the findings at paragraphs [28], [32] and [33] are unchallenged and demonstrate that the judge had correctly directed herself to the relevant considerations. The judge expressly accepted that Article 8(1) was engaged and that family life existed between the appellants and the sponsor. She then proceeded to consider Article 8(2) and concluded that the refusal of entry clearance constituted a proportionate interference, taking into account all the relevant circumstances. In particular, the judge found that family life could continue notwithstanding the refusal. Mr Ojo submitted that the grounds amounted to no more than a disagreement with findings and conclusions that were properly open to the judge on the evidence before the Tribunal.
23. At the conclusion of the hearing, we confirmed that we are satisfied that the decision of the First-tier Tribunal discloses no material error of law. We informed the parties that we therefore dismiss the appeal and our full reasons for doing so will follow in writing. We now set out those reasons.
Decision on the Appeal
24. The principles and cautious approach to be applied by an appeal court to first instance findings of fact are well established and set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. We remind ourselves of the role of the First-tier Tribunal as an expert Tribunal and also bear in mind that a determination should not be ‘picked over’ or subjected to narrow textual analysis: HA (Iraq) v SSHD [2022] UKSC 22, 1 WLR 3784 at §72.
25. We turn to address each of the grounds of appeal. First, the appellants claim the judge failed adequately to engage with the evidence and submissions concerning the risk of gender-based harm to the first appellant in Afghanistan. We do not accept that submission. The judge referred to the evidence before the Tribunal and at paragraph [22] of the decision, the judge said the evidence indicates that the first appellant does not fear the Taliban as claimed and leaves a doubt as to whether the family are in hiding. The judge noted the appellants attend medical appointments, and travelled to Pakistan in 2022, indicating they are not in hiding as claimed.
26. The judge therefore expressly considered and rejected the factual basis upon which the claim was advanced. At paragraph [35] of the decision, the judge considered the background evidence and accepted that conditions in Afghanistan were generally difficult. However, she noted that the appellants have lived there without the sponsor since 2002 and that the evidence disclosed only a single incident involving injury to one of the children. The judge was entitled to regard these matters as a strong indication that the appellants had managed, and could continue to manage, without the sponsor's presence. The judge further noted that the CPIN did not establish that women are at risk solely by reason of their sex and that the first appellant had two adult sons available to provide support and protection. This ground amounts to a disagreement with findings that were open to the judge on the evidence and discloses no material error of law.
27. Turning to Ground 2, it was argued that the judge erred in treating the family’s separation since 2002 as a strong indicator that continued separation would not result in unduly harsh consequences. Mr Osman submitted that this finding was not open to the judge because she had failed to engage with the material change in country conditions following the Taliban’s return to power in August 2021, thereby conflating two materially different periods. He argued that the relevant question was not whether the family had managed historically, but whether continued separation was proportionate in the circumstances prevailing at the date of the hearing.
28. We do not accept that submission. Nowhere in the decision did the judge criticise the appellants for the historic separation. Rather, the judge accepted that, notwithstanding the Sponsor’s absence since 2002, the children had been well cared for by their mother and that the family unit had remained intact. The judge was entitled to take account of the family’s history and the way in which relationships were maintained when assessing the impact of continued separation. Moreover, the judge did not overlook current conditions in Afghanistan, having considered the background evidence at paragraph [35] of the decision. The family’s ability to maintain family life despite the sponsor’s lengthy absence was treated as one factor in the overall proportionality assessment, and not as determinative of the outcome. Accordingly, this ground discloses no material error of law.
29. Turning to Ground 3, it was submitted that the judge failed to apply the guidance of the Court of Appeal in IA. That submission is without merit. The Court of Appeal in IA did not find that family life existed between the sponsor and the relevant family members; paragraphs [130] to [136] In contrast, in the present appeal, the judge expressly accepted that family life, within the meaning of Article 8(1), existed between the sponsor and the appellants. Having made that finding, the judge proceeded to consider whether the refusal of entry clearance constituted a disproportionate interference with that family life for the purposes of Article 8(2). The judge concluded that it did not.
30. The reliance placed by the appellants on IA is misplaced. The Court of Appeal made clear that the Upper Tribunal had erred in its assessment of proportionality under Article 8(2). At paragraphs [145]-[168], the Court identified a number of errors in the balancing exercise and held that, even if family life had existed between the sponsor and the family, the appeal should not have succeeded.
31. We accept the submission made on behalf of the respondent that the Court of Appeal in IA emphasised that significant weight must be given to the Immigration Rules, as they reflect the Secretary of State’s assessment of what is required for the country’s economic well-being and the protection of the rights of others. Paragraph [12] clearly states: -
“Thirdly, we have concluded that the UT made several errors in undertaking the proportionality balance under article 8(2). Even if, contrary to what we have decided, family life had existed between the sponsor and the family, the balance should not have been determined in favour of granting the family entry clearance. Very exceptional or compelling circumstances had not been shown. The UT was wrong to pay so little regard to the immigration control policies of the SSHD and the UK Government, as reflected in the Rules, as expressing what was necessary in the interests of the economic well-being of the UK and for the protection of the rights of the citizens of the UK. The UT wrongly over-stated the importance of the family’s short-lived family life with the sponsor (had it existed at all), the best interests of the children of the family and the admittedly serious risks faced by the family in Gaza.”
32. In the present case, the judge found that the requirements of the Immigration Rules are not met, as set out at paragraphs [12] and [14] of the decision. Accordingly, considerable weight was required to be given to the public interest when conducting the Article 8 proportionality assessment. The fact that the appellants could not satisfy the requirements of the Rules was a matter weighing against them in the balancing exercise.
33. The Court of Appeal accepted that in undertaking the proportionality assessment under Article 8(2), the court is looking primarily at the Article 8 rights of those persons within the jurisdiction of Article 1 of the ECtHR (in this case, the sponsor). In IA the Court of Appeal said: -
“11. If there had been family life between the sponsor and his family (as found by the FTT), it would have been appropriate to have regard to the unitary nature of that family life (see Beoku-Betts at [4], [20] and [41]-[43]). We accept, however, that, in undertaking the proportionality balance under article 8(2), the court is looking primarily at the article 8 rights of those persons within the jurisdiction of article 1 of the ECtHR (in this case, the sponsor).”
34. The Court of Appeal also held that the Upper Tribunal erred by placing excessive weight on the humanitarian crisis and risks faced by the family in Gaza. By analogy, the respondent submits that here, the current circumstances in Afghanistan, where the background evidence does not disclose a crisis anywhere near comparable to that in Gaza, cannot constitute a significant factor in the proportionality assessment. The Court of Appeal said:
“158. It is necessary, in this as in other connections, to consider closely the actual wording of article 8(2) itself. As we pointed out at [8] above, article 8(2) prohibits interference by a public authority with the exercise of the right to family life, except "such as is in accordance with the law and is necessary in a democratic society in the interests of … the economic well-being of the country … or for the protection of the rights and freedoms of others". As Lord Reed made clear in Agyarko (see [109]-[112] above), in considering how the balance is struck in individual cases, the courts "have to take the [SSHD's] policy into account and to attach considerable weight to it at a general level, as well as considering all the factors which are relevant to the particular case". The requirement for "exceptional circumstances" for leave to remain (and therefore also entry clearance) to be granted outside the rules was not inconsistent with either the ECtHR or domestic authorities, and section 117B(1) of the Nationality, Immigration & Asylum Act 2002 required consideration to be given to the maintenance of effective immigration controls.”
35. The Court of Appeal in IA reaffirmed that permission to enter the UK outside the Rules was only to be granted in very exceptional or compelling circumstances. The Court of Appeal said:
“169. For the reasons we have explained, the UT was wrong to attach the weight it did to: (i) the sponsor’s family life with the family and the development of that family life in the future, and to (ii) the best interests of the children and the risks they faced in a war zone. Most importantly, however, the UT wrongly failed to attach appropriate weight to the immigration policies of the SSHD as reflected in the Rules. It is the responsibility of the SSHD and the Government to make policy decisions as to what is necessary to protect the economic well-being of the UK and the rights of citizens of the UK. The courts and tribunals must respect those policy decisions and not seek to get around them save in very exceptional or compelling circumstances.”
36. Further, had the Court of Appeal held that family life existed between the sponsor and the family in Gaza (as the FTT and UT held), it would have determined that there were no very exceptional or compelling circumstances justifying the grant of entry clearance to the family outside the Rules, or, to put the matter another way, it would have determined that refusal of entry clearance was not a disproportionate interference with the family life, had it existed ([169] to [175]).
37. In any event, IA does not assist the appellants. It is common ground that they do not meet the requirements of the Immigration Rules. IA reaffirms that considerable weight must be attached to the Rules in the Article 8 balancing exercise and that leave outside the Rules is reserved for exceptional or compelling circumstances. The judge accepted that family life existed between the appellants and the sponsor and conducted a full proportionality assessment on that basis. The findings of fact underpinning that assessment are not challenged. In those circumstances, express consideration of IA would not have altered the judge’s reasoning or conclusion.
38. It is correct that the judge did not refer to IA. The appeal was heard on 30 October 2025, before that judgment was handed down on 26 November 2025. Although the judge’s decision was promulgated thereafter, we are satisfied that reference to IA would have made no material difference to the outcome. Accordingly, this ground discloses no material error of law.
39. As far as Ground 4 is concerned, the appellants claim the judge misdirected herself as to the applicable legal framework by conflating different immigration routes and by placing undue weight on public interest considerations arising from appellants’ failure to meet the requirements of the Immigration Rules. Reliance was placed on paragraphs [16] to [19] and [28] to [30] of the decision, where the judge referred to the English language, financial requirements, and the requirement to provide a TB certificate. Mr Osman submitted that in light of Agyarko, the Rules operate as a proportionality benchmark rather than a checklist and that the judge had unlawfully inflated the public interest by taking account of requirements arising under routes that were not applicable to the appellants.
40. We do not accept that submission. It was common ground that appellants do not satisfy the requirements of the relevant Immigration Rules. In assessing proportionality under Article 8, the judge was entitled to have regard to that fact. Read as a whole, the decision does not demonstrate that the judge treated non-compliance with Appendix FM, Appendix TB, or any other immigration route as determinative of the outcome, nor that she artificially enhanced the public interest by reference to unrelated provisions of the Rules. Rather, the judge considered appellants’ inability to meet the relevant requirements as one factor within the broader proportionality assessment, alongside the evidence relating to family life, the circumstances in Afghanistan, and the position of the individual appellants and sponsor. We are not satisfied that the judge misdirected herself in law or applied the wrong legal framework. This ground too discloses no material error of law.
41. Turning to Ground 5, the appellants claim the judge failed to make adequate findings on the existence of family life between the sponsor, the first appellant and the adult children and did not conduct a structured Article 8 proportionality assessment. We do not accept that submission. At paragraphs [30] and [31], the Judge expressly accepted that Article 8(1) is engaged and that the appellants are a family. She plainly considered the spousal relationship. Having proceeded on the basis most favourable to appellants, it was not necessary for the judge to make additional findings on dependency between the sponsor and the adult children before considering proportionality.
42. The judge then undertook the required balancing exercise. At paragraph [30], she stated: “Although Article 8(1) is engaged... To strike a fair balance between the competing public and individual interests involved, I adopt a balance sheet approach.” The decision demonstrates that the judge identified and weighed the factors that weigh in favour of the appellants’ against those that weight against them. In doing so, she considered the family’s circumstances, the position of the adult children, the sponsor’s lengthy absence, and conditions in Afghanistan. The conclusions reached by the judge were open to the judge on the evidence before the Tribunals and the unchallenged findings made.
43. Finally, as far as Ground 6 is concerned, it is claimed that the judge drew irrational or legally unsafe inferences regarding the risk, the appellants claimed need to live in hiding, and the country conditions in Afghanistan. We do not accept that submission. The judge considered appellants’ claims and gave adequate reasons for the findings she made and their relevance to the assessment of proportionality. The findings underpinning that assessment have not been challenged and were properly open to the judge on the evidence. The judge was entitled to conclude that the evidence does not establish the level of risk alleged. This ground amounts to no more than a disagreement with findings of fact and the weight attributed to the evidence. Accordingly, Ground 6 discloses no material error of law.
44. Read as a whole, the decision contains an adequately reasoned proportionality assessment. The fact that the balancing exercise resulted in a conclusion adverse to appellants does not disclose any material error of law. The grounds taken individually or cumulatively amount to no more than a disagreement with findings and conclusions that were properly open to the judge and discloses no material error of law
Notice of Decision
45. The decision of the First-tier Tribunal does not disclose a material error of law requiring it to be set aside. The decision of the FtT shall therefore stand.
46. The appeal to the Upper Tribunal is dismissed.

T Bibi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 October 2026